COVID-19 UPDATE FROM TARNOW CRIMINAL LAWLearn More

It is what it is…or is it?

The internet is a precarious place. We buy, we sell, we talk – and we post. And while that’s all fine and good, it isn’t without consequence. Facebook launched in 2004, and since that time Canadian Courts have addressed and analyzed evidence obtained through Facebook and other social media platforms.


Recently, in a 2-1 decision, in R. v. Martin, 2021 NLCA 1, the Newfoundland and Labrador Court of Appeal overturned a lower court’s decision deeming Facebook screenshots as inadmissible. In a 30 page decision, the Court of Appeal explained how the Provincial Court Judge (“PCJ”) had erred in their analysis of the rules of authentication in relation to the proposed electronic evidence.

The case involves allegations that the Accused, Mr. E. Martin, made threats against the Royal Newfoundland Constabulary (police), via pictures and written communication on Facebook. He was charged with being in possession of a knife for a purpose dangerous to the public peace, being in possession of a rifle for a purpose dangerous to the public peace, and uttering a threat to members of the Royal Newfoundland Constabulary.

The police had attended Mr. Martin’s residence one evening to follow up on a domestic disturbance complaint. The investigation went no further than a brief attendance at the Accused’s residence, which resulted in no further action being taken.

The investigation with respect to the charges in this case began when the police received an anonymous tip that the Accused had posted several pictures on Facebook indicating he planned to harm police.

It was the evening following their first visit to Mr. Martin’s residence that the police received the anonymous tip that indicated he had posted a menacing caption, directed at police, combined with photos that included firearms. The police again attended Mr. Martin’s residence, but were clearly not welcomed. They returned to the detachment and tried to view Mr. Martin’s Facebook page, but were unable to view any content. The police then contacted the anonymous tipster to ask if they would email pictures of the postings, which they did. In total, six screen shots were forwarded. The “screenshots” depicted an individual in various poses, kneeling with and holding various firearms that included a rifle and a long gun. The words “Ed’s Post” and “Ed Martin added 4 new photos” appeared as “banners” over the photos, in the typical Facebook font and symbolism.

These screenshots were at the centre of the Crown’s firearms and threats charges against the Accused. A Voir Dire was held to determine the admissibility of the screen shots. Ultimately, the PCJ declined to admit the photos as evidence, reasoning that these items had failed to be authenticated. The PCJ opined that since the anonymous tipster had not been called to give evidence, no one could testify that the screenshots were not altered or changed in anyway. The Court went further to say that there had been nothing to substantiate that the Accused even had a Facebook account, and even if they did, there was no way to determine conclusively that the Accused had been the one to author the posts depicted in the screenshots.

The Accused was convicted of being in possession of a knife for a dangerous purpose (which was found on him at the time of his arrest) but was acquitted on the charges of being in possession of a rifle for a dangerous purpose to the public peace, and uttering a threat to members of the Royal Newfoundland Constabulary. The Crown appealed the PCJ’s decision to rule the screenshots inadmissible – which brings us to the Court of Appeal’s analysis of the issue.

The Court of Appeal was thorough and careful to reiterate its explanation of a key component in their analysis: the threshold for admissibility of authenticated electronic documents under the Canada Evidence Act is low, and can be established by both direct and secondary evidence. The proposed electronic evidence must be capable of supporting a finding that the evidence sought to be admitted is what it purports to be.

The Crown submitted that the PCJ had been erroneous in ruling that the screenshots were not authenticated by the evidence adduced at Trial. At the Voir Dire, 10 witnesses, all police officers, were called including the officer who began the investigation and obtained the screenshots. This police officer testified that he was very familiar with the layout of Facebook, and the screenshots were consistent with what he knows of Facebook. While not accepted by the PCJ as an acceptable form of authentication, the Court of Appeal disagreed and suggested that the officer’s testimony was evidence that the screenshots were authentic. Further, the police officer testified about identifying striking similarities between what they saw when they were in attendance at the Accused’s home – clothing, personal items, layout of the residence – that mirrored what they had seen in two of the screenshots. The Court of Appeal found that this information aided in the authentication of the screenshots, and determined that it was not necessary to have the anonymous tipster’s testimony verifying their authenticity. No evidence to the contrary was introduced by the Defence.

