Crimes Commonly Committed with Computers

Henry Waldock
Last updated: 2018.02.09

Sex & Violence	Theft & Fraud
Obscenity s. 163 Child Porn s. 163.1 Luring children s. 172.1 Threats & Harassment s.264; s.264.1; s.372 Promoting Hatred s.319	Mischief to Data s. 430(1.1) Unauthorized Use of Computer 342.1 Devices to Break into Computers 342.2 Theft of Telecommunication Service s.326 Devices to Steal Telecommunication Services s.327 Making "likenesses" of bank notes even with computer-assistance s.457 Possession of Credit Card Data 342(3) Identity Theft 402.1; 56.1 Personation 403 Devices for forging Credit Cards 342.01
Conspiracy s.465 Counselling the commission of an offence s. 464 Directing criminal offences for criminal organizations s.467.13	Copyright violation Copyright Act s.42

Possession = knowledge + control

To prove most computer crimes, you need to prove who was responsible for the incriminating computer data.  But there are no fingerprints on it.  Proving who "possessed" the data generally proves who committed the crime.

The common law sets this formula, and section 4(3) of the Criminal Code extends it.

Possession of something that's somewhere else

You can be in "possession" of a thing even if it's far away from you. 

After Mr Bremner  2007 NSCA 114 went to jail, he continued to direct others in his drug trafficking business.  One of his employees, Jackson, was a police informer, and ultimately, a police agent.  Bremner told Jackson to gather a package of drugs for delivery into the prison.  Jackson's police handlers instructed him to do it, under their supervision.  Jackson complied, and gave them to the mule for delivery, but police arrested everyone before the drugs reached Bremner.  Was Bremner in possession of the drugs?  The court said:

"...to establish constructive possession the Crown must prove that Mr. Bremner knew that the cocaine was in Mr. Jackson's custody and while in his custody, the appellant had some measure of control over it."

But Bremner never spoke to Jackson after Jackson actually bought the drugs.

The judge said that Bremner had such control over Jackson that he could rely on Jackson doing what he was told.  Therefore, the judge inferred that Bremner knew that what he asked was being done, even if he gave no further directions in the matter.  (I think this issue could more easily be solved by looking at party liability: s.21 or s.22 - abetting or counselling the commision of an offence.)

Defence also argued that the police were in control of the drugs, and therefore Bremner wasn't.  The judges found he was in "joint" (excuse the pun) possession with the police.

Therefore, a crook can be in possession of a thing he never touches, so long as he has knowledge and control.

Therefore, Ms Pham (Ont C.A. 2005) aff'd 2006 SCC 26 was found to be in "constructive possession" of drugs in her appartment, even though she wasn't there at the time. Evidence established that she used the place with another fellow for an ongoing business of selling drugs. A courier arrived and left while she was out. Police searched the place and found the drugs. Even though she might not have known of those specific drugs, she had sufficient knowledge and control over the place and the drugs going through it to be found in possession of the drugs that were part of the business.

Mr Daniels 2004 NLCA 73 subscribed to a computer bulletin board in Mexico which permitted him to download pornographic material.  In order to download pornography involving children, he had to make a specific request to the systems operator.  The items he requested were described "in graphic detail".  He claimed that before completing the download of any of the 8 files, he employed a "skip file" function which aborted the process.  None of the images were found on his hard drive.  The court found that he knew what it was, he intended to have it, and had control over where it went.  It was not necessary for him to view it for him to have "possession" of it.

Mr Chalk 2007 ONCA 815 had a step-daughter who made some kind of complaint about him.  Police arrested him.  He phoned home and asked his common-law wife to delete the files in his computer so that the authorities wouldn't find them.  Suspicious, she examined the files and found child pornography, which she turned over to the police.  The police investigated well: they seized the computer, and took statements from everyone who had access to the computer.  The accused admitted knowing for several months the pornography was there.  On appeal, he argued that that he wasn't criminally in possession because he was directing his wife to get rid of them.  The court disagreed.  A person may lawfully destroy contraband that falls into their possession.  But this guy kept it until he feared the police would find it.  Taking a statement from the suspect made a big difference here.

