How To Navigate Through The Digital Era: A Review of Digital Evidence: A Practitioner’s Handbook

Advocacy is not simply a creature of the courtroom but is, in essence, a state of mind informed by legal principles and enhanced by strategic and tactical concerns. A skilful advocate will be able to approach each case with a tactful mindfulness, which will start from the moment the client calls to the moments after the case is decided. There are many such legendary advocates such as Clarence Darrow,G. Arthur Martin, and Eddie Greenspan. Natural talent does make a difference but truly what separates the great from the good is the desire to be continually curious about the craft. This continual renewal means being on the cutting-edge of the law. Today, such a skilful advocate melds old school advocacy with knowledge and appreciation of what’s next. What’s next, and actually already here, is technology as a legal platform. In criminal law, this means technology is not just a place people do business but a space in which people live. The key is to superimpose skilful advocacy onto the circuit board of the future. To help us successfully navigate through the digital era isDigital Evidence: A Practitioner’s Handbookby Gerald Chanand Susan Magotiaux,from the Emond’s Criminal Law Series, specially written with the technologically inclined skilful advocate in mind.

The lawyer by nature is a multi-tasker: trained to see the trial not as a linear exercise but as a multi-layered, multi-dimensional entity in which all of the moving parts of a case must be artfully molded into a workable case to be persuasively and successfully presented to the court. Throw into this delicate mix new age technology and you have, not a work of art, but a machine. Digital evidence in the courtroom re-constructs the traditional case – essentially taking a file from the Clarence Darrowinspired Inherit the Windbased on the Scopes “Monkey Trial” of 1925and plunking it down into the delightfully digital melange of Blade Runner 2049.  The Handbook appreciates the nuances of this task and is a helpful “all in one” guide for the practitioner faced with the challenge such digital cases bring. 

The practitioner bent is nicely explicit throughout the book as it continually and consistently metes out trial advice not as an afterthought to the law but as a practical outcome of it. For example, in the opening pages of the chapter on reasonable expectation of privacy, the authors remind the practitioner to focus on what was seized digitally as opposed to emphasizing the static location of the hardware. Of course, this focus on content over form just happens to be consistent with the focus of the Supreme Court in recent decisions on technology-based searches. In this way, these trial tips sharpen the law into a useable trial tool. But the Handbook does more than offer tools. Throughout the Handbook, the authors provide suggested factors to consider in dealing with the various in and out of court issues, which may arise in such cases. This attention to everyone means that the trial tools are “non-denominational” as they are useful for every player in the justice system defence, Crown, police and even judge. Essentially, the Handbook endeavours to create a virtual tool box that can be custom made for whomever has the need to create a case. Better yet, these tools are not saved into an outbox folder for view at the end of the book but reside within each discussion byte-point as the digital journey proceeds in the Handbook. 

Even if you are attracted to the Handbook purely for the tips, you will certainly read it, cover to cover, for the more traditional discussion of the various legal issues engaged by digital evidence. With a “bit to byte” approach, the Handbook is a smart guide on all of the technological dimensions of a criminal case from Part I on search and seizure, to Part II on disclosure, and finally ending in Part III on the use to be made of the evidence. These Parts divide the Handbook into three conceptual areas: the investigative stage, the pre-trial or case building stage, and concluding with the trial stage where digital technology is used both within the trial process as evidence and as part of the trial process as a tool for presenting that evidence. 

Each Part is further divided into discrete chapters. I am particularly impressed with the opening chapter on the Reasonable Expectation of Privacy in Digital Data. I agree with the authors that reasonable expectation of privacy (REP) “opens and ends the s. 8 analysis” (page 4). Actually, I would go further and suggest REP is theplace in which s. 8 resides (although that depiction may be too ‘territorial’ in aspect for some) and as such is the lens through which digital evidence must be viewed throughout any analysis, be it for legal commentary or trial use. Then there is the less esoteric but equally important chapter 7 in Part II Disclosure on Practical Constraints on Crown and Defence. This chapter is a tell all discussion of how to maneuver through disclosure undertakings, the real cost burden of giving and receiving digital disclosure and the myriad of access to justice issues resulting from the thousands of pieces of data disclosure connected to these files. This big-picture through a magnifying lens approach to digital evidence strikes the right balance between practice and principle – just what a skilful advocate needs and wants. 

Another highlight of the Handbook is the high-level discussions of technological terminology such as the “chipping” and “parsing” required to extract and copy data from a smart phone (page 168). Or the introduction to the “thumbnail” database (page 202) as an indicator someone has viewed a particular computer file. My favourite techie talk is the “Trojan Horse defence,” wherein the defence position goes “viral” by suggesting illegal computer data was parachuted onto the computer through the back door by a hacker or by the use of malicious software. 