The Court of Appeal stressed that authenticity does not determine authorship – meaning that although the evidence is admissible, it is not determinative of who actually authored the post. As a result of their analysis, the Crown’s appeal was allowed and the case was returned back to Provincial Court for further proceedings. As is standard practice, the Court of Appeal did not comment on what probative value the evidence may have.

The introduction of digital evidence in criminal proceedings will continue to create a myriad of issues for the courts to determine. The Charter was not written with these intricacies in mind – and the responsibility lays not only with the courts, but in the hands of criminal lawyers across the country. If your case involves digital evidence (social media postings, text messages, etc.) it is imperative that you contact experienced and seasoned counsel without delay. We are licensed to practice in British Columbia, the Yukon Territory and the Northwest Territories. 

Prosecuting hate in Canada: Why, How, and When

Section 2 of the Canadian Charter of Rights and Freedoms grants all Canadians the fundamental right of freedom of expression – but as one young man in Markham, Ontario learned this week, the Charter also permits the enforcement of reasonable limits on expression.

 


18 year old Tristan Stronach, a grade 12 student, was charged under section 372(2) of the Criminal Code – making indecent communications – after his instructor had to conclude an online lesson after Stronach allegedly made racist remarks about the black community. The nature of the alleged comments, while not described specifically, has caused some to ask: why isn’t he being charged with a hate crime?

The answer is: because there is no specific “hate crime” offence in the Criminal Code.

Section 372(2) of the Criminal Code reads as follows:

Indecent communications

(2) Everyone commits an offence who, with intent to alarm or annoy a person, makes an indecent communication to that person or to any other person by a means of telecommunication.

“But what about hate speech?”

Section 319(1) of the Criminal Code reads as follows:

Public incitement of hatred

319 (1) Everyone who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of:

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

 Wilful promotion of hatred

(2) Everyone who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

While it has been made clear that the allegations relate to racist comments towards a single identifiable group – the black community – charges under this section were likely not approved because the evidence is unable to support a conviction. The comments were not made in a “public” place, and while they were made in the virtual presence of a group of individuals, they did not promote hatred – i.e.,  the comments weren’t made in such a way that they would result in other individuals following suit and creating a breach of the peace as a result.

Notwithstanding the above, if the accused is convicted of making indecent communications, the court will consider to what degree bias, prejudice, or hate played a role. These are aggravating factors that could result in a harsher sentence. Through this legislative structure, these aggravating factors can be considered for a variety of offences – assault, theft, murder, and so on.

As Canadians, we are very fortunate to live in a country that allows us to speak, move, and exist freely – but cases like this are a reminder that equality reigns supreme.

Body Worn Cameras: What’s The Hold Up?

Over the last couple of months, there has been outcry from the public urging the use of BWC’s (Body Worn Cameras) for Canadian law enforcement. Although initially in response to the growing unrest relating to police brutality in the United States, there are echoes of abandoned intentions from Canadian officials dating back at least a few years. 


Back in 2015, the Office of the Privacy Commissioner of Canada (“OPCC”) issued a publication regarding the use of BWC by police, in collaboration with privacy agencies in Alberta, New Brunswick and Quebec. The remaining Canadian law enforcement agencies from other provinces and territories acted “in consultation”.

For reference: according to the CBC, there were a total of 2 incidents involving the death of individuals at the hands of law enforcement in New Brunswick between 2012 and 2014, 12 incidents in Quebec, and 14 incidents in Alberta. Interestingly enough, British Columbia (on par with Quebec at 14 deaths) and Ontario (with the highest rate of police violence resulting in death in the country at 25 deaths between 2012 and 2014) were only acting in consultation.

