Criminal Law in Cyberspace: Obscenity and Child Pornography

Anyone with a computer and a modem has access to a world-wide network of information known as Cyberspace [1], the Internet, or the Information Highway. Information, knowledge, and education that were once the exclusive province of the wealthy have, over the centuries, become less a private good and more a public good as technological advances made it easier to record, duplication, and distribute the fruits of human creativity and thought. The evolution of a commonwealth of information has been accompanied by tensions between the interests of those who already enjoyed access to information and the interests of those who desired access. The law, too, evolved as it became clear that traditional notions of property are severely strained to capture forms of wealth that bear little resemblance to estates in land. For example, environmental laws that restrict what owners can do with property are less likely to be seen as "takings" by the govenrment; tax laws are less protective of property as the distinction between capital and income becomes harder to justify; family laws recognize that equitable treatment of separated spouses requires attention to wealth from income and not only from sharing property; tenancy laws have moved from leashold estates to contracts for the use of space; and so on. Despite the erosion of the importance of property in defining wealth, "intellectual property" continues to cast a feudal net over emergent forms of information, but that too will pass when advocates for commonwelath emerge to challenge those whose wealth derives from controlling access to and use of information.

Today's user who enters an interconnected linkage of computers becomes privy to a vast amount of information, by reading text, viewing images, and listening to sounds.

The Present Paper

The concern of this paper is with the application of criminal law to illegal sexual material that is possessed or communicated electronically. Although there is no principled difference between electronic media and any other medium of fixation, some difficult questions arise in applying the laws. For example, network surfers enjoy considerable anonymity, making it hard to prove the identity of perpetrators [2]. As well, a sensationalistic press has attracted a considerable amount of public attention and fear in advancing a romanticized image of Cyberspace as the new badlands. The next sections define the kinds of sexual material that are illegal.

Illegal Sexual Material: Overview

Although the word "pornogrpahy" arouses negative emotions, only some of the material encompassed by the word attracts criminal sanctions in Canada. By the Criminal Code, material is deemed to be obscene if it unduly exploits sex, or combines sex with crime, horror, cruelty, or violence. The Supreme Court of Canada, in R. v. Butler [3], determined that:

(T)he portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex. Explicit sex which is degrading or dehumanizing may be undue if the risk of harm is substantial. Finally, explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as undue exploitation of sex unless it employs children in its production.

It is legal to possess obscene material for personal use, but it is illegal to make, print, publish, distribute or circulate it or to possess it for those purposes. It is also illegal to sell it or expose it to public view, but only if one does so knowingly. Although child pornography is obscene, hence subject to the general obscenity laws, the Criminal Code expressly prohibits personal possession of child pornography. Apparently Canadian society tolerates private masturbation aided by obscene pictures only if no persons in the pictures appear to be under the age of eighteen.

Illegal Sexual Materials: Details

The concern here is with the sections of the Criminal Code that are directed at obscenity and child pornography.

Obscenity

Section 163(8) of the Criminal Code states:

(A)ny publication a dominant feature of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.

With the exception of possession for personal use, most uses of obscene material are illegal. Some uses are subject to strict liability, which means that a perpetrator can be found guilty without being aware of the particular contents the court deems to be obscene; Section 163(1) states:

Every one commits an offence who

(a) makes, prints, publishes, distributes, circulates, or has in his possession for the purpose of publication, distribution or circulation any obscene written matter, picture, model, phonographic record, or other thing whatever.

For other uses, proof of guilt requires proof that the perpetrator was aware of the specific contents of the materials that a court deems to be obscene; Section 163(2) states:

Every one commits an offence who knowingly, without justification or excuse

(a) sells, exposes to public view, or has in his possession for such a purpose any obscene written matter, picture, model, phonograph record, or other thing whatever.

