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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. 

Fake ‘til you ….get arrested

Whenever incidents relating to terrorism in Canada hit the news, the eyes of Canadians widen with revolt. Recent headlines elicited a similar response, with a healthy dose of confusion and curiosity added to the mix.  


On September 21, 2020, criminal charges were announced against 25 year old Ontario resident Shehroze Chaudhry – but not due to allegations of committing acts of terrorism. Rather, Chaudhry has been charged under Section 83.231(1) of the Criminal Code – perpetrating a hoax regarding terrorist activity:

83.231 (1) Every one commits an offence who, without lawful excuse and with intent to cause any person to fear death, bodily harm, substantial damage to property or serious interference with the lawful use or operation of property:

(a) conveys or causes or procures to be conveyed information that, in all the circumstances, is likely to cause a reasonable apprehension that terrorist activity is occurring or will occur, without believing the information to be true; or

(b) commits an act that, in all the circumstances, is likely to cause a reasonable apprehension that terrorist activity is occurring or will occur, without believing that such activity is occurring or will occur.

Chaudhry was a frequent guest on an award winning New York Times podcast known as “Caliphate”. He spoke, in gruesome detail, of his time as an ISIS executioner in Syria, among other things. But the charges levelled against him assert that his personal experiences as an ISIS soldier are fabricated.

While the NYT claimed to have verified his role in ISIS, he gave conflicting accounts to CBC, even going so far as to say he would take a polygraph to prove he had never killed anyone. He likely thought this would absolve him any criminal liability relating to terrorism offences in Canada, but the charges against him refute this misconception.

The details released from the police don’t specify if any other person was harmed or killed due to the alleged yarn by Chaudhry, but they will play a determinative role if he is convicted. The sentences range from a fine and imprisonment in a provincial correctional institution if prosecuted summarily, to life imprisonment should Crown proceed by indictment.

Chaudhry’s case demonstrates that Canadian jurisprudence condemns all activity relating to terrorism – whether it’s the real deal or not.

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.

Bill C-75: The bad, the worse, and the ugly

On March 29, 2018, Bill C-75 had its first reading in the House of Commons, and upon publication, was quick to receive scrutiny from lawyers across the country.

The Bill seeks to amend provisions of several key pieces of legislation, including the Criminal Code and the Youth Criminal Justice Act. However, in doing so, many rights currently afforded to an Accused will become a thing of the past.

The first major concern that stands out is the proposal to abolish the use of peremptory challenges in the jury selection process. When jurors are being selected, an Accused person and his Defence counsel are afforded 12 of these challenges, permitting them to deny a juror without explanation. Crown Counsel also has 12 challenges for their own use. The purpose of peremptory challenges is to provide balance in the adversarial trial process – however, the motivation behind their use differs depending on who you ask. The Bill doesn’t elaborate on how jury selection will be managed without peremptory challenges.

Equally alarming is the proposal to deny Preliminary Hearings for offences that don’t carry a maximum term of life imprisonment upon conviction. It is also being suggested that Justices be given power to limit issues examined and witnesses called during a Prelim. The Preliminary Hearing’s purpose is to determine whether the Crown has enough evidence to commit an Accused person to stand Trial, a valuable tool for the Defence in any given case (even if the offence doesn’t carry a potential life sentence). However, it isn’t beneficial only to the Accused. The evidence heard at a Preliminary Hearing is transcribed, to be recalled upon by parties at Trial. The issues explored at the Prelim can assist in narrowing what issues will be raised at trial, which in return reduces the likelihood of wasted court time on irrelevant issues (especially important in consideration of the impact of delay!). With the ability to seek a Direct Indictment from the Attorney General, the proposal to limit Prelims is wholly unnecessary.