The report hails the effectiveness of BWC to capture high quality images, videos, and audio recordings – so effective, in fact, that the OPCC had grave concerns regarding their ability to capture material that could jeopardize the privacy of innocent and uninvolved bystanders.

The report goes on to tout the value of BWC for evidentiary purposes, including analytics so sophisticated that the material obtained would likely be suitable for biometric comparison – aka, facial recognition

There is no arguing the fact that the use of BWC by police has implications for the privacy of citizens in their everyday lives – especially since once fitted, citizens would likely expect on-duty officers to have their devices on a continuous basis as opposed to intermittently.

Benefits of BWC include the ability to review interactions between police and the public, recording communications between the police and suspects in the course of an investigation, identifying potential witnesses, and of course recording interactions between police officers. Many criminal cases involve evidence obtained through the use of dash cams, which provide audio from inside a police cruiser and video from the perspective of the driver. The effectiveness of this technology loses value when the investigation takes place outside of a police vehicle, as the audio often fails to capture intelligible communications between police and a suspect, or between officers themselves. Although the dash cam is kept running, the audio portion is often useless when the interactions between police and a suspect take place outside the vehicle, and the windows of the police cruiser are closed, or if the police/suspect leave the immediate area where the audio is successfully captured.

The report indicates that while continuous recording would undoubtedly provide a greater level of accountability for the actions of police, the threat to personal privacy reigns supreme:

From an accountability perspective, continuous recording may be preferable because it captures an unedited recording of an officer’s actions and the officer cannot be accused of manipulating recordings for his or her own benefit. However, from a privacy perspective, collecting less or no personal information is always the preferred option”

In 2014, the Edmonton Police concluded a pilot project regarding the use of BWC by its officers. The conclusion?:

“The cameras had no effect on police use-of-force incidents and said there was no statistical difference in resolving police complaints”

According to an analysis done by CBC, there were a total of four deaths between 2012 and 2014 relating to officers of the Edmonton Police Service. By comparison, there were 9 deaths in the same period relating to officers of the Toronto Police Service. The results of the Pilot Project may have seen different results in a different jurisdiction.

The Edmonton Police explained that in addition to being ineffective to expose cases of police misconduct, the related expenses were simply unrealistic. Perhaps surprisingly, it’s not the cost of the devices themselves, but the expense to store and manage all of the material collected: somewhere between 6 and 15 million dollars over five years, which also includes hiring personnel qualified for the job. 

Finding the balance between accountability, transparency and oversight of police against the protection of privacy for Canadian citizens is a legitimate and profound task – one that cannot be taken lightly. As the calls for BWC in Canadian law enforcement grow louder, and as Canadians revisit the reality of what it is to be privileged in this country, we can only hope that the values of dignity and equality are recognized as being more valuable than the cost of the equipment that very well could save lives.

Semi-Automatic: Fully Prohibited

On April 18 and 19 2020, Gabriel Wortman was solely responsible for the largest mass shooting in Canadian history, which claimed the lives of 22 innocent people including veteran RCMP Cst. Heidi Stevenson. Wortman, a 51 year old denturist, went on a rampage in Portapique, Nova Scotia using firearms that police suspect were obtained illegally, likely from the United States. Eventually he was cornered at a gas station and died in a shootout with police.

Just shy of two weeks later, Prime Minister Justin Trudeau announced a ban on approximately 1,500 different models of military grade assault-style weapons.  The announcement came as a surprise to no one – back in 2015, the Liberal government campaigned on promises to address gun violence. In addition to banning assault-style weapons, the Liberal government vowed to implement a buy-back program for prohibited firearms, establish red-flag legislation, impose tighter restrictions for proper storage of firearms and licensing, and to grant municipalities the power to ban handguns.

Trudeau’s announcement has sparked outrage among gun owners and enthusiasts, although overall most Canadians are in favour of stricter regulations regarding firearm ownership.

It’s important to understand what the ban actually applies to. It prohibits the sale, transport, import and use of semi-automatic weapons – Ruger Mini-14, M14 semi-automatic, Beretta CX4 Storm, and CSA-VZ-58 to name a few. Fully automatic weapons are already banned in Canada. Semi-automatic firearms were previously classified as either restricted or non-restricted, and will now be classified as prohibited.

