Volume I

Issue : 6: September 18, 2003

• Three Privacy Studies Recently Released
• Florida Supreme Court Rules State Employees Are Not Required to Disclose Emails
• Over 27 Million Victims of Identity Theft In The Last Five Years
• CIRA s New Policies and Amendments Effective as of September 25 2003
• UKs Advertising Standard Authority Issues First Spam Decision
• Delivery of Pop up Ads Found to be Legal
• Harvard Publishes UDRP Guide
• U.S. Court of Appeals Upholds City Refusal to Include Link To Publication Critical of City Officials
• U.S. Recording Industry Takes Action Against Individual Users and Announces Amnesty
• U.S. Justice Department Files Injunction to Shut Down RxDepot
• First Case Under Amber Alert Legislation
• Ontario To Use Software to Meet Privacy and Access to Information Laws
• Alberta Court of Appeal Upholds Acquittal of Spammer
• FDA Warns Website Selling Canadian Pharmaceuticals

Home > Volume I > Issue 6: September 18, 2003 > Alberta Court of Appeal Upholds Acquittal of Spammer

Alberta Court of Appeal Upholds Acquittal of Spammer

The Alberta Court of Appeal upheld the acquittal of a 23 year old man, with a grade 10 education, charged with counselling a criminal offence under the Criminal Code (the "Code") for selling files to people over the Internet. The files contained material relating to constructing bombs, breaking and entering, and information on a credit card number generator. The defendant had obtained the files by responding to an e-mail message he had received promoting them as "Top Secret Reports" and advertised using a teaser. The defendant then copied the web page used by those who sold the files to him and duplicated it on his own website, substituting the name and address of his business, for the purposes of resale. He also copied the spam e-mail, including the teaser that had advertised the files, and sent it to some 300-500 people, of which about 20 responded. The credit card number generator was capable of generating working credit card numbers, the bomb material contained instructions capable of producing an effective bomb, and the housebreaking file could assist someone who was committing a break and enter.

Section 464 of the Code makes it an offence to counsel other persons to commit offences. The trial judge held that the defendant had committed the actus reus of the offence, namely that the defendant had actively encouraged or induced an offence to be committed. This encouragement or inducement was made out on the facts by the use of the teaser in the e-mail distributed by the defendant which contained statements that actively promoted the use of the credit card number generator. The finding on the issue of actus reus was not appealed.

Turning to the issue of mens rea, the trial judge concluded, later upheld by the Court of Appeal, that the appropriate mental element of the offence of counselling is an intention that the defendant intend to counsel a criminal act and also intend that the counselled crime be committed. The trial judge doubted that the defendant had the subjective intent to counsel fraud through the dissemination of the credit card number generator. The evidence showed that his motivation was monetary, and that he sought to pique the curiosity of readers who might acquire the information in the same way that he was initially attracted to the information. For the same reason, the trial judge found that the defendant did not intend the fraud to be carried out.

For a copy of the decision (Court of Appeal), visit:

http://www.albertacourts.ab.ca/jdb/1998-2003/ca/Criminal/2003abca0255.pdf

For a copy of the decision (Trial Court), visit:

http://www.albertacourts.ab.ca/jdb/1998-2003/qb/Criminal/2002/2002abqb0015.pdf