Butler

The Supreme Court of Canada upheld the obscenity legislation against a Charter challenge in Butler. Sopinka J. accepted that there is no unambiguous evidence that such material causes harm, but took judicial notice of evidence that some persons perceive the material to be harmful. Sopinka J. proposed a "community standards" test, which assumes that Canadians will not tolerate having persons exposed to material that is perceived to cause harm. The test is a sliding scale, with the perception of harm being highest for sexually explicit material in which there is violence, high for sexually explicit material that can be characterized as degrading or dehumanizing, and low for sexually explicit material that is neither violent nor degrading unless the material involves children, in which case the perception of harm is very high.

Sopinka J. [6] recently supported the Butler decision, maintaining that community standards can determine whether material is obscene, hence presumably harmful to society. He expressed the view that community standards are the same everywhere in Canada, unlike the US, where community standards vary from location to location, enabling a prosecutor to shop around for a conservative jurisdiction. For example, in Thomas [7], the operators of Amateur Action, a Bulletin Board System (BBS), allowed others to view sexually explicit materials. After unsuccessfully prosecuting them in Berkeley, their home, federal agents downloaded files in Tennessee, where content restrictions are less liberal, and successfully prosecuted them [8]. Sopinka J. did not mention that, on the basis of the standards all Canadians are deemed to share, "more than half of all feminist bookstores in Canada have had materials confiscated or the sales of some materials suspended by the government. The most susceptible to repression have been stores that specialize in lesbian and gay writings" [9].

Why is Obscenity Illegal?

Although there is no unambiguous evidence that obscene material is harmful, the Court accepted a viewpoint that is based not on evidence but rather on the perceptions of its authors. The viewpoint, developed by Catherine MacKinnon and Andrea Dworkin, has been searchingly examined by Donald P. Judges [10]. Judges proposes that the authoritarian attitudes of proponents of censorship, if accepted in legal contexts, harm important values enshrined in the US Constitution. Interestingly, the model legislation proposed by MacKinnon and Dworkin, which formed much of the rationale in Butler, has been rejected in US actions [11], and Canada has become the target of international ridicule for accepting the rationale advanced by those authors [12].

The MacKinnon-Dworkin thesis is that pornography inflicts three types of harm on women: production harm (participants in the production of the materials are abused in the process); consumption-violence harm (consumers of pornography are more likely to inflict violence on women); and consumption-attitude harm (its mere existence contributes to a dehumanized and degraded view of women, manifested by, for example, sexual harassment). The authors do not present evidence that the harms actually occur, but use validity by fiat and dramatic rhetoric to advance their argument. For example, MacKinnon's assertion that "a stiff prick turns the mind to shit" does not lead one to seek evidence of cortical accumulations of fecal matter in aroused males, but it does cast aroused males in a somewhat unflattering and threatening light. Similarly, MacKinnon intentionally fails to distinguish between actions and words: "To express eroticism is to engage in eroticism, meaning to perform a sex act. To say it is to do it." MacKinnon's tactic is to equate male dominance and violence against women with pornography: "With pornography, men masturbate to women being exposed, humiliated, violated, degraded, mutilated, dismembered, bound, gagged, tortured, and killed." Such extreme examples cannot fail to arouse feelings of disgust, but that disgust does absolutely nothing to advance her thesis that the extremes are really no different than any other erotic material, from which conclusion she argues for censorship of all erotic materials [13].

Regardless of the reasoning, or lack of reasoning, by which the Supreme Court of Canada accepted that criminalization of obscenity is an acceptable limit on free expression, the fact remains that many uses of obscene materials are against the law in Canada.

Child Pornography

Section 163.1(1) defines "child pornography" as

(a) a photographic, film, or other visual representation, whether or not it was made by electronic or mechanical means

(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or

(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; or

(b) any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act.

The definition of child pornography hence applies only to visual representations, not to the means by which those representations are made, and to texts only if those texts advocate or counsel criminally prohibited sexual activity with young persons.

Section 163.1(2) includes a prison term of up to ten years for:

Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography.