Control without knowledge

You can't be in possession of a thing if you don't know it's there.  If a computer user has images in his browser cache, he has control over them.  But if doesn't know they are there, then he doesn't have possession of them.  Morelli, 2010 SCC 8.

You can't be in criminal possession of an illegal thing if you don't know what it is.  Mr Beaver (1957) 118 CCC 129 (SCC) sold a bag containing morphine to an undercover police officer.  At his trial for possession, he testified that he believed it was milk sugar, and that he was intending to defraud the undercover police officer.  The trial judge would not accept that evidence as a defence.  The Supreme Court of Canada disagreed:  If he honestly believed it was milk sugar, then he was not guilty.  Therefore, if you catch someone with illegal data in their computer, to hold him liable, the Crown must prove that the suspect knew it was there.

Purchases of child pornography on Mr Garbett's 2008 ONCJ 97 credit card led police to his door.  They asked him if there was any child pornography on his computers.  He said "no", and signed consent forms allowing them to search his computers.  Then he admitted they might find something.  An officer asked him about videos, and he admitted that he had accessed videos of children.  The officer never asked about pictures.  Police found child pornography images in locations consistent with automatic storage by browsers, but not videos.  Because browsers automatically download all images at once and save them, the court oberved that Garbett could have received these pictures lower down on a web page, and not scrolled down to them.  He might never have known they they had reached his computer.  Therefore, the judge acquitted.

Before Mr McDermid 2008 ONSC moved his computer from the USA to Canada, he contacted a buddy there and asked his buddy to delete all his child pornography.  When the computers went through customs, the pornograpny was still there.  The accused was acquitted of possession (in Canada) and importing (to Canada) because he thought it was gone.

Knowledge without control

A friend of Mr Terrence (1983) 4 CCC (3d) 193 (SCC) asked him if he wanted to go for a ride in the friend's brother-in-law's car.  It was only after the police chase began that Terrance figured out the car was stolen.  The Supreme Court of Canada said that even after he had knowledge of the stolen nature of the car, he did not have control over it.  (For another example, see R. v. Chualna 2002 BCCA 650.)  Therefore, Crown must prove that the suspect actually had control over the illegal data in a computer system.

When you find brass knuckles in someone's pocket, it is reasonable to infer that he knew it was there, and therefore he is guilty of possession of a prohibited weapon.  When you find a memory plug in someone's pocket, it is reasonable to infer he knew it was there, but is it reasonable to infer that he knew that it contained child pornography? 

Proving "knowledge" of what's hidden in the box

Suppose you catch a criminal whose computer, cell phone or data storage device contains the incriminating evidence - child pornography, emails for trafficking, whatever.

Proving that the suspect had "possession" of the thing does not prove knowledge of the data in it.  It's no crime to own a cell phone.  Only knowledge of the data makes him guilty.

Mr R.D.'s 2010 BCCA 313 computer contained deleted files of child pornography.  There was evidence to suggest he used a file deletion program, and evidence that websites will download files without the user's knowledge or control.  The appeal court acquitted him of accessing and possessing, relying on some standard defences:

• When browsing websites, the user doesn't know what will be downloaded onto his computer until after he clicks the button.  Therefore, he doesn't "knowingly" cause the image to be viewed or transmitted to himself.
• Some websites and pop-ups will automatically download images that don't immediately appear on the screen.  Therefore it is possible to receive a file that you don't know about.
• Users don't know that their browsers store images in the cache, therefore they don't "possess" images they viewed using their browser.

Each of these can be answered:

• Fool me once, shame on you.  Fool me twice, shame on me.  But a guy who gets "tricked" into seeing hundreds of child pornography images must like what's going on.
• There is no commercial advantage to downloading images without showing them to the consumer.  (Perhaps someone at a child exploitation unit could investigate and report on what the websites are actually doing, rather than what's merely "possible".)
• The popularity of tools which wipe browser caches suggests that many people do know.  I don't think this broad assumption holds any more.