So what do you do if you already have these in your possession? That depends.

Due to their classification as prohibited weapons, effected firearms will essentially become useless. In any event, gun owners will not be forced to relinquish them – but they will be provided with an incentive to do so. Though unclear at this point, the Canadian Government will be implementing a “buy back” program for all applicable firearms – aka, you’ll be paid to turn them over. For gun owners wishing to retain their firearms, there will be an option to be “grandfathered” into ownership. Certain terms and restrictions will apply, and will likely turn these weapons into collector’s items.

Unlike in the United States, our Charter does not include a constitutional right to bear arms

For those who choose to do nothing and simply retain their weapons, the consequences could be severe. Being found in possession of a prohibited firearm comes with the potential of spending years behind bars and a criminal record that could negatively impact employment and traveling prospects for life. The Canadian Government has instituted an amnesty period (waiting period) to allow for gun owners to consider their options. In any event, all gun owners must be in compliance, one way or another, by April 2022.

Though there is definitely a tight-knit community of lawful and responsible gun owners in Canada, the point of the ban is to limit access of tactical weapons among Canadians. Unlike in the United States, our Charter does not include a constitutional right to bear arms – so you can be sure that tighter regulations are on the horizon.

The Wheels of Justice Turn Slowly

It has been over one month since the Courts of British Columbia significantly curtailed operations in an attempt to combat COVID-19.


For many of those who work in the legal field, it was this development that made it all real. It quickly became clear that the novel coronavirus had the potential to spread quickly, and the confined space of a courtroom serves as ideal grounds for transmission.  

Despite the coronavirus acting as a proverbial wrench in the gears of justice, the judicial system continues to putter along. This is largely due to increased utilization of technological tools like video/conferencing for court appearances and swearing of affidavits, and relaxing restrictions when it comes to fax/electronic filing of court documents.

Video conferencing isn’t new to the BC court system. As early as 2002, Judges across the province agreed that the technology improved procedural efficiency by facilitating witness testimony from distant locations and allowing interim appearances by video involving counsel from other jurisdictions. Judges also noted the value of video- conferencing for inmates at correctional centres – defeating the purpose of transferring multiple inmates from various correctional centres to various courthouses. The bottom line is that modernizing certain aspects of the criminal justice system makes sense financially and systemically – and events like COVID-19 demonstrate how it can have occupational benefits too.

At present, there is enormous value in modernizing certain judicial processes for two reasons – one, to limit face-to-face interactions between judicial staff, defence counsel and an Accused person, and two, to mitigate the consequences of what can only be described as colossal delay.

In reducing operations, the majority of criminal trials scheduled between March 18, 2020 and June 1, 2020, have been adjourned generally to dates in June and July, 2020. Cases that are deemed to be of an urgent nature will be able to proceed, although in a procedural sense, things will look different – for example, witnesses who would ordinarily appear before the Court to give evidence may be authorized to testify via video. For the most part, however, trials will proceed at a date that is likely much later than originally anticipated.

 

The situation is more grim for accused persons in custody awaiting their trial. Inmates are, of course, among the most vulnerable to contracting the novl coronavirus – a concern that was a topic of discussion before the courts closed – but didn’t really become part of the actual narrative until it was too late Trials for accused persons in custody have also been adjourned (for trials scheduled between March 23 and May 16, 2020).  Sentencing hearings and bail hearings for accused persons will proceed. This could be positive – for some, it might result in their immediate release from the correctional system. For others, further incarceration for as little as an additional 90 days in custody will be devastating, a potential death sentence. 

It is far too early to gauge how overwhelmed the court system will be at the return to business as usual – but when you consider that there was a huge backlog before COVID-19 shut it all down, it seems only reasonable that extreme measures – such as implementing night/weekend court, and permanently authorizing certain modernization measures – will need to be taken to truly return to normal.