Section 163.1(3) includes a prison term of up to ten years for:

Every person who imports, distributes, sells or possesses for the purpose of distribution or sale any child pornography.

Section 163.1(4) includes a prison term of up to five years for:

Every person who possesses any child pornography.

Why is it Illegal to Possess Child Pornography?

The rationale for making possession of child pornography a crime was discussed in R. v. Stroempl:

The child pornography provisions of the Criminal Code came into force on August 1, 1993. Parliament has shown its concern in relation to the possession aspect of the evil of child pornography by providing a maximum sentence of five years imprisonment for simple possession of child pornography. In R. v. Jewell and Gramlick, July 21, 1995, a case concerned primarily with the more serious offence of producing child pornography, Mr. Justice Finlayson, for this court, made the following observations on the general social malady of child pornography which are apposite to the present case:
The conduct underlying these convictions discloses a subculture that is unsettling and repugnant. These appeals confront the court with the pressing issue of how to deal with offenders such as the appellants who prey on young persons, boys in this case, for no other purpose than their own sexual gratification. The court must be responsive to emerging concerns that pornography, particularly child pornography, has become an area of criminality that increasingly menaces our young people and threatens our values as a society. Because pornography now can be so easily prepared and disseminated through relatively inexpensive means, such as the hand-held video camera used in the case under appeal, it has emerged as a very real problem in our society.
Mr. Justice Finlayson then quoted the following from the reasons of Mr. Justice McCombs of the Ontario Court (General Division) in R. v. Paintings, Drawings, and Photographic Slides, April 20, 1995:
The evil of child pornography lies not only in the fact that actual children are often used in its production, but also in the use to which it is put. Although behavioural scientists disagree about the reliability of scientific studies, there is general agreement among clinicians that some pedophiles use child pornography in ways that put children at risk. It is used to "reinforce cognitive distortions" (by rationalizing pedophilia as a normal sexual preference); to fuel their sexual fantasies (for example, through masturbation); and to "groom" children, by showing it to them in order to promote discussion of sexual matters and thereby persuade then that such activity is normal.
The possession of child pornography is a very important contributing element in the general problem of child pornography. In a very real sense possessors such as the appellant instigate the production and distribution of child pornography--and the production of child pornography, in turn, frequently involves direct child abuse in one form or another. The trial judge was right in his observation that if the courts, through the imposition of appropriate sanctions, stifle the activities of prospective purchasers and collectors of child pornography, this may go some distance to smother the market for child pornography altogether. In turn, this would substantially reduce the motivation to produce child pornography in the first place.

To paraphrase, possession of child pornography is illegal because some clinicians believe that some pedophiles use it in ways that might increase the level of child abuse and courts believe that punishment of possessors might shrink the market for child pornography, which might reduce the motivation for producing it. The illegality is not because possessors of child pornography become pedophiles, nor because latent pedophiles become active abusers by virtue of viewing or reading the materials. The possibility that some persons use pornography instead of actual children seems not to have been considered, although denial of pornography to those persons puts children at greater risk. However, regardless of whether there is evidence that child pornography is associated with pedophilia, child pornography is popularly and politically associated with sexual abuse of children, and charges associated with child pornography have sensational public impact. For example, despite sympathetic attempts by the Crown to cast Karla Homolka as a blameless victim of violence, videotapes that showed her engaging in repugnant acts led to considerable public outrage regarding the plea bargain she negotiated with the Crown. The Crown charged Paul Bernardo's former lawyers, who kept those videotapes secret, with obstructing justice, and tagged on additional charges of possession of child pornography and making obscene material [15].

Cyberspace: The Press and the Police

The mere fact that obscene material and child pornography are digitally encoded and stored in a computer poses no problems for the law. However, the easy duplication and anonymous transmission of the material through Cyberspace present both challenges and opportunities for law enforcement. It is easy for the police to find examples of illegal material in Cyberspace and to produce professional quality reproductions of that material to impress judges and the popular press, without the inconvenience of leaving the office.

