Every now and again you read decisions that make you shake your head. Mine felt like a salt shaker when I read the decision of the Alberta Court of Appeal last week in R. v. Cockell, 2013 ABCA 112. In this case the Court reversed the conviction of an accused on three counts of child luring using a computer system under s 172.1(1) of the Criminal Code. Why? Incredibly, because it wasn’t proved the BlacKBerry smartphone used to commit the offense was a computer system.
The appellant appealed from his convictions on 11 counts; three of luring by means of a computer system. The complainants were two girls who were 12 and 13 years old when the accused first came into contact with them using the chat service Nexopia. The meetings through Nexopia led to an exchange of cell phone numbers and text messages, then to physical meetings, then to a series of sexual encounters with each of these complainants.
The text messages were sent by the accused using a BlackBerry smartphone. The offense of “Luring a Child” under s172.1(1) requires that the offense be committed by means of a computer system within the meaning of subsection 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”.
The appellant argued that there was no evidence that the device by which he communicated with or “lured” one of the complainants, a Blackberry, was a “computer system”. The Court agreed saying the following in reversing the trial judge because of the lack of evidence on whether a BlackBerry met the statutory definition.
Constable Hancey was not asked and did not testify that the appellant’s Blackberry contained computer programs pursuant to which logic and control were performed, a requirement of the offence; see s 342.1(2) (b)(i). There was no direct evidence on this point…
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”. This issue had been, however, extensively addressed mid-trial where defence expressly drew to the trial judge’s attention that in other cases upon which the Crown intended to rely, expert evidence on this point had been tendered; see the Ontario Court of Appeal decision in R v Woodward, 2011 ONCA 610 (CanLII), 2011 ONCA 610, 276 CCC (3d) 86, where a computer expert was called to explain how SMS text messages fit within the definition contained in s 342.1(2
A review of the discussion at pages 421 to 427 of the trial transcript does not reveal that the defence made the admissions the trial judge considered them to have made on this point, nor was it agreed that the judge could, in effect, take judicial notice or rely on his own knowledge of Blackberries to conclude that they were or contained a computer system. At one point the discussion touched on the issue of whether, even if a Blackberry used computer programs in executing some of its functions, there was any evidence to suggest that it used them in relation to sending text messages, but that is as far as it went.
In summary…there was no expert evidence as to the exact nature of a Blackberry, nor which showed it contained computer programs or other data, and that pursuant to those computer programs performed logic and control or any other function. It was an essential element of the offences under s 172.1(1) of the Criminal Code which the appellant was charged with, that he communicated with DP by means of a computer system, an element which the Crown was required to prove beyond a reasonable doubt; see R v Legare, 2009 SCC 56 (CanLII), 2009 SCC 56,  SCR 51 at paras 36-37.
It would not have taken much to establish that a BlackBerry smartphone is a computer system. In R. v. Rocha, 2012 ABPC 24 another Alberta court had previously held, apparently without the requirement for evidence, that given the broad definition of “computer system”, a cell phone could fall within the definition of computer system. According to the court:
A cell phone is a “device that … contains data, and … may perform any other function includ[ing] …storage and retrieval andcommunication or telecommunication to, from or within a computer system”. “Data”includes “representations of information or of concepts”. It is common knowledge that pictures (data) taken with a cell phone can be downloaded onto computers. As well, depending on the cell phone features, it may also have direct internet capabilities.
In R. v. Woodward, 2011 ONCA 610, the Ontario Court of Appeal found that a text message sent using a cell phone met the statutory requirement because of the combination of the cell phone and the carrier netowrk used to route messages. In R. v. Snow, 2011 ONCJ 180 the issue was considered so obvious that it was conceded by the accused.
It is surprising that in 2013 a court in Canada would have any difficulty in putting a child molester who uses a smartphone to lure 12 and 13 year old girls for sexual encounters behind bars. A smartphone like a BlackBerry is a computer with a mobile operating system (computer programs) with computer capabilities that run applications (also computer programs) including text messaging applications. See, Wikipedia in describing BlackBerry, Apple IOS and Google powered android smartphones saying: “A smartphone is a mobile phone built on a mobile operating system, with more advanced computing capability and connectivity than a feature phone”; Smart Phone” is a Misnomer: It’s a Computer, not a Phone “The smart phone is not a phone. It’s a computer. It’s like your desktop or laptop. It stores data. It connects to the Internet. It runs applications. It’s a computer, not a phone.”
Courts in Canada can take judicial notice of facts that are either (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. See, R. v. Daley, 2008 NBQB 21. For example, in R. v. Dragos, 2009 CanLII 51517 (Ont.Sct), an Ontario Court relied on the definition of computer system in the Criminal Code to take judicial notice of the fact that films, photographs, videos, digital images, computer graphic files can be captured and stored in digital format. In R. v. Bridgeman, 2011 ONCJ 117 another Ontario court took judicial notice of the pervasiveness of the Internet and that children can access chat rooms which raise significant concern about safety of children and the dangers that exist as a result of this new technology.
It is too bad the Crown did not argue that the judicial notice doctrine applied in the circumstances. One would think that a tech savvy Court might easily have accepted what just about every member of the Canadian public already knows; smartphones like BlackBerry smartphones are sophisticated computers. The failure of the Court to raise the issue of its own volition also suggests a need to educate the judiciary about commonly used technologies so that future cases where public safety is at issue do not fail based on such technicalities.
As it happens, the accused was unsuccessful in his appeal on other counts on which he was found guilty. However, that is not an excuse for his success on the charges of luring.
In July 2012 Parliament amended the luring offence to remove the requirement that it be effected via a computer system, substituting instead a provision that it occur via telecommunications. It is clear that text messages qualify as telecommunications under the definition in the Interpretation Act. See, R. v. TELUS Communications Co., 2013 SCC 16. Accordingly, the challenges faced by the Crown in the prosecution of luring offenses may therefore not be repeated in the future