If there is a weakness to the Handbook it comes by it honestly. Although Canadian case law does not have the high-speed energy of sci-fi movies, it does have a large and I mean a mega large pool of case law on the use and misuse of digital evidence. The downside to the book, which is not a failing of the authors, is the sheer number of cases which now engage digital evidence. In fact, the book just missed the release of the Supreme Court’s pronouncements in Marakahand Jonesand as such the book, although in sentiment is reflective of these seminal cases, cannot reference them directly. This is where perhaps the publisher might want to use some digital magic of their own by turning the book into a digitally interactive hyperlinked online e-zine that can be updateable by a click of a mouse. Perhaps it will become an App, accessible on your smart phone or iPad. 

Whatever the format, this book truly is a “how to” guide to the digital world, reminiscent of the Hitchhiker’s Guide to the Galaxy, the subtext is - read this book and “Don’t Panic.” More accurately, read this book and you will become more skilful at technological advocacy.

 

Can Criminal Law Keep Up With The Digital World?

A mere ten years ago, we did not “google” or “friend” or “wiki.” Twenty years ago, we did not listen to music on an iPod or talk on a Blackberry. Back then we bought Kodak film and waited to view our photos. The next decade should prove to be even more progressive as we start to use “bio interfaces” to directly connect to the Internet, thereby cutting out the “middle-man” or, to be more accurate, the “middle-machine.” With the direct ability to connect with technology, we will also see more data interfaces with which to interpret data, such as Wolfram Alpha. The advances and changes in technology have indeed been incredible.

With these new technologies, there will be challenges. Not in terms of how well we will adapt to the new advances: history has shown humans to be great adapters to new environments. Our challenge will be how well our institutions will be able to adapt and respond to the rapid changes. It is this challenge of how the criminal law responds to the new digital age, which was the subject of the panel presentation at the recent Alberta Law Conference.

To discuss this pressing issue, the panel consisted of two prosecutors with an expertise in presenting digital evidence in criminal cases: Daniel Scanlan, a B.C. Crown Attorney and author of Digital Evidence In Criminal Law and Marc Cigana, presently prosecuting the Quebec Hell’s Angels case. The discussion was first framed in the privacy context through the realities of society’s paradigm shift away from a full and robust privacy protection network, where personal information is jealously guarded and access to it is restricted, to a society of informed by social media, where intimate details are publically revealed and dynamically transferred world wide in seconds.

It is this new paradigm, which has kept the courts, the lawmakers, and the advocates behind the “eight-ball” and has created a legal disconnect. Decisions are rendered on technology, which by the time of the decision is no longer in use, thereby making the decision useless. Similarly, any legislative response is outdated by the time of the enactment date. The result is a patchwork of case law, too specific to be of much use as a precedent and lacking the informational basis to become legal principle.

The solution was a call by the panel for a more principled approach to technology. Instead of approaching digital evidence on a case-by-case basis, the participants in the criminal justice system must look beyond the facts and provide the evidentiary basis needed for a meta-decision on the use of digital technology. Such a decision or principle would produce a more measured response by our criminal justice system to new technological advances, thus promoting just results congruent with our digital age.

As it stands, the Courts struggle to conceptualize the new technology’s place in the legal literature. A neat example is the determination of the validity of a warrantless search of a cell phone based on the presence or absence of a reasonable expectation of privacy. Instead of viewing cell phones, as cell phones, and thus as a new entity requiring a unique reasonable expectation of privacy determination, the Courts struggle to pigeonhole cell phones into known categories. Thus the Court asks: Is a cell phone like a notebook? Or is a cell phone like a purse? Or is a cell phone like a computer? Unsurprisingly, the answer differs from case-case and from province to Province, leaving the case law in flux.

What is the Supreme Court of Canada’s position in this conundrum? So far, they have not made any cohesive determination on the issue but there is hope they will enter the fray with the Telus case, which recently received leave to appeal to the Supreme Court of Canada pursuant to s.40 as an issue of national importance, without being heard at the Court of Appeal level. In Telus, the police used a general warrant under s.487 of the Criminal Code to seize Telus records of text messages from the accused’s cell phone. The difficulty was the warrant gave authority not only for the seizure of historical messages, already sent, but also for the seizure of messages as they were being generated. Telus took the position such a seizure was akin to an interception of electronic communication under Part VI of the Criminal Code, which required a wiretap authorization.

Unfortunately, the framing of the case appears to be inviting the pigeonhole approach: Are the text messages merely letters in transit or are they more like a private conversation over the telephone? Instead of focusing on the characterization, the Court should be focusing on crafting a judgment, which will set down the general legal principles to be followed when faced with digital technology in the criminal law.

How they will in fact approach the issue will determine whether the digital future can easily live within our traditional precepts or whether our criminal justice system is just too outdated to face the challenges of tomorrow.