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

250 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
closed. Pictures of the owner posing with gang symbols and Facebook
posts referring to a local gang were admitted as evidence that the house
was posing a threat to community safety. 122 A New York Court ordered a
car belonging to the father of a convicted drug dealer seized after extensive
photos of the son driving the car were admitted from the son’s Facebook
account and the court concluded that the car belonged to the father in
title only. 123
Savvy investigators may choose to go onto a social network such as
Facebook or Twitter and search for posts with incriminating words. Some
websites like Twitter allow users to extensively search all posts, many of
which are public. An investigator may also use social networks to track
down potential associates of a known individual by viewing their ‘friends
list’. Individuals on the lam have been caught after posting photographs
taken from the locations where they were staying. They can be
apprehended after checking their Facebook account after a production
order had been issued to release the IP address where the account was last
logged on. Those with privacy settings enabled may be safe from amateur
sleuths, but they will not be safe from their own ‘friends’ or from a valid
and enforceable search order.
2. Alibis and alternative explanations
Defendants have used photographs to create an alibi or raise
reasonable doubt by introducing social networking evidence to their
advantage. In R v Lorette, 124 a defendant accused of inappropriately
touching a random woman in a bank was acquitted of sexual assault. He
successfully argued that he had mistaken the woman for a former
girlfriend after introducing Facebook photographs of a woman who
resembled the complainant. In R v E(SR) 125 a man convicted of robbery
mitigated his sentence slightly by using pictures from his Facebook
account to show that some of the allegedly stolen jewelry was in his
possession prior to the theft.
122
Nova Scotia (Director of Public Safety) v Dixon, 2011 NSSC 5, 297 NSR (2d) 337.
123
DiFiore v Mozeb, 918 NYS 2d 836, 2011 WL 893009 (NY Sup 2011).
124
R v Lorette, 2010 ONCJ 259 (available on WL Can).
125
R v E (SR), 2010 SKPC 145 (available on WL Can).