Law Times

Law Times • December 14, 2015 Page 13 www.lawtimesnews.com Privacy rights under fire in a digital world Electronic devices provide lawyers with an information gold mine BY SHANNON KARI For Law Times he Supreme Court of Canada has issued a number of rulings in recent years related to technology and the privacy rights of accused persons when police, as part of a criminal investigation, access a computer or smartphone. Where there is still debate though is over the privacy rights in the electronic communications of alleged victims of crime aer the police have obtained them. e ongoing murder trial of To- ronto police Con- stable James Forcillo in the shooting death of 18-year-old Sammy Yatim is an example where the issue arose. A smartphone was seized on the Toronto streetcar where Yatim was fatally shot in July 2013 during a con- frontation with police. A motion where the Crown and defence made arguments related to the contents of the phone was out- side of the presence of the jury and subject to a publication ban until it begins its deliberations, likely in early January. What has been shown to the jury during the trial is a "selfie" smartphone photo of Yatim with- out his shirt, which the officer's lawyer Peter Brauti suggested to the Crown's use of force expert was evidence that the young man was very fit and could have quickly le the streetcar and attacked police. e trial of the officer is one of the more high-profile cases deal- ing with this legal issue, but it is increasingly common for the de- fence to seek all forms of electronic communications, says Dawne Way, a Toronto lawyer who fre- quently represents complainants in criminal cases. "is is going to burden the courts with a vast amount of ma- terial," she says. Smartphones and tablets are "repositories of vast amounts of personal informa- tion. is could have a very chill- ing effect on complainants." e question for courts to de- cide is whether electronic com- munications, such as texts, e-mails, and web-browsing history, should be considered under the Stinch- combe rule of disclosure where it must be disclosed to the defence unless it is clearly irrelevant. Or, are these communications by alleged victims third-party records that fall under the framework set up by the Supreme Court in R v. O'Connor and require the defence to show likely relevance? In 1999, the Supreme Court in R v. Mills upheld Criminal Code amendments to restrict access to therapeutic records of sexual as- sault complainants also addressed the broader issue of privacy against the right of full answer and defence. "Privacy is not an all-or- nothing right. It does not follow from the fact that the Crown has possession of the records that any reasonable expectation of privacy disappears," said the majority deci- sion. is statement was repeated by the Supreme Court last year in its decision in R v. Quesnelle, which concluded that police oc- currence reports about a com- plainant that are not related to the case before the court do not fall under Stinchcombe. In general, personal electronic communications should fall un- der the same framework as seek- ing third-party records, suggests Way. What is not uncommon though, she says, is for police to obtain a smartphone and down- load a vast amount of information from the device. "As soon as the defence finds out, they declare it is all Stinchcombe and the fruits of the investigation," she says. Michael Lacy, who has argued a number of appellate-level cases re- lated to police search issues involv- ing defendants, says a distinction should be drawn between sexual assault cases and other offences. e provisions in the Criminal Code make it clear that "sexual assault is a category of complain- ant with special protection. e Stinchombe regime applies to any other context," says Lacy. If electronic communications from a victim in a non-sexual as- sault case have been obtained le- gally by police and are now in the possession of the Crown, there should not be the onus on the defence to show likely relevance, he suggests. At the same time, there are enough protections in the court process to ensure that the defence is not seeking to simply attack the credibility of a witness or com- plainant with information that is not relevant to what is before the court, says Lacy. "e Crown has an obligation in terms of what is disclosed. ere are defence undertakings on the dissemination of information. e court has a role to play in terms of admissibility. When it all works to- gether, I don't think there is a seri- ous risk to privacy rights." Where both lawyers agree is what needs to be done at the front end, when police seek the smart- phone or similar devices of an in- dividual who is an alleged victim of a criminal offence. "A well-craed consent. at is what is needed," says Way. "Police need more training. ey don't need to seize the phone and down- load it all. You can take screen shots of specific text messages." LT Focus Defence lawyer tactics could have a 'chilling effect on complainants,' says Dawne Way. T THE RIGHT CONNECTIONS MADE EASY Alberta Legal Telephone Directory is all about your legal community connecting you to the lawyers and law offices you need in Alberta, Northwest Territories, Nunavut and Yukon. 