Lawyer off hook for taking down client’s Facebook account

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This article was published 28/02/2023 (1132 days ago), so information in it may no longer be current.

A disciplinary panel has found a Manitoba lawyer not guilty of obstructing justice after he admitted to deactivating the Facebook account of a client who had been arrested on firearm charges.

Rohit Gupta was charged with concealing incriminating evidence so as to obstruct justice by hindering a police investigation. He appeared before a Law Society of Manitoba disciplinary panel last month.

While a case against Gupta could not be made, “the decision and reasons for the decision in this matter should not serve as an example to other members of what to do in similar circumstances,” the disciplinary panel wrote in a majority 2-1 decision posted online Tuesday.

Gupta, who practises in Calgary and Manitoba, was a vocal critic of disparities faced by those seeking bail in northern Manitoba. He launched several recent court challenges on the issue.

“The panel acknowledges the member’s commitment to raise important legal issues through court challenges that shed light on the criminal justice system’s treatment of the most disadvantaged and vulnerable populations ought to be commended,” the panel wrote. “His decision and actions that resulted in his being charged and appearing before the panel, however, are not.”

Gupta is not identified by name in the decision, but as Member A.

Facebook account deactivated while police viewing it

Gupta represented a northern Manitoba man who was arrested and taken into custody in June 2019 after his employer and co-workers reported he was in possession of a gun and had made “concerning” comments about using it, the panel heard.

Police charged the man with possession of a firearm while prohibited and possession of a firearm without a licence. During an initial interview, police told the man they had viewed his Facebook account, including pictures of him with a firearm, antisemitic comments and related posts, and considered them evidence against him.

The next morning, Gupta talked to his client on the phone and asked him for his Facebook log-in details. Gupta deactivated the man’s account while he was still on the phone with him and at the same time police were looking at the account.

By this time, Gupta had received disclosure material from the police that included screenshots from the man’s Facebook page.

Sometime later, police secured an order against Facebook to ensure the preservation of the deactivated account. Police obtained production orders against Facebook and Shaw Communications that ultimately linked Gupta’s internet address to the deactivation of the Facebook account.

Gupta’s client reactivated his account sometime between his release on bail July 4, 2019, and July 25.

Charges against the man were stayed in January 2020 as the Crown concluded there was no reasonable likelihood of conviction.

‘Would handle situation differently today’

In July 2020, a review by Ontario Crown prosecutors concluded that prosecuting Gupta for attempting to obstruct justice was unlikely to succeed as it would be difficult to prove he had the required specific intent. The following December, Manitoba RCMP filed an obstructing justice complaint against Gupta with the Law Society of Manitoba.

Gupta testified he was unaware of any complaint against him until notified by the law society.

Gupta said he believed police had reviewed his client’s Facebook posts in their entirety and deactivated the account thinking the man’s posts about Israel were upsetting his co-workers and would make it more difficult for him to secure bail. Gupta admitted he did not ask police if they had completed their review of his client’s Facebook account before deactivating it.

“The member testified that he would handle the situation differently today,” the panel wrote.

The panel said while Gupta had no basis to conclude police had finished reviewing his client’s Facebook account, there was also no evidence to prove his actions impeded the police investigation.

“The offence alleged is one of obstruction, not attempt to obstruct,” the panel wrote, noting it was unclear which police officers were viewing the Facebook account at the time it was deactivated.

“We don’t know whether the account was being viewed for an investigative purpose or some other reason, for example, curiosity. We do not know how much more, if any, investigation the RCMP were going to do with the Facebook account at the time of deactivation. It would be speculative to make (a finding of guilt)… based on this evidence.”

“This was a difficult case and a close call,” the panel wrote as it dismissed the charge against Gupta.

dean.pritchard@freepress.mb.ca