The court did not address an obvious inference:  Mr R.D. must have spent considerable time deleting files from the computer.  He wouldn't have done that if he didn't know the files were there.

Therefore:

1. When investigating access and possession of child pornography, you want evidence of knowledge to rebut suggestions automatic download.
2. When testifying, you need to go beyond what's merely "possible" to explain what occurs in the real world.  When asked about deleted files, and what date-stamps aren't available, you should also discuss what can be inferred from the overall pattern.

Compare Non-criminal data to criminal data

If evidence shows the suspect's responsibility of non-criminal data in the computer, such as emails or word processor documents which were created and stored around the same time, in the same account, and in similar folders as the criminal data, then you have good evidence that he was using the computer to store the criminal data.

• Did he sent an email to someone around the time the data was downloaded?
• Through the recipient of that email, can you prove who the author of it was?
  

Mr Gurr, 2007 BCSC 982 had been distributing fliers to little girls at the mall inviting them to model for him.  He admitted in a statement that he did it because he wanted to "measure" them, and touch their bodies for his sexual excitement.  But did that mean that he was responsible for the child pornography images on his computer at home?  Maybe his girlfriend put them there when she used the machine for chat, or maybe the fellow that stayed with him for a few days put them there.  An analysis of the user files on the computer suggested that he was the major user - for example, it contained his CV and his email.  Investigation into his social habits revealed he had few visitors.  In this case the court was satisfied circumstantially that all of what was in the computer was his.

Shared use / Exclusive Access

Can you prove the accused had exclusive access to the computer?  Or exclusive access to the account, if there are separate accounts on the computer?

Mr Missions (2005 NSCA 82) let other people use his computer.  One of them found ZIP disks containing child pornography.  Only because these other people testified as to his use of the ZIP disks could the court conclude he was the one who put the stuff there.

Mr Panko, 2010 ONCA 660 took his computer in to a repair shop.  He refused to divulge his password when the technicians asked, saying that he had something important on his desktop. When the technicians fixed it, they found child pornography all over the desktop. Mr Panko called repeatedly asking if his computer was fixed.  The Crown's expert said that there were three ways the files could get onto the laptop:

• downloading it knowingly;
• downloading it unknowingly; or
  
• a third party put it there.

The trial judge had a doubt that Panko knew it was there.  The summary conviction appeal judge said that doubt wasn't reasonable: In the absence of evidence that someone had hacked the computer, it was speculation to suggest that someone else put the data on his desktop without him knowing about it.  The Court of Appeal restored Mr Panko's acquittal, saying that the trial judge held a reasonable (albeit "generous") doubt.  If there are lessons to be drawn here, they are:

• proof beyond a reasonable doubt requires really good evidence of the suspect's guilt
• the defence of "some hacker must have put it there" requires clear expert evidence explaining why the defence applies or not.

Mr Tresierra's 2006 BCSC 1013 computer contained child pornography.  The operating system was installed in his name, and while he was renting a cabin in Smithers (where his computer was found), his account was used while he was there.  A screen name similar to his was used in chats from this computer in which the person using that name expressed interest in child pornography.  There was no evidence that anyone else used the cabin.  But, the date stamp on the child pornography was earlier than the installation of the operating system (though there was evidence that someone may have altered the date stamps on the computer).  Following similar logic to the trial judge in Panko, the court found insufficient evidence of possession by the accused.

However, Mr Snetsinger, 2008 ONCA 298 was convicted of possession of child pornography under fairly similar circumstances.  It was found amongst the adult pornography which he admitted was his, on his computer, which he kept in his bedroom.  He was the primary user.

Jeff Tripp's 2007 NBPC 32 girlfriend owned a computer.  It contained an account under the name Tripp.  On his browser was a folder marked "Jeff`s favourites" which contained links to pornographic websites.  His account also contained child pornography which was last accessed in the hours before police arrived at his house, and found him in the shower.  Did he have possession?  The court said "probably" but not "beyond a reasonable doubt".  Relying only on the evidence in the computer won't usually prove who put it there.  The decision suggests some questions you might want to put to the technician who analyzes the hard drive:

1. Are there separate user accounts
2. How are they made?
3. How active was this user account as opposed to other ones on the same computer?
4. When were these files most recently used?
5. What other activity occurred on the computer at that time? (email? Documents?)
6. What identifying information is available in the content of those files? (emails sent to people, letters written etc)
7. Was there any evidence of trojan horse software which would permit another person to load unwanted files onto the computer?
8. Was there any evidence of file-sharing programs which would receive files not requested by the user of the computer?