Just how much legal action is there concerning illicit sexual material in Cyberspace? Charges have been laid in about a dozen cases in Ontario [16], with one conviction of a high-school drop-out [17]. There has also been a conviction in British Columbia [18]. There are a handful of other charges around the country. In short, there is a tiny, but very expensive, amount of legal action concerning obscenity in Cyberspace. However, public fear and awareness are high because these few cases have been widely reported in the press, where possessors of disks whose digital contents can be decoded as obscene pictures are dubbed pedophiles, thereby pushing the political "hot button" of child abuse.

It is easy for newspaper readers to fear the spectre of rampant obscenity in Cyberspace. For example, Heidi Wischiwsky, whose office at a hi-tech firm was searched by police officers, apparently downloaded pictures of children having sex; she was charged with possessing and making child pornography [19]. As a further example, S. Friedman of Halifax, a respected Jewish cleric with a spotless record, left Canada immediately after pleading guilty to a charge of possessing child pornography that he had downloaded from newsgroups. The Crown agreed to drop charges of distribution by computer in return for the guilty plea [20]. He sent 29 offensive photographs by way of the Internet, and was apprehended on the basis of a tip from US authorities to Revenue Canada's border intelligence division [21]. The police had a warrant, which identified log records by their account number and not by person [22], to search Friedman's personal file kept by the Internet provider; however, the provider would willingly have given access to the personal records even without the warrant [23]. The police stressed how easy it is to get pornography from the Internet [24], rather than how easy it is to ignore a person's reasonable expectation of privacy.

Because of social stigmatization, viewers of erotica are easily victimized by scams. For example, a Scarborough website offered nude pictures to users who downloaded a special image viewer. The viewer contained a virus that redirected the calls through Moldavia, with the result that the victim had an unexpectedly high long-distance telephone bill, and was often too embarrassed to complain to the police [25]. As well, software pirates apparently hide bootleg software behind references to illicit pornography [26].

The Samsom Report

Gareth Samsom produced a comprehensive report for Industry Canada examining the prevalence of offensive material in Cyberspace [27]. As a point of reference, Samsom considered the availability of the same types of materials in other media. He noted that, between 1988 and 1993, annual Canadian circulation of Penthouse declined from 6 million copies to less than one million, and circulation of Playboy declined from 3.5 million to about 1.5 million copies. The decline in popularity of the magazines might be because of a shift to videotapes; although few "adult" videos are made in Canada, the sales and rental markets may be increasing. Clearly, Canadian society tolerates a diverse range of pornographic material, for which there is a fairly large market. There is very little original "computer porn", because most of it is scanned from other media. Furthermore, relatively little computer activity has anything to do with sex; of nearly 5,000 newsgroups on USENET, only 17 carried explicitly sexual material, of which about 10-15% may contravene obscenity provisions. Nor does material just pop up to surprise a browser; it takes a special image viewer to convert ASCII GIF files to viewable images.

There has also been much attention to BBSs, which post digitized images that are scanned from other media and uploaded, or are obtained from commercial CD-ROMs. The operator of a BBS (sysop) can purchase a CD-ROM containing thousands of images, only a few of which may be obscene; it is unlikely that a sysop will view all the contents of every CD-ROM made available to members, any more than that a bookstore owner will read all the books in the store; hence one might expect that the "knowingly" standard for sellers of obscene material will apply to sysops. Samsom states "Arguing that the government should shut down adult-oriented bulletin boards just because an eight-year old can use a computer is analogous to saying that the sale of alcohol should be banned because children know how to use bottle-openers." [28]

Despite public fears about child pornography, very little of it enters Canada, very little of it is made here, and it is of very poor quality. Against this backdrop, it is surprising to read headlines about "international child pornography ring operating from computers" when some person is found with offensive materials stored on his or her hard drive.

Cyberspace and The Rest of Space

Cyberspace is by no means the only source of offensive material. For example, B. Wischnewski