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Law Times • December 8, 2014 Page 9 www.lawtimesnews.com How can defence make social media their friend? Online evidence not just a benefit to prosecutors, CLA conference hears By Glenn kauTh Law Times hile Canadians typi- cally think of electronic evidence as something that normally helps the interests of the state in law enforcement matters, it can also help people defending themselves in such cases and the lawyers representing them. That was a key message during the Criminal Lawyers' Association confer- ence in Toronto in late November. The conference focused on the role of social media in criminal matters and brought home the point that it can help the de- fence as well as the Crown. "We have to accept the fact that most clients, witnesses, and even lawyers do not pre-emptively filter social media with an eye to future litigation," defence lawyer Sean Robichaud told the conference during his session introducing social media. Robichaud, an active social media user, predicted "profound changes in the way we practise criminal law" and not- ed police are already very active in that sphere. "They're conscious of it and we as defence lawyers need to be conscious of it because it's going to be more and more prevalent in our courts," he said. While social media evidence often helps Crown prosecutors, it can also con- tain exculpatory information as well, Ro- bichaud noted. That's why one of the first things he asks clients is whether they, the complainants or other witnesses are on social media web sites such as Twitter. It's important to get that information imme- diately, he said, adding lawyers can then reach out to witnesses to find out what they saw and also access location data. He pointed out, for example, that one of the first tweets about the 2012 shooting at To- ronto's Eaton Centre was from someone tweeting as the events unfolded. "Importantly to us, it's admissible evi- dence," said Robichaud. But as other speakers at the conference pointed out, social media is a complex area when it comes to the potential advantages for those accused of crimes. Criminal defence lawyer Frank Addario, a former president of the CLA, noted digital tech- nologies have been a windfall for law en- forcement. "The witnesses and individuals that we are dealing with are leaving elec- tronic footprints. . . . The effect is to cre- ate a bonanza for the enterprising police officer," he told the conference during a panel with two former CLA presidents on upcoming constitutional challenges. In a paper accompanying the confer- ence session, Addario noted the courts have released a slew of high-profile recent rulings on some of the privacy interests in that in- formation. Among them was the Supreme Court case of R. v. Morelli, which Addario said was the first case in which the top court recognized powerful privacy interests in digital data. After that came R. v. Cole, a case that found a reasonable expectation of privacy in a computer owned by an em- ployer. This year, of course, saw the high- profile case of R. v. Spencer in which the top court found a privacy interest in an Internet protocol address. The cases, of course, have big implications for defence lawyers when it comes to potential breaches of s. 8 of the Charter of Rights and Freedoms that may affect their clients' cases. "A central theme that emerges from the recent cases is that courts are more concerned with the man- ner in which digital devices are used than in technological or legal formalism," Ad- dario wrote in his paper for the conference. "Rather than focusing on technicalities such as who owns a computer or the terms of service contracts, courts have gener- ally focused on the bigger picture: whether there is a societal consensus that something is sufficiently private so as to fall within the class of information at which s. 8 is target- ed," he added. "Defence counsel should tai- lor their arguments accordingly." Besides questions about whether po- lice can search a device such as a smart- phone, there are also issues around the extent of any authorized searches, ac- cording to Addario. "It's a question of asking them not to go through all of the drawers in your house when they're look- ing for a stolen snowmobile," he told the CLA conference on Nov. 28. So there's room for defence lawyers to proactively make suggestions about search protocols, he said. "Data range and keyword search restrictions are appropri- ate in many cases," he said. "The search should exclude classes of files that are highly unlikely to contain relevant evidence," he added. Addario also echoed Robichaud in noting the ways in which digital infor- mation can help defence counsel. He cited information that can help establish an alibi through, for example, locational data from cellphones; information that can help implicate third-party suspects; and police body-worn cameras. "The message is if they're watching us all the time, then we should be the beneficiaries of it as well," Addario told the conference. But what about the legal mechanics of actually accessing social media information and being able to tender it in court? That was the topic of a separate session involv- ing lawyer Susan Chapman of Ursel Phil- lips Fellows Hopkinson LLP and Allison Dellandrea of the Ministry of the Attorney General's provincial strategy on Internet child exploitation. Ontario Court Justice Fergus O'Donnell moderated the panel. There are several options for accessing social media evidence, such as Facebook posts, that's potentially relevant to a case, the lawyers pointed out, although both ac- knowledged there's not a lot of case law yet in the criminal sphere. One option, Chap- man noted, is to issue a subpoena either to the witness involved or the social media site. But Dellandrea noted it's unclear how the issue would play out as she has never seen someone using the subpoena op- tion. And serving production orders on social media companies, she added, can be difficult. Dellandrea suggested the most likely option for defence lawyers, then, would be the informal route by, for example, view- ing people's public profiles. And Chapman noted lawyers can sometimes go further by befriending the person's friend on Face- book in order to get access to online infor- mation. But are there ethical issues in doing While digital footprints are 'a bonanza for the enterprising police officer,' they can also help the defence, says Frank Addario. Focus on criminal Law How the legal community in Ontario gets its NEWS To order your copy visit www.lawtimesnews.com or call 416.609.3800 or 1.800.387.5164 SUBSCRIBE TO LAW TIMES TODAY! 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