The Halifax lawyers defending the two young men accused in the Rehtaeh Parsons case believe their clients would not have been charged had the Nova Scotia government not changed its policy on "sexting" days after the teen's death.
They are expected to argue there was an abuse of process, which if accepted could lead to the staying of charges against their clients. A senior Crown attorney has been subpoenaed as their witness to testify about the changes to the policies around sending sexually explicit pictures over the Internet.
The Nova Scotia Attorney-General is trying to have the subpoena quashed; it doesn't want its Crown in the witness box and is citing client-solicitor privilege.
The development in the Parsons case comes days after a breakthrough in the Amanda Todd case, with charges being laid against a man in Holland for using secret webcam photos to torment and stalk underage girls, including Ms. Todd. Both cases highlight the challenges of prosecuting cyberbullying because of the quickly changing nature of technology and justice officials' reaction to it.
To add another wrinkle to the Parsons case, Chris Hansen, the spokesperson for Nova Scotia's Public Prosecution Service, told The Globe and Mail there was no policy on sexting before April, 2013 – and that this one is "the only policy we have ever had and it's brand new."
She said Wednesday that the "Parsons case identified a gap in our policies. So then we came up with that one." She was referring to the sexting offences section in the Crown Attorney Manual: Prosecution and Administrative Policies for the PPS.
The new six-page policy was released on April 23, 2013; Ms. Parsons died on April 7, 2013.
Queen's University law professor Nicholas Bala says a number of issues are raised by this case. "We as a society are learning from some of these tragic cases and the police are becoming more effective in using the technology against defenders, which is appropriate."
He is skeptical about the defence, adding, the "mere fact that the Crown is sharpening its policies to reflect changing technologies is not likely to be a defence in and of itself."
In documents released in Nova Scotia Supreme Court on Wednesday morning, defence lawyer Ian Hutchison says the "Nova Scotia Public Prosecution Service administrative policy and procedure relating to 'sexting' offences, which were in place during the initial police investigation, differs from the current policy."
He says "had the 2011/2012 policy been followed I understand the Crown would have withdrawn both charges against my client."
His comments are contained in an e-mail to Alexander Smith, the Ontario Crown counsel, who was brought in to deal with this case.
Brian Church, who is defending the other young man charged in the case, supports his co-counsel's arguments.
Mr. Hutchison has subpoenaed senior Crown counsel Craig Botterill to testify about the policy. He wants to know, according to the documents, "how the Crown exercised its prosecutorial discretion to proceed with 'sexting' charges and the time of the initial police investigation and how this prosecutorial discretion is exercised post April 2013."
In his e-mail, Mr. Hutchison explains why he wants Mr. Botterill to testify.
He suggests the charges be stayed because of abuse of process: "The defence's disclosure requests relate to the exercise of prosecutorial discretion and the decision to continue with the prosecution charges laid by the police."
"This decision is a matter of Crown discretion subject only to judicial review through an abuse of process," he writes.
Supreme Court Justice Gerald Moir heard the arguments around the subpoena Wednesday morning. He asked that the provincial court, which is dealing with the charges against the two young men, decide on the subpoena.
Provincial Justice Jamie Campbell put the matter over until next week.
The two accused cannot be named because they are being tried as youths. Mr. Hutchison's client is charged with making and distributing child pornography. The other young man is facing two charges of distributing child pornography.
Rehtaeh Parsons, 17, tried to kill herself and was removed from life support several days later. She had been the victim of online bullying and a picture of her being allegedly sexually assaulted was sent around her school. The alleged assault took place when she was 15.
Her death provoked an outcry not just in her community of Cole Harbour, N.S., but nationally with many in the public wondering why no one had ever been charged in relation to the alleged assault or the bullying.
Last August, the child pornography charges were laid against the two teenagers.