At the end of the day, however, you need human witnesses to put the accused at the keyboard, or exclude other possibilities.

Obvious Icons

Cpl Dixon 2005 CMAC 2 was court-martialed for possessing child pornography.  The appeal court found he could infer from the suggestive link titles what the files on his computer contained.

Mr Morelli's, 2010 SCC 8 browser contained "favourite" links to "Lolita porn" and "Lolita XXX".  Other links in his favourites led to adult pornography sites.  The court was prepared to accept, on the basis of expert evidence, that these links were child pornography links.  The court did not accept that the links established that Morelli knew his browser cache contained child pornography.

Telecommunication Theft s.326

Mr McLaughlin [1980] 2 S.C.R. 331 used a terminal to a university computer system to steal data to which he was not entitled. When faced with a charge of Theft of Telecommunication Service, he argued that a computer was primarily a data processing device. Held: A computer is not a telecommunication device.

Changes in technology rendered this case defunct.

Mssrs Scullion and Callan (2002) 166 C.C.C. (3d) 526 (Que CA) modified and sold encryption cards so as to be able to receive encrypted satellite signals broadcast by American companies to the USA. When charged in Canada with telecommunication theft, they argued that the American company had no licence to sell its services in Canada, and therefore, lost no money. Held: Because Canada banned decryption of foreign satellite communications, the defendants had no lawful reason to do what they were doing.

Devices and software for committing telecommunication theft. s.327.

Unauthorized Use of Computer System 342.1

What's a "computer system"?  On the evidence tendered in Woodward, 2011 ONCA 610, the switches which deliver text messages between cell phones is a "computer system".  Note that the court came to that conclusion only because it heard evidence from an expert on how the phone system works.

Mr Forsythe (Alta Prov Ct 1992) operated a private detectives agency.  His files contained CPIC printouts relevant to his investigations.  He escaped conviction under s.342.1 because there was no evidence that he used the computer systems himself, nor any specific evidence that he was party to another person doing it.

Ms Alexander, (2006 Ont S.C.) a postal worker, stole credit cards from the mail.  She used them to make unauthorized queries to the cardholders' banks about their credit.  This was charged as "mischief" by theft.  The court threw this charge out, because theft isn't mischief, and there's no such thing as theft of information.  What she did was actually unauthorized use of a computer.

Mr R.J.S., 2010 NSSC 253 used his neighbor's wireless network to lure a child.  But the "child" was an undercover cop.  He tried to explain away his luring but failed.  He he succeeded in raising a doubt about the theft.  Even though he was a computer technician, he managed to persuade the court that he might have believed that the wireless service was provided as part of his rental agreement for the appartment in which he lived.

Cst Parent, 2010 QCCQ 82 used his own id and password on CPIC to look up 3 licence plates for a private detective, possibly in exchange for information the detective gave him.  The licence plate information made its way to gangsters.  Cst Parent plainly violated the policies of the R.C.M.P. by giving CPIC information to unauthorized persons.  He acted "without colour of right", but did he act "fraudulently"?  This trial judge said no.  There must be dishonesty and bad faith before there can be a conviction under this section.

Obscenity - s. 163

There difference in obscene adult pornography and child pornography is the need for an element of degradation to render adult pornography obscene.

