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Do judges need coaching on powers of cell phones?

|Written By Jennifer Brown

A decision by the Alberta Court of Appeal last week has some wondering if judges need more education around the powers of devices they themselves probably use every day.

‘[D]id they think it was small little elves within BlackBerry devices who were routing text messages to who they were going to?’ asks one lawyer. (Photo: Shutterstock)

In R. v Cockell the court reversed the conviction of Brian Allan Cockell on three counts of child luring using a computer system under s. 172.1(1) of the Criminal Code because it decided it wasn’t convinced the lower court had determined that the BlackBerry smartphone used to text message the complainants was in fact a computer system.

The accused used a BlackBerry to text message two girls aged 12 and 13. Contact was first made using using the chat service Nexopia. The meetings through Nexopia led to an exchange of cell phone numbers and text messages, then to physical meetings and sexual encounters with the girls.

The case raises serious questions about how the Crown and the judge in the case understand commonly used devices, says McCarthy Tétrault LLP technology and IP lawyer Barry Sookman, who blogged about the decision.

“I think it is a matter of judicial education. I’m sure they all use cell phones — I’m sure they all have smartphones — did they think it was small little elves within BlackBerry devices who were routing text messages to who they were going to? What would this be if it’s not a computer?”

All of the communication in question from the accused was sent via text message from a Blackberry to the complainant.

In his blog, Sookman note the offence of “luring a child” under s. 172.1(1) of the Criminal Code requires the offence be committed by means of a computer system within the meaning of s. 342.1(2) of the Criminal Code. That section defines the term “computer system” as “a device that, or a group of interconnected or related devices one or more of which, (a) contains computer programs or other data, and (b) pursuant to computer programs (i) performs logic and control, and (ii) may perform any other function.”

In its decision the appeal court stated:

There simply was no evidence, direct or circumstantial, that the appellant’s Blackberry was a computer system, or as to the content of any communications made by computer.

The trial judge incorrectly believed the defence to have admitted that the Blackberry met all the requirements of the definition of “computer system” in s 342.1(2) of the Criminal Code. He stated at para 20 of his decision that only the issue of identification was in play in relation to the three luring counts. His reasons do not otherwise address the issue of whether the Blackberry was a “computer system.”

But Sookman says the Crown should have brought forward technical evidence if there was a need and if there was a need for judicial evidence it could also have been decided based on judicial notice.

He notes there are also a number of previous cases where a cell phone has been proven to be a computer system. For example, in In R. v. Rocha, another Alberta court had previously held that given the broad definition of “computer system,” a cell phone could fall within the definition of computer system.

“For the judges not to recognize how basic the definition of a computer system is is really quite surprising in 2013. Are we going to have the same problems with the new anti-spam law proving a smartphone is a computer?”

Parliament amended the luring offence in July 2012 to remove the requirement that it be effected via a computer system, substituting instead a provision that it occur via telecommunications.

The accused was unsuccessful in his appeal on other counts on which he was found guilty including two of sexual assault, two of sexual interference, one of abduction, two of possession of child pornography and one count of making child pornography.


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