Issues Surrounding Internet Statement Evidence
The gist of the story is that Vladimir Rigenco, a 19 year old man from Vaughn, Ontario pled guilty to Careless Driving in a Provincial Court and received a six month driving prohibition, 1 year probation under the Provincial Offences Act, and a $1000 fine. He was charged after he posted comments on a car enthusiast forum about how he had driven his 2006 BMW M5S at speeds of more than 100 km/hr over the speed limit.
This case raises some interesting issues surrounding electronic “statement evidence” and the anonymity of the internet. The issues were not brought before a court in this case, because it was resolved by way of a plea bargain and not a trial, but obviously the crown believed they had enough evidence to proceed with charges.
The primary issue that arises with electronic statement evidence (usually someone admitting or boasting of a crime on the internet or making threats against someone electronically) is that of identity. Just because something originates from a specific account, does not mean that the registered owner or user of that account was the person at the keyboard when the statement was made.
It is a simple enough defence to say that other people than the registered owner have access to the account, either with permission or without. In fact, in my opinion (and the opinion of most police officers I know and worked with), this defence is so common sense that it prevents an officer from forming reasonable grounds that the owner of an account is the one who committed the offence.
A parallel issue surrounding identity is how the actual identity of the real person who owns/uses an account is determined. Most people don’t use their real names on their internet accounts and, even if they do, there is no mechanism in place to determine if someone inputting the name Simon Borys is actually the real Simon Borys. (Would the real Simon Borys please stand up!?)
In order to determine the identity of the person behind an account, police usually have to write Production Orders for the companies that own the servers that host the website or forum in question to get the IP address that the statements originated from (unless they are publicly available). They then have to write a Production Order for the Internet Service Provider of that IP address to determine the actual name and location of the registered owner of the account.
That still only gets them to the house or building the statements came from, which can assist with providing corroborative evidence if the police already believe it was Simon Borys who made the statements and the IP address is registered to Simon Borys’ father at the house Simon Borys lives at. But there still might be a defence that it was someone else in the house who made the post, especially if it’s a public building or something like a student residence.
This type of investigation is time and resource consuming and does not even guarantee the identification of a suspect. However, it can be useful when other investigative avenues exist. In this case, if police had the address which the post originated from, they would have been able able to search Ministry of Transportation records for all the people residing at the house to determine if anyone there owns a 2006 BMW M5S.
A second issue of fundamental importance with respect to electronic statements is whether there is any corroborating evidence at all. Someone can, and people often do, make false claims on the internet (or elsewhere) for any number of reasons. In this case, perhaps Rigenco just wanted people to think he was cool. The bottom line is that if there is no evidence other than a statement, I would suggest that is not sufficient evidence to lay a charge.
The belief that a statement alone is sufficient evidence, when taken to its logical extreme, ends in absurdity. If I say I smoked marijuana can I be arrested for possession? If I say parked in a no parking zone can I be given a ticket? It’s just not logical to think that an unsupported inculpatory statement meets the threshold of reasonable grounds. Where is the evidence? I don’t know if there was additional evidence in this case, but the issue remains.
I hope that after reading this people have a little better understanding of the complexity and difficulty of internet related investigations and keep in mind that police are unlikely to undertake this type of investigation for all but the most serious offences.