Little Sisters Book and Art Emporium [2002] 2 SCR 1120 was a store that catered to gays and lesbians. It imported sexually explicit material. Customs officers sometimes seized the material calling it obscenity. The main issues were discrimination and customs and excise legislation. However, at paragraph 47 the court provided a summary of definition it made of obscenity a decade earlier, in R. v. Butler, [1992] 1 S.C.R. 452:

Obscenity is illegal when the material depicts:

1. explicit sex with violence,

2. explicit sex without violence, but which subjects participants to treatment that is degrading or dehumanizing if the material creates a substantial risk of harm;

and the harm it may do exceeds community standards.  Those standards are not what the average person will tolerate, but the level of harm that society will tolerate other people inflicting on themselves.  The harm in question whether viewing the materials will predispose people to anti-social acts.  (The court says that society will tolerate some harm.)

"Explicit sex" is more than sexualized nudity, but does not require depiction of sexual intercourse.  " [E]xplicit sex captures portrayals at the far end of [that] spectrum, displayed in a graphic and unambiguous way".  R. v. Smith, (2005 Ont C.A.)

Obscenity provisions do not discriminate against minorities. (Miron v. Trudel, [1995] 2 S.C.R. 418, at para. 15, per Gonthier J.). "The point is", he concluded at para. 136, "that homosexual obscenity is proscribed because it is obscene, not because it is homosexual".

Selling videos of bondage and discipline, dominance and submission, sadism and masochistic activities does not necessarily offend this section because consensual behaviour of this sort is part of normal and acceptable adult sexual behaviour and that viewing material similar to the Eleven Videos is a normal and appropriate part of that sexual behaviour.  Canadians tolerate videos showing remarkably high levels sexual violence against women.  R. v. Price (2004 B.C. Prov Ct.)

In R. v. Smith, (2005 Ont C.A.), the impugned material contained images of nude and near-nude women, depicted as stabbed, shot or pierced. Mere nudity alone did not suffice to establish the material as obscene. But to the extent that the women were posed in sexually suggestive manners, and the injuries emphasized sexual parts of their anatomies, a jury could find that the nudity was sexual in nature.  (Re-affirmed Smith, 2012 ONCA 892)

In a different context, public indecency, the court recently moved away from "community standards" to a pure harm-based test: is tolerance of the harm that the conduct causes "incompatible with society's proper functioning".  R. v. Labaye 2005 SCC 80.

Child Pornography s. 163.1

On January 2, 2006, Criminal Code amendments expanded the definition of child pornography to include written descriptions and audio recordings depicting sex with children.

Mr Sharpe [2001] 1 SCR 45 (SCC) wrote books describing young boys enduring hardship and sexual abuse. The books went to significant pains to describe the physical and sexual abuse. When charged with possession of child porn, he complained that the offence prevented him from freely enjoying his s. 2 Charter rights of thought and expression. The Crown, and the Supreme Court of Canada agreed that the section does limit his freedoms, but most of that limitation was justified under s.1 of the Charter. However, the court did create some exceptions to the statute:

1. Self-created expressive material: i.e., any written material or visual representation created by the accused alone, and held by the accused alone, exclusively for his or her own personal use; and

2. Private recordings of lawful sexual activity: i.e., any visual recording, created by or depicting the accused, provided it does not depict unlawful sexual activity and is held by the accused exclusively for private use.

Therefore, it becomes important to investigate who created the material, and who had access to it.

Mr Dabrowski, 2007 ONCA 619, aged 28 videotaped himself having sex with his 14-year-old girlfriend.  Sometimes his friends attended and helped.  She then complained that when they broke up, he threatened to show the videos to her family and friends.  If he did, then he no longer enjoys the protection of the Sharpe exception, and could be convicted of possessing child pornography.

Mr Barabash (aged 50-60) and Mr Rollison 2015 SCC 29 recorded videos of explicit sex with 14-year-old girls.  The girls, motivated no doubt by the food, shelter and drugs these men provided, consented to the activity, and never asked the men to destroy the recordings.  Because the sexual activity was still lawful at the time, the trial judge found that none of the participants committed any offence.  The Supreme Court pointed out that the sexual activity might have been unlawful if the relationship was "exploitative", and ordered a new trial.

Mr Cockell, 2013 ABCA 112 took pornographic pictures and videos of a consenting young girl, but kept them for himself.  Because he did not share them with her, the "mutuality" of the Sharpe exception did not apply.  He was guilty of possessing child pornography.  Paragraphs 31-46 limit the Sharpe exception.  The case of Barabash tends to undermine this decision.