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New Edition Spiralbound • August 2015 $45* • L88804-762 Multiple copy discounts available *Plus applicable taxes and shipping & handling (Prices subject to change without notice) 2015-16 Alberta Legal Telephone Directory – the right connections made easy. Order your copy today. Visit www.carswell.com or call 1-800-387-5164 for a 30-day, no risk evaluation Untitled-1 1 2015-11-24 2:55 PM Juror ruling prompts call to look at Criminal Code BY TALI FOLKINS Law Times ith the Ontario Court of Appeal having ruled on jurors' use of extrinsic informa- tion in a recent case, the president of the Criminal Lawyers' Association says it may be necessary to amend the Criminal Code in order to get a better handle on the issue. "You can't say if jurors are or are not doing this at any level that is ap- preciable because you only find out in the rare case where a juror hap- pens to mention something," says Anthony Moustacalis. "Maybe jurors really do obey the judge's instructions. In my experi- ence, it seems that they generally do. But do I really know? The an- swer is no. Maybe they're Googling stuff all the time." The only way to know for sure and assess the necessity of any changes to the jury system, accord- ing to Moustacalis, is to amend the Criminal Code to allow research- ers to interview jury members anonymously about their experi- ences. "The fact of the matter is that people are people and they might not always remember the limits of what they're allowed to do or they might stray," he says. The comments follow the ap- peal court's ruling in R. v. Farinacci, a case that demonstrated the ease with which jurors can now find information about the defendant outside of the evidence presented during the trial. In their ruling on June 3, a panel of three judges re- fused to overturn the convictions of two brothers for possession of the proceeds of crime and conspiracy to traffic in cocaine. The brothers, Lucas Farinacci and Leonard Fari- nacci Jr., had argued their right to a fair trial had been compromised because jurors in the case, with the help of Google and other sources, had come across information about them that hadn't come up in court. The appeal came about as a result of a chance event at a coffee shop. Prior to sentencing but after the brothers' conviction, someone at the coffee shop overheard one of the ju- rors, in a conversation with a friend, mention that another me mber of Zero-tolerance conundrum Lawyers say pendulum has swung too far against accused in domestic violence cases BY TALI FOLKINS Law Times he justice system has taken the idea of zero toler- ance in domestic assault to such an extreme that it's unfair to defendants and no longer works in the best interests of Ontario families, says a 40- year veteran of criminal law. It's an opinion, however, vociferously opposed by at least one lawyer who helps victims of domestic violence. Leo Adler, of Adler Bytensky Prutschi Shikhman, says the issue of domestic assault has become "political football" over the last 25 to 30 years with largely undesirable results. While Adler emphasizes he doesn't want to diminish the tragedy of family violence, he says the situation has now reached a point where police called to family violence situa- tions are unduly afraid to release the defendant even in cases that don't appear serious. "Nobody wants to be the person who says, 'O.K., I'm going to release you,' because you might be the one in a million or whatever the statistic is who might end up killing your spouse," says Adler. "In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred. You simply have the word of the complainant. And the person gets arrested and I can tell you that again in the majority of cases, the police don't even bother to try to take a statement from the accused, usually the male. . . . They don't ask because it doesn't make a difference because they're going to arrest you no matter what." Bail hearings in domestic violence cases, he says, are "a l- ways run on the presumption of guilt" and, if the court does grant bail, it's generally under strict conditions with the de- fendant required to live with a surety. The result, according to Adler, is often a divided family with the added financial strain OBA LAUDED Association honoured for mental-health efforts P4 CAMPAIGN SPENDING Bencher candidate calls for expense limits P6 FOCUS ON Legal Innovation P8 'In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred,' says Leo Adler. Photo: Robin Kuniski See Silence, page 2 See Bail, page 2 There's no way to know if jurors are doing their own research on cases, says Anthony Moustacalis. PM #40762529 & $#&!