Her Majesty the Queen - v. -, 2014 SKPC 118

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 118 Date: May 26, 2014 Information: 46424336 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Darren Maurer Appearing: Michael Segu For the Crown Chris Lavier For the Accused JUDGMENT S.L. METIVIER , J INTRODUCTION [ 1 ] The accused is charged that between the 12th day of August, A.D. 2012 and the 2nd day of October A.D. 2012, at or near Saskatoon, Saskatchewan, that he did: (

a) fraudulently and without color of right, use a computer system with intent to commit an offence pursuant to section 430(1.1) (

c) of the Criminal Code , by stealing personal data of Christine Lee and posting it online without her permission, contrary to

section 342.1 of

the Criminal Code ; and (

b) commit mischief in relation to data by willfully stealing data belonging to Christine Lee and posting it online without her permission, contrary to sections 430(1.1) and 430(5) of the Criminal Code . [ 2 ] Jurisdiction and identification are not in dispute. The accused further admits that he distributed nude images of the complainant by posting them on the Internet. [ 3 ] The accused denies that he stole the images. He says that the complainant gave him the images and he was entitled to deal with them as he wished. Relying on the case of R. v.

Stewart [1] , defence counsel argues that while the accused ’ s conduct may be morally wrong, it does not constitute an offence under the Criminal Code . [ 4 ] The Crown submits that “data”, as defined in s. 342.1 , is property, and argues that it has proven the elements of the offences set out in the Information beyond a reasonable doubt. ISSUE [ 5 ] The following issue is determinative of this action: 1. Can the “ data ” , in this case the images, be the object of theft under the Criminal Code ? THE LAW [ 6 ] The relevant sections of the Criminal Code provide: 342.1

(1) Every one who, fraudulently and without colour of right, … (

c) uses or causes to be used, directly or indirectly, a computer system with intent to commit an offence under paragraph (

a) or (

b) or an offence under

section 430 in relation to data or a computer system, … is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or is guilty of an offence punishable on

summary conviction.

(2) In this section, … “data” means representations of information or of concepts that are being prepared or have been prepared in a form suitable for use in a computer system; …

430(1.1) Every one commits mischief who willfully (

a) destroys or alters data; (

b) renders data meaningless, useless or ineffective; (

c) obstructs, interrupts or interferes with the lawful use of data; or (

d) obstructs, interrupts or interferes with any person in the lawful use of data or denies access to data to any person who is entitled thereto.

(5) Everyone who commits mischief in relation to data (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or (

b) is guilty of an offence punishable on

summary conviction. BACKGROUND FACTS [ 7 ] The accused is knowledgeable about computers: he completed a two-year course in computer programming and has held various jobs in computer-related fields. [ 8 ] Prior to her involvement with the accused, the complainant sent nude images of herself to a previous boyfriend from her laptop computer. She took steps to delete the images from her computer when the relationship ended. [ 9 ] The accused and the complainant met at work and became intimately involved in early February 2012.

The relationship, which lasted for about six months, became increasingly dysfunctional towards the end. [ 10 ] The complainant’s laptop was damaged at work on August 30, 2012. She immediately contacted the accused for his help as she knew that he had experience with computer repair.

The accused offered to have a look at the laptop so the complainant dropped it off at his house and she returned to work. [ 11 ] The accused quickly determined that it would not be cost-effective to fix the laptop; accordingly, he advised the complainant that her best option would be to purchase a new laptop and sell the old one for parts.

The accused testified that the complainant indicated in a telephone conversation that he could keep the laptop for parts, provided he assist her with the purchase and set up of a new laptop. [ 12 ] The discussion then turned to the preservation and transfer of data from the old laptop to a new laptop. The accused testified that he explained to the complainant that he could attempt to preserve the data on the old laptop by pulling out the hard drive and processing the data through his computer, running it through anti-virus software in the process.

He says that he inquired whether there was anything on the laptop that he should not see and he says that he was assured, “over and over again that there was nothing.” [ 13 ] As the data was put through the virus scan, the accused testified that virus warnings popped up and the suspicious files were quarantined on his computer. When the accused opened the files on his computer, he discovered the images and he contacted the complainant to discuss the situation. The accused testified that as a result of their discussion, the complainant agreed that he could keep the images.

[ 14 ] The complainant testified that she was upset that the accused had the images, which she thought she had deleted from her laptop. She asked the accused to delete the images, but he would not agree and avoided the request by saying they would talk about it. The complainant acknowledged that she told the accused to “go ahead” with the virus scan and she agreed that she told the accused he could keep her laptop for parts. [ 15 ] On September 8, 2012, the accused and complainant had an argument.

The accused threatened to post the complainant’s images on the Internet unless she was “good to him” for a month, in which case he would delete them. [ 16 ] The relationship between the accused and the complainant spiraled downward. On October 1, 2012, the accused carried out his threat by posting a website on the Internet with the images of the complainant. In addition, he distributed flyers at the complainant’s workplace with a link to the website and lodged a complaint to the Human Rights Commission concerning her work.

The complainant was suspended from her employment as a result of the accused’s actions. [ 17 ] On October 2, 2012, the complainant’s lawyer sent a letter to the accused demanding that he remove all images/information relating to the complainant from the Internet. The website was taken down approximately 12 hours after it had been posted. ANALYSIS 1.

