Tweeting the Evidence in R v Sonne

The trial of Byron Sonne is an intriguing case that has baffled the media since he was arrested aboard a bus in the lead up to the Toronto G20 summit in June 2010. Following his arrest, Mr. Sonne was detained and questioned for 14 hours. He was denied the opportunity to speak with a lawyer until nearly 12 hours after his arrest, and then charged with six offences, including possession of a weapon and an explosive substance, mischief and intimidating the police. While the verdict in Mr. Sonne’s trial has yet to be decided (according to his supporters’ website, a decision will be rendered on May 15), a Superior Court judge made an important ruling in March regarding the admissibility of two statements Mr. Sonne had made to Toronto Police Services detectives shortly after his arrest. In R v Sonne, 2012 ONSC 1741 [Sonne], the defence argued that interviews conducted by the detectives on June 23rd, the day following Mr. Sonne’s arrest, and again on June 26th, violated his section 10(b) Charter rights, and as a result could not be considered voluntary.

In regards to the June 23rd statement, Justice Spies concluded that Mr. Sonne had sufficient knowledge of his legal rights and thus his statement was made voluntarily. However, in regards to the June 26th statement, she found that only part of it could be considered voluntary because the detectives had used questionable strategies that compromised Mr. Sonne’s ability to remain silent. What is most interesting about this decision is the evidence put forward by the Crown to demonstrate that Mr. Sonne was well aware of his legal rights prior to the June 23rd statements. To prove this point, the Crown presented copies of documents that were obtained through links on Mr. Sonne’s Twitter account. On June 21, he Tweeted  “read EVERY PDF on this page and know your rights” and posted a link to movementdefence.org, a website with materials created specifically for the G20, including a “Legal Guide for Activists” and a brochure entitled “What to do if the police come knockin’.”

After reviewing these documents, Justice Spies found that the legal guide “is intended to provide the person who reads it with an overview of their rights when dealing with the police. It also deals with what a person should do if arrested by police. This includes asserting the right to silence.” While Mr. Sonne did not testify in regards to his understanding of these documents, Justice Spies concluded that “it is reasonable to infer that Mr. Sonne had read these documents and was generally familiar with their contents.” She further concluded that, combined with the fact that Mr. Sonne had actively challenged the police during his interrogation, it was reasonably to conclude that he had sufficient knowledge of his legal rights during the June 23rd interrogation.

What does this Decision Mean for the use of Social Media as Evidence?

The decision in this case demonstrates the unexpected and unintended impact of social media on the criminal trial process and the rights of the accused. The use of social media as evidence is an evolving area of the law and one that will likely struggle to keep pace with the rate at which social media evolves. Until the legal system has developed a firm understanding of how social media should be introduced as evidence, activists, and all Internet users for that matter, may want to take heed of the cautionary tale that this decision holds.

While Mr. Sonne’s Tweet was intended to inform other activists of their legal rights, it was ironically used by the Crown to prove that his own rights had not been infringed. In this case the Tweet was not the sole piece of evidence used against Mr. Sonne, as Justice Spies also considered how Mr. Sonne’s interaction with the detectives demonstrated his understanding of legal rights. This consideration shows that while the Tweet was integral to the Crown’s case, it was not sufficient to prove its case. However, had the Tweet been used as the sole piece of evidence against Mr. Sonne, the result may have seemed less fair. For example, it is not difficult to imagine a situation in which an individual with the same level of legal knowledge as Mr. Sonne makes a statement to the police without being informed of his or her legal rights, but that statement is later found to be involuntary because there was no evidence to demonstrate that the individual actually possessed the legal knowledge. In this situation, the distinguishing evidence between a statement that is rendered voluntarily (such as in Mr. Sonne’s case) and a statement rendered involuntarily would be reduced to a single Tweet.

This hypothetical illustrates the difficulties of drawing the line when it comes to statements made by an accused through social media, especially when such statements provide the foundation for the Crown’s case. In such cases, extra caution must be taken to ensure the authenticity of the statements and the knowledge that is actually possessed by an accused. In this case, Mr. Sonne’s Tweet did not go so far as to incriminate him for the offences that he has been charged with, but it is easy to imagine a myriad of situations where a single Tweet or Facebook post could produce that result. The recent case of R v Smickle, 2012 ONSC 602 [Smickle], provides a compelling example of how an individual’s social media activity can be used to construct an entire case against an accused. Mr. Smickle was infamously caught red-handed taking pictures with a loaded firearm on his webcam when the police burst into his apartment to carry out a search warrant against his cousin. While Mr. Smickle was innocently taking the pictures for his Facebook profile, he was charged with and convicted of possession of a loaded firearm. However, Justice Molloy struck down the mandatory three-year sentence for possession of a loaded firearm after she found it to be “grossly disproportionate” for those circumstances.

The Smickle case reads somewhat like a Kafka novel, but in reality, this is exactly the type of case that we could expect to see more of as social media becomes a frequent source of evidence in criminal cases. Mr. Smickle was charged with the offence before he even had the opportunity to post the photos; however, even if the police had not coincidentally burst into his apartment at that moment, a similar charge could have been made if the evidence was posted to Mr. Smickle’s Facebook page. The absurdity of this situation, and the result in the Sonne decision are particularly relevant in light of the ongoing debate surrounding online security and the introduction of Bill C-30 by the Conservative government. In its current form, Bill C-30 would allow police officers to obtain information about Internet users without a search warrant and require Internet Service Providers to store information about their customers. The proposed measures have been presented as necessary tools to combat Internet evils such as child predators and to facilitate criminal investigations. However, the increased policing of the Internet also raises serious questions about Internet privacy and the implications of using Internet records as evidence in criminal trials.

Of the many concerns that the proposed bill raises, the question of authenticity is perhaps the most important and the most relevant to Mr. Sonne’s case. Very little effort is required for any individual to create a fake Facebook or Twitter account. This point was poignantly illustrated through the creation of Vikileaks, the Twitter account created in protest to Bill C-30 to disseminate personal information about Public Safety Minister Vic Toews. That account was obviously created to make a statement about privacy rights and has since been traced to a former Liberal staff member. However, Vikileaks also demonstrates the ease with which an online identity can be fabricated and thus highlights the additional caution that is required when using social media as evidence.

The debate on the merits of Bill C-30 is on hold until its second reading commences in the House of Commons. In the meantime, there are plenty of reasons for Internet activists, lawyers and lawmakers to ponder whether its purported benefits truly outweigh the potentially damaging effects on privacy and justice. When the decision in Mr. Sonne’s case is finally released, his Tweet will only have played a minor role in comparison to the other evidence presented at trial. Whether Mr. Sonne is found guilty or not, there is still reason to pause and reflect on what this decision might mean for activists. If everything you post on the Internet can and will be used against you, then activists might think twice before posting information that may be useful for others but potentially damaging to themselves.