What You Say Online Can Come Back to Haunt You
Social media has transformed the way people communicate with each other. Young people in particular rely on text messages or platforms such as Snapchat to communicate because it is so easy.
Most adults carry cellphones at all times and send out texts detailing what they are doing or thinking. But those messages can take on great significance if allegations of sexual assault or another serious crime arise.
When that happens, these messages can be used as evidence by a Crown prosecutor to verify what the parties have said to each other before and after the alleged incident.
Let’s say that a man and woman go on a date. The next day she goes to police and says she was forced into sex. He denies it, claiming they had no sexual contact. This is a classic he said/she said scenario that courts deal with all the time.
But if he sent her a text after the date saying how good the sex is, then he has provided evidence to the Crown that it did not have before. His words can be used against him, as the prosecutor tries to show the sex was non-consensual.
Keep in mind that when it comes to Crown evidence, they can introduce any third-party record without having to make an application to the court to use it. Third-party records can include:
- notes taken by a counsellor, therapist, psychologist or doctor;
- hospital records;
- records from a child welfare or social service agency;
- records from an employer or school, and
- the victim’s journals; and
- in certain cases, emails and other online correspondence.
On the other hand, if the accused in the above scenario has texts or online messages from the complainant that support his case, defence lawyers must make an application to the court to introduce those records as evidence. Maybe the messages show the complainant enjoys BDSM or engaging in rough sex.
A prime example of that scenario arose during the 2016 trial of a prominent national radio personality in Toronto who was facing multiple sexual assault allegations involving six women. After a short trial, he was acquitted, with the judge ruling there was insufficient evidence to establish proof beyond a reasonable doubt.
One of the reasons for the doubt was an email from one of the complainants, sent within 24 hours after he allegedly choked her. According to court documents, her message read: “Getting to know you is literally changing my mind, in a good way. You challenge me and point to stuff that has not been pulled out in a very long time. I can tell you about that sometime and everything about our friendship so far will make sense. You kicked my ass last night and that makes me want to f--- your brains out, tonight.”
The judgment adds, “There is not a trace of animosity, regret or offence taken, in that message.”
Social media and other crimes
I defended a case where it was alleged that my client and a few friends went to someone's house. The intruders were armed and warned the residents against dealing drugs in their territory. A neighbour’s security camera captured footage of three individuals running from the house and being picked up by a car. The licence plate of the car was not visible nor were the faces of the men coming from the home.
But inside the vehicle was a woman. She later claimed that her participation in the action was involuntary and that she had been threatened and coerced to take part. Days later, she made plans to go to the police and give evidence about the crime.
My client responded by texting her, warning her not to talk to police, hinting there would be consequences if she did. When she showed his texts to police, they had evidence linking my client to the crime that they did not have before. That was the nail in the coffin and my client was found guilty of the charges.
Snapchat messages can live on
I always tell clients not to post anything online about their case, witnesses or the complainant. They need to understand that almost anything they write can be retrieved, including on platforms such as Snapchat where messages are deleted after 24 hours.
In some cases, a person may use a second phone to take photos of your Snapchat message. Those can be saved and introduced as evidence.
I represented a client accused of sexual assault. The complainant alleged he extorted her into having sex since he knew a secret about her that she did not want others to find out about.
A few years after they broke up, she provided the Crown with images of some of his Snapchat messages that seemed to support the allegation. But I successfully argued in court that is nearly impossible to determine if there was any information missing from that Snapchat conversation. There were no timestamps in the messages and it was clear that some comments were not being shown at the bottom of some of the images. I was able to convince the court that her images did not accurately reflect the entire conversation.
Contact me for advice
Social media messages play a big role in the majority of the cases I am involved in. People tend to document their thoughts and actions online, and that can come back to haunt them. If you have been charged with a crime and there are electronic messages that either support or harm your case, contact me for advice. I offer a free consultation in French or English and can advise you on your options.
My next post will examine the importance of saving social media messages and how they can be effectively used.