Next up, and not surprisingly, we see this Bill seek to increase punitive measures for Accused persons facing allegations of abuse against an intimate partner. These consequences begin prior to any finding of guilt – in fact, they begin at the onset of proceedings, when an Accused person seeks release on bail. Bill C-75 suggests more “onerous interim release requirements” for individuals facing allegations relating to violence against an intimate partner. This essentially means that the terms of release will be increasingly stringent. On that note, the Bill also proposes to increase the maximum term of imprisonment for repeat intimate abuse offenders, and to have violence against a partner considered an aggravating factor at
sentencing.

Perhaps most disturbing is the revision relating to police powers and written evidence in the form of an Affidavit. Currently, a police officer is required to attend a trial in person to give oral evidence regarding their involvement in the case. They are subjected to cross-examination on that involvement, at which time they must truthfully answer questions posed by the Defence. This is a crucial opportunity for the Defence to raise reasonable doubt (when considering that police officers often offer the most compelling and credible evidence) which is the only reason for taking a matter to trial. Of course, the Defence will still be allowed to apply to cross-examine a police officer on their written evidence – but that application requires additional court time, and one struggles to believe that such an application would be denied in any event. So this proposed amendment will likely result in additional delay and squandered court time.

Many of these amendments strike at the heart of the adversarial process, and an Accused’s person’s right to make full answer and Defence to the charges against them. Numerous changes are procedural, justified by the assertion that too many cases are being thrown out over judicial delay. Systemic flaws, a lack of inquiry and input by judicial staff, and failure to accept and validate the concerns of concerned legal professionals in the private sector are a few of the factors that have resulted in impractical proposals pushed forward in Bill C-75.

Atlas of Crime: Vancouver Edition

  


The Vancouver Police Department announced that it will be using a new form of intelligence to stop crime before it happens.

No, it isn’t the formation of the Psychic Task Force. It isn’t any sort of “Big Brother” surveillance method (I think) – rather, the VPD has declared it will be the first law enforcement agency in Canada to utilize a “crime prediction model” that will tip officers off to property-crime offences before they happen.

Unsurprisingly, the public has been given very little information about what this new tool is able to do. So far, all we have been told is that it is a computerized program that was apparently very successful in its 6 month pilot project.

The program identifies both residential and commercial areas that display a high-likelihood for property crime. Surveillance areas are set up within a 100-500 meter perimeter, and officers are then dispatched to those areas for visible public presence.

The presence of police, of course, acts as a deterrent for thieves and vandals.

Interestingly enough, this comes as a further development to the 2015 crime mapping tool developed by the VPD. This interactive map is available to the public, for use by anyone interested in learning more about which areas in Vancouver are deemed higher risk. While many people attribute

While this may seem like a weak method of combatting serious and ongoing theft and vandalism, preventative measures are only deemed necessary once an issue has spiralled out of control.

Charges that police hope to see a reduction in as a result of this new preventative measure:

  • Break and Enter
  • Break and Enter to commit an Indictable offence
  • Theft under $5,000
  • Theft over $5,000
  • Mischief
  • Possession of stolen property

It isn’t unusual to see “petty” crimes, such as minor theft, escalate into more serious situations that can include violent offences as well – for example, a man breaks into a vehicle looking for valuables, but the owner of the vehicle happens to come down to his car as the crime is in progress. An altercation ensues, police attend, and the charges include break & enter, theft, AND assault.  By preventing the theft, the entire situation could have been avoided.

Ideally, this tool will aid police in preventing some crimes from happening, but realistically, crimes will still occur in the areas that aren’t padded by police presence.

We are conveniently located in Richmond, B.C. only a few steps away from Brighouse Station on the Canada Line, which brings you from various locations in Metro Vancouver in 20 minutes. We service all areas of the lower mainland (including but not limited to Surrey, New Westminster, Port Coquitlam, North Vancouver, and Abbotsford) the interior of B.C. (including but not limited to Cranbrook, Kelowna, Kamloops, and Salmon Arm), Northern B.C. (including but not limited to Prince George, Prince Rupert, and Quesnel) and in the Yukon Territory where we offer services in Whitehorse, Dawson City, and Old Crow. Contact our office today for your initial consultation.