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Page 4 OctOber 22, 2018 • Law times www.lawtimesnews.com 'The damage to the victim is still done' FaceTime ruling against the intention of the law: lawyer BY SHANNON KARI For Law Times A n Ontario Superior Court judge has ruled that video transmitted by the use of FaceTime does not fit the definition of a "recording" in a relatively new Criminal Code section aimed at combating "cyberbullying." The decision issued by Jus- tice Kelly Byrne Sept. 24 during a sexual assault trial in Toronto is believed to be the first time a court has been asked to rule if intimate images transmit- ted without consent — but not stored — are captured by s. 162.1 of the Code, which came into ef- fect in 2015. The judge, in an oral ruling, found that since FaceTime video is live streaming and not auto- matically preserved, it is not a "visual recording" as required under the section. Lawyers say if the ruling is upheld on appeal, it shows a f law in the drafting of the law aimed at punishing cyberbullying. Gillian Hnatiw, a lawyer who frequently acts for sexual assault complainants and individuals who have had intimate images disseminated without consent, says the decision is puzzling. "It is totally at odds with the intention of Parliament, which was to protect the sexual integri- ty of those who are impacted by this crime," says Hnatiw, a part- ner at Adair Goldblatt Bieber LLP in Toronto. Byrne ruled in favour of a defence application on behalf of Patrick Walsh for a directed ver- dict of an acquittal on a charge of transmitting intimate images without consent. Walsh was convicted of sex- ual assault by a jury, stemming from a 2016 incident where he met a young woman at a bar in Toronto's downtown entertain- ment district. The jury heard that he re- turned to his mother's residence with the then-19-year-old wom- an and forced her to perform oral sex and engage in inter- course. The complainant testified that, afterwards, while naked and throwing up in the bath- room, she saw the accused point his phone at her as part of a Face- Time video conversation with his friends. She also heard Walsh and his friends laughing during this conversation. Phone records entered as evi- dence show that Walsh engaged in two FaceTime conversations at around 1 a.m. that morning. Defence lawyer Zachary Ker- bel argued that even if his client did point his phone at the com- plainant while she was naked, it was not an offence under the section in which Walsh was charged. "The evidence, taken at its highest, establishes that the ap- plicant 'live video chatted' the complainant while naked in his bedroom," stated Kerbel in writ- ten submissions on the directed verdict application. "There is no evidence that the applicant ever recorded the com- plainant and that he either pub- lished, distributed, transmitted, sold, made available or adver- tised that recording. Therefore, no properly instructed jury, act- ing reasonably, could convict the applicant because there is no evidence of an intimate im- age as that term is defined in s. 162.1 of the Code," wrote Kerbel, a lawyer at Ursel Phillips Fellows Hopkinson LLP in Toronto. Kerbel declined comment for this story, as his client has yet to be sentenced. Hnatiw disagrees that the provisions apply only to a very narrow definition of what is a visual recording. "I don't know if this decision is even technologi- cally correct. Your phone must capture the images. The damage to the victim is still done. The violation is still there, whether or not the images are stored," says Hnatiw. The amendments were intro- duced by the former Conserva- tive government as part of the Protecting Canadians from On- line Crime Act. Crown Attorney Brigid Mc- Callum, in her written argu- ments in the directed verdict application, highlighted the pur- pose of the act. It was described as trying to address a "contempt- ible form of cyber-bullying," which is the dissemination of in- timate images without consent. "The use of FaceTime appli- cation to send a visual recording of the victim naked and vomit- ing is the heart of the harm that this offence was intended to ad- dress. A definition that excludes this act offends a purposive reading of the section," wrote McCallum. "The Applicant's definition leads to even more illogical re- sults when applied in the 21 st century. For example, an ac- cused that uses a live web cam to film a victim in an intimate sexual act to any number of members of the public would be excluded," McCallum wrote. The Crown also noted that there are other applications cur- rently available, such as Snap- chat, that permit the sending of images to third parties, although they are available for only a short period of time before they be- come inaccessible. This notori- ous application is often used to send intimate images precisely because the recordings are not permanent or reproducible," she wrote. Daniel Rechtshaffen, a To- ronto defence lawyer, says he can understand the perspectives of both the Crown and the defence on this issue. "The underlying objective of the amendments was to combat cyberbullying, following some high-profile cases. But you also have to look at the actual word- ing of the section," he says. "I think given how it is word- ed, it was definitely open to a judge to find it was not a record- ing," says Rechtshaffen, who adds that FaceTime has a record- ing function, but it requires the user to take certain steps to do so. Given that the amendments only came into force a little more than three years ago, he suggests that Parliament would have been clear if it wanted to include video conversations from applications such as FaceTime in the offence. "Parliament can still step in and the section can be amend- ed," to clear up any confusion, he says. Further amendments may be necessary if the decision of Byrne is not reversed on appeal, says Hnatiw. "If this decision is correct in law, then the onus is on Parliament to act," she says. The Crown has not yet an- nounced if it will appeal the rul- ing. LT NEWS © 2018 Thomson Reuters Canada Limited 00253ET-92688-NK Available risk-free for 30 days Online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 Expert guidance on will challenges in Ontario Order # L7798-8636- 65203 $207 Hardcover approx. 496 pages July 2018 978-0-7798-8636-4 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. At what stages can a will be attacked in Ontario? What is involved with bringing or defending a challenge to a will's validity? 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New Edition Challenging the Validity of Wills, Second Edition Ian M. Hull, B.A. (Hons), LL.B., and Suzana Popovic-Montag, B.A. (Hons), LL.B. Gillian Hnatiw says a recent Ontario Superior Court decision is 'totally at odds with the intention of Parliament' when it comes to legislation pertaining to online crime. Parliament can still step in and the section can be amended. Daniel Rechtshaffen Legal News at Your Fingertips Sign up for the Canadian Legal Newswire today for free and enjoy great content from the publishers of Canadian Lawyer, Law Times, Canadian Lawyer InHouse and Lexpert. Visit www.canadianlawyermag.com/newswire-subscribe

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