&jmmm$cYa[bbWh$Yec t7PM/P +VOF Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMES T W Juror ruling prompts call to look at Criminal Code BY TALI FOLKINS Law Times ith the Ontario Court of Appeal having ruled on jurors' use of extrinsic informa- tion in a recent case, the president of the Criminal Lawyers' Association says it may be necessary to amend the Criminal Code in order to get a better handle on the issue. "You can't say if jurors are or are not doing this at any level that is ap- preciable because you only find out in the rare case where a juror hap- pens to mention something," says Anthony Moustacalis. "Maybe jurors really do obey the judge's instructions. In my experi- ence, it seems that they generally do. But do I really know? The an- swer is no. Maybe they're Googling stuff all the time." The only way to know for sure and assess the necessity of any changes to the jury system, accord- ing to Moustacalis, is to amend the Criminal Code to allow research- ers to interview jury members anonymously about their experi- ences. "The fact of the matter is that people are people and they might not always remember the limits of what they're allowed to do or they might stray," he says. The comments follow the ap- peal court's ruling in R. v. Farinacci, a case that demonstrated the ease with which jurors can now find information about the defendant outside of the evidence presented during the trial. In their ruling on June 3, a panel of three judges re- fused to overturn the convictions of two brothers for possession of the proceeds of crime and conspiracy to traffic in cocaine. The brothers, Lucas Farinacci and Leonard Fari- nacci Jr., had argued their right to a fair trial had been compromised because jurors in the case, with the help of Google and other sources, had come across information about them that hadn't come up in court. The appeal came about as a result of a chance event at a coffee shop. Prior to sentencing but after the brothers' conviction, someone at the coffee shop overheard one of the ju- rors, in a conversation with a friend, mention that another me mber of Zero-tolerance conundrum Lawyers say pendulum has swung too far against accused in domestic violence cases BY TALI FOLKINS Law Times he justice system has taken the idea of zero toler- ance in domestic assault to such an extreme that it's unfair to defendants and no longer works in the best interests of Ontario families, says a 40- year veteran of criminal law. It's an opinion, however, vociferously opposed by at least one lawyer who helps victims of domestic violence. Leo Adler, of Adler Bytensky Prutschi Shikhman, says the issue of domestic assault has become "political football" over the last 25 to 30 years with largely undesirable results. While Adler emphasizes he doesn't want to diminish the tragedy of family violence, he says the situation has now reached a point where police called to family violence situa- tions are unduly afraid to release the defendant even in cases that don't appear serious. "Nobody wants to be the person who says, 'O.K., I'm going to release you,' because you might be the one in a million or whatever the statistic is who might end up killing your spouse," says Adler. "In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred. You simply have the word of the complainant. And the person gets arrested and I can tell you that again in the majority of cases, the police don't even bother to try to take a statement from the accused, usually the male. . . . They don't ask because it doesn't make a difference because they're going to arrest you no matter what." Bail hearings in domestic violence cases, he says, are "a l- ways run on the presumption of guilt" and, if the court does grant bail, it's generally under strict conditions with the de- fendant required to live with a surety. The result, according to Adler, is often a divided family with the added financial strain OBA LAUDED Association honoured for mental-health efforts P4 CAMPAIGN SPENDING Bencher candidate calls for expense limits P6 FOCUS ON Legal Innovation P8 'In a lot of these cases, there's no sign of violence, there's no sign of anything having occurred,' says Leo Adler. Photo: Robin Kuniski See Silence, page 2 See Bail, page 2 There's no way to know if jurors are doing their own research on cases, says Anthony Moustacalis. PM #40762529 & $#&!&jmmm$cYa[bbWh$Yec t7PM/P +VOF Follow LAW TIMES on www.twitter.com/lawtimes L AW TIMES T W How the legal community in Ontario gets its news Understand cutting-edge legal affairs, discover [OLSH[LZ[UL^ZHUKILULÄ[MYVTL_WLY[JVTTLU[HY` for just 55 cents a day! SUBSCRIBE TODAY AND RECEIVE: • 40 issuesH`LHYJV]LYPUN6U[HYPV»ZSLNHSSHUKZJHWL • FREEKPNP[HSLKP[PVUHUK\USPTP[LKVUSPULHJJLZZ[VWHZ[PZZ\LZ • FREE Canadian Legal NewswireH^LLRS`LUL^ZSL[[LYMYVT[OL editors of Law Times and Canadian Lawyer Subscribe to Law Times today for only $199*! ;VWSHJLHUVYKLYWSLHZLJHSS VY 6YKLYVUSPULH[!^^^JHYZ^LSSJVTWYVK\J[KL[HPSSH^[PTLZWYPU[KPNP[HS *Plus applicable taxes @lawtimes *VU[HJ[\ZMVYTVYLPUMVYTH[PVU! *HUSH^`LYSH^[PTLZ'[OVTZVUYL\[LYZJVTc c (JJLZZHMYLLWYL]PL^H[!IP[S`JVTCanLawyer-FreePreview Untitled-2 1 2015-12-08 4:14 PM

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