Mr Kuneman (2003 Ont CA) wrote material advocating men to have sex with young boys. His prose was "flowery" and the trial judge said that he demonstrated "mastery of the English language". Child porn isn't illegal if it's well written. Or if it's art. It isn't child porn unless it encourages people to have sex with children. (Bill C2 addressed this gap in the legislation.)

However, in a surprisingly graphic judgment R. v. Beattie (2004 Ont. C.A.), the court does appear to recognize that a text can implicitly advocate sex with children, and therefore be criminal, even though it does not explicitly advocate the idea.  Applied again in Missions (2005 NSCA 82).

In R. v. Ilhas 2005 BCCA 584, the court found that surreptitiously recorded videos of teenage girls in the bathroom are child pornography.  But this was only because the videos were edited to show only those periods of time when the girls were naked.  The events took place before the enactment of the voyeurism offences.

Context helps prove purpose.  Mr Grant 2009 BCCA 72 had 8 polaroid photos of a 4-year-old girl's vaginal and anal areas.  Her poses maximized the exposure of her private parts, and the pictures were taken at close range.  Defence argued that they weren't child pornography.  It was “cute” behaviour of a child “playing freely”.  Because Mr Grant hid these photos in a heating duct, the court found that Mr Grant did not keep them for their cuteness.

A friend installed LimeWire, a file-sharing on Mr Johannson's 2008 SKQB 451 computer.  The friend left the file-sharing feature on.  Mr J downloaded some child porn.  He liked what he saw, and collected more.  When a police officer connected to his computer and downloaded some, the officer used the IP address to locate him.  Mr J admitted possessing the stuff, but claimed he didn't know it was sharing his files with others.  The judge didn't buy this because:

• Johansson had many years of computer experience, and did sophisticated things with it.
• The program would have alerted him to what it was doing.
• There was evidence that he had read up on Wikipedia what file sharing programs do.

This suggests that in such cases, you should collect evidence of what the accused knew, or must have known about the programs he was using.

Mr Sauve, 2008 ONCJ 512 worked in a group home for troubled youth.  One of them had a problem with child pornography, and downloaded some from the internet onto a group home computer.  Before it was removed from that computer, Mr Sauve copied the material onto another computer for "research" purposes.  He thought that a treatment plan involving harm reduction might succeed.  The court accepted this as a defence under s. 163.1(6).

Mr Katigbak, 2011 SCC 48, was an artist who collected child pornography for the purpose of creating an art exhibition which revealed the harm of child exploitation.  Except, he never did anything except collect it for 7 years.  He stored his pornography on his computer with thousands of images of adult pornography which he kept for "personal entertainment".  The trial judge acquitted him because he possessed the child pornography for the purpose of making art.  The Supreme Court of Canada ordered a new trial because the trial judge failed to consider whether number of images collected for so long was reasonable, and whether this activity posed an "undue risk of harm" to children.  The defence of "legitimate" possession of child pornography extends only so far as is reasonable for the purpose of the possession.

"Making"

Is copying child pornography from one medium to another "making" child pornography? Mr Horvat (2006 Ont Prov. Ct.) did just that, and was found guilty. However, this was only a decision of the Ontario Provincial Court.

At the age of 22, Mr Walsh (2006 Ont CA) fell in love with a 15-year old girl.  They travelled to Toronto to watch a Maple Leafs game, and spent the night in a hotel.  There, they had consensual sex, and he photographed their activities.  Two months later, she dumped him, which upset him.  He created a collage of the pictures, showing her face and their bodies engaged in oral and vaginal intercourse.  (But he didn't show his own face.)  The commentary imitated the well-known MasterCard ads:

Weekend away.

Hockey tickets: Free               "Extra Shit": About $250.00

Hotel room: $269.00            a RING (fuckin' stupid): $500.00

telling me you love me one weekend and that it's over the next weekend,

and trusting me with these pics.

"PRICELESS"