MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

Social Incrimination 247
exaggerated or untrue. Anonymous individuals may post things that they
would not say in person, or they may be attempting to brag to their online
friends. Furthermore, a post, image, video or message may be unclear,
reveal only part of a story, or be taken out of context.
Nevertheless, some Canadian courts have assumed that incriminating
statements made online are truthful. In R v Tscherkassow, a man’s
conviction of assault at a gay bar was secured through an eyewitness
account and with the accused’s own self-incriminating statement on
Facebook. 104 A prosecution witness testified that the accused bragged
about “supermanning a fag or a fairy” 105 in one of his status updates. The
judge rejected the accused’s claim that he lied, determining that
“[c]ommon sense and reasonableness suggest that one would not post such
a statement for those reasons where the statement is untrue.” 106
Similarly, in a tax dispute case, a court rejected a salon worker’s
contention that his employment history contained inaccurate information:
Mr. Hall described himself on Facebook as a self-employed hair colour specialist.
Everything else about him on his Facebook info page he says is true. This is his
own description of his work status made voluntarily, describing his work during
the period he worked at the appellant's salon. It was made in a setting where
nothing seemed to turn on it. Though he now says it alone was untrue and
dishonest, he cannot explain why this would be the one thing he would choose
to lie about on Facebook regarding his personal information. 107
Other courts have approached incriminating social networking
statements with a more skeptical approach, realizing that there is a need to
evaluate the context of a post. This has surfaced in cases where individuals
are accused of making threats and contend they were blowing off anger
and frustration. In R v Lee, 108 the defendant was acquitted of making death
threats. The judge was unsure of the context of certain statements and
remarked that the format of Facebook “diminishes the seriousness that
can be attached to the words.” 109 In R v Sather, the judge recognized an
expert witness who testified:
104
R v Tscherkassow, 2010 ABPC 324 (available on WL Can).
105
Ibid at para 67.
106
Ibid at para 136.
107
Shonn's Makeovers & Spa v Minister of National Revenue, 2010 TCC 542 at para 27
(available on WL Can).
108
R v Lee, 2010 ONCJ 291 (available on WL Can) [Lee].
109
Ibid at para 9.