Can the “data ” be the object of theft under the Criminal Code ? [ 18 ] The Crown is required to prove the offence particularized in the charge. [2] In the present case, the Crown alleges in both count one and count two that the accused stole data belonging to Christine Lee, and posted it online without her permission.

It is the alleged theft of the data that gives rise to the charge of unauthorized use of a computer with intent to commit mischief in count one, and the charge of mischief in relation to data in count two. [ 19 ] The “data”, in this case, is the nude images quarantined onto the accused’s computer when he transferred the data from the complainant’s broken computer and completed the virus scan. [ 20 ]

Section 2 of the Criminal Code defines the word “steal” as “to commit theft.” The offence of theft is set out in s. 322 (1) of the Criminal Code as follows: 322

(1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything whether animate or inanimate, with intent, (

a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it of the thing or of his property or interest in it; … (

d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted. [ 21 ] In Stewart , the Supreme Court of Canada considered whether personal information of employees could be the object of theft under the Criminal Code . It was agreed that no physical object would have been taken and that the information was confidential information per se , a pure intangible. Upon reviewing the wording of the theft provision in the Criminal Code , Lamer J., as he then was, concluded that the meaning of “anything” is restricted in two ways.

First, whether tangible or intangible, “anything” must be of such a nature that it can be the subject of a proprietary right. Second, the property must be capable of being taken or converted in a manner that results in the deprivation of the victim. He determined that confidential information is not property for the purposes of theft under the Criminal Code and stated further that:

To the extent that protection is warranted for confidential information it should be granted through legislative enactment and not through judicial extension of the concept of property or of the scope of the theft provision under the Criminal Code . [ 22 ] The case of R. v.

Alexander [3] , involved a charge similar to the wording in count one of this case, alleging that the accused did: fraudulently and without colour of right obtain, directly or indirectly a computer service to wit: the Royal Bank Financial Group computer system with intent to commit the offence of mischief contrary to s. 430 of the Criminal Code by willfully stealing client data from the band data base, contrary to the Criminal Code. [ 23 ] The “data” in Alexander involved information about credit cards that were not received by the cardholder and were fraudulently activated or used.

The accused was committed to stand trial on a charge of unauthorized use of a computer with the intent to commit mischief, contrary to s. 342.1 of the Criminal Code , resulting in an application for certiorari to quash her committal. [ 24 ] The hearing judge noted that, although stealing is not an essential element of the offence created by s. 342.1 (

c) or by s. 430 (1.1), the Crown is required to prove the charge as alleged. Since the Crown alleged theft, the Court found that the Crown is required to prove it. Granting the application for certiorari, the judge concluded that: “the mere accessing and sharing of such data cannot constitute “stealing” given that s.2 of the Criminal Code defines the word steal as “to commit theft” and R. v.

Stewart (1988), 41 C.C.C (3d0 481 (S.C.C.) makes it clear that accessing confidential information does not constitute theft.” [ 25 ] Following the Supreme Court of Canada ’ s decision in Stewart , and considering its application in Alexander , I find that the “ data ” in this case does not fall within the meaning of “ anything ” as that word is used in s. 322(1) of the Criminal Code .

The data is not capable of being taken or converted in a manner that results in the deprivation of the victim. [ 26 ] If, for the sake of argument, the data was considered property capable of theft, section 322(1) dictates that a theft is committed when a person “converts to his use or to the use of another person, anything whether animate or inanimate, with intent” (

a) to deprive temporarily or absolutely, the owner of it, or a person who has a special property or interest in it or (

d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted”. The accused did not intend to deprive the complainant of her property interest in the data, nor did he intend to deal with the data in a manner that it could not be restored to the condition it was in at the time it was taken or converted.

By posting the data on the Internet, the accused intended to put the data in the public realm, and thereby humiliate and embarrass the complainant and punish her for perceived bad behaviour. [ 27 ] As the particulars in both counts stipulate that it is the act of theft that gives rise to the substantive charge, I must find the accused not guilty of both counts. [ 28 ] In Stewart , the Court observed that there should be specific legislative enactment to deal with the sharing of confidential information, rather than a judicial overextension of the Criminal Code ’s definition of theft. [ 29 ] Bill C-13 has been drafted by Parliament to address a gap in the legislation concerning the non-consensual distribution of intimate images.

Bill C-13 proposes to amend the Criminal Code by creating the following new offence: 162.1

(1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty: (

a) of an indictable offence and liable to imprisonment for a term of not more than five years; or (

b) of an offence punishable on

summary conviction.

[30] However, this provision has not yet been enacted and the charge as drafted is an inappropriate substitute based on the abovejurisprudence. [31] The accused’s conduct in this case is despicable; however, for the reasons stated above, it does not establish the charges setout in the Information. [32] I therefore find the accused not guilty of either count on the Information. _______________________ S.L. Metivier, J [1] (SCC), [1988] 1 S.C.R. 963[Stewart]. [2] R. v. Saunders, (SCC), [1990] 1 S.C.R. 1020, at p. 1023. [3] [2006] O.J. No. 3173 (ON SC) [Alexander].