Edmonton spammer case goes before Supreme Court

An Edmonton man, who was acquitted two years ago in Alberta for selling a credit card generator and recipes how to make explosives over the Internet saw his case go to the Supreme Court of Canada on Friday.

There is some anticipation the case could have an impact on similar Internet related activities.

Theodore C. Ling, a partner at Baker and McKenzie LLP in Toronto said this case raises the question whether when it comes to “crimes that require proof of legal intent to counsel an offense, a different standard should be applied to online activities.”

Crown prosecutors argued that under Section 464 of the Criminal Code of Canada, Rene Luther Hamilton, by selling this information, counseled other individuals to commit four criminal acts: making explosives with intent, doing anything with intent to cause an explosion, breaking and entering with intent, and fraud through dissemination of a credit card generator. Hamilton didn’t create these documents himself, but purchased a set of tutorials from the Internet called “Top Secret Files”, which contained the information how to make bombs and credit cards.

“At the core of the Crown’s case,” Ling says, “is the argument that due to the nature of online postings, which (appear to be) counseling an offense and the offending party, a different approach must be taken by the courts in determining whether the requisite legal intent exists.”

If the Supreme Court fails to overturn Alberta’s court decisions, Ling said another scenario would be created where existing criminal laws would be ineffective in dealing with cybercrime and would add to the debate if new laws need to be passed to deal with Internet-specific crimes.

Hamilton’s Defence argued that – while Hamilton did sell this information (he solicited between 300 and 500 customers through spam) – he had no intention of inducing his customers to commit crimes. He sold just upward of 20 units, ranging in price from US$20 to US$75, according to court documents.

The Court agreed and Hamilton was set free. But the Crown appealed on the basis that it was irrelevant whether Hamilton intended others to use the information he was selling to commit crimes but the fact that he sold them automatically established intent.

Edmonton City Police became wise to Hamilton’s operation after receiving complaints from recipients of his spam. Police were able to track him down because the address of Hamilton’s failed company, H and H Enterprises, appeared on the e-mails.

Bruno Soucy, an associate at law firm Blaney McMurtry LLP in Toronto said it was apparent Hamilton intended to distribute these documents but he said the Crown obviously failed to prove he had the intent to entice others to commit crimes.

Soucy said Section 464 is a very broad and general law that is usually applied to situations where, for example, an individual hires an assassin who is actually an undercover police officer. Obviously the undercover officer wouldn’t carry out the murder but this allows for prosecution of people who set out to hire hitmen. Also, because Section 464 can be applied so broadly, courts are careful about when they apply it to prevent abuse, he added.

Soucy said he would be surprised if the Supreme Court were to uphold the Crown’s position. He said arguably Hamilton did some bad things but Section 464 may not be sufficient to convict him.

“The provision may not be able to convict him because they couldn’t prove he intended those people [his customers] to commit those crimes. You have to have an intention that the crime be carried out,” he explained.

Bruce McWilliam, a partner with legal firm McMillan Binch in LLP in Toronto agreed. He said there have been cases in the past where the Crown has argued that the second aspect of intent — the intent for a crime to be committed — is not relevant and in each case the Crown has lost.

“In some ways the fact that this material was disseminated on the Internet was incidental because this kind of case could have occurred if someone took out an ad in a newspaper,” McWilliam said. “On the other hand the Internet makes it easier to disseminate information so it changes the magnitude or ease of way to do this. But I think the courts looking at this, would apply the same sort of principles if it occurred without connection to the Internet.

If the Supreme Court does acquit Hamilton, Soucy said it might open the doors for the creation of a new provision to deter the types of behaviour Hamilton engaged in. But McWilliam said the philosophy of the criminal code is to create technology-neutral drafting so it’s likely that any subsequent provisions won’t specifically apply to the Internet, but be broader so they can be applied to a wider range of behaviours.

Theoretically, if the Supreme Court was to convict Hamilton, Soucy said this could have repurcussions for the HPCVA — hacking, phreaking, cracking, virus, anarchy — element of society, who are mostly kids and teenagers who think it’s cool to pass around information from texts like the Anarchist Cookbook over the Web, or who hack into systems to impress their friends. It could also target other hackers who aren’t engaged in criminal activities but engage in hacking to discuss things like security problems with others in the community.

Additionally, Soucy said this is a case, which civil liberties groups are closely watching because what it deals with is very close to what could be dubbed a “thought crime” Alan Borovoy, general counsel for the Canadian Civil Liberties Association (CCAA) said there is a danger of stretching the meaning of Section 464. In fact, the CCAA filed a document with the Supreme Court of Canada, protesting the use of Section 464 in the Hamilton case.

Borovoy said Hamilton was simply selling a “here’s how you can do it,” without having a sense of any sort of immediate criminal actions being taken.

“It should be used to catch someone who pays someone $500 on to beat someone else up, not to catch Pierre Burton for showing someone on TV how to roll a joint,” he said.

Another group that is watching this case closely are those in the anti-spamming lobby.

“This is one of the first criminal intents to deal with what could be construed as spam,” said Michael Geist Canada research chair in Internet and e-commerce law in the Faculty of Law at the University of Ottawa. “While the Internet was used as the dissemination vehicle, the key issues of the case don’t focus on the Internet per se. The larger question of the applicability of the criminal code and other Canadian law to spamming activities is one that continues to generate lots of interest.”

Geist sits on Canada’s national Spam Task Force.

“In this case, unless the Supreme Court comes up with something surprising that addresses that specific issue, which I don’t think a lot of people think it will then, then the case doesn’t have a huge amount of impact at least in the case of the [Spam] Task Force and the broader questions around spam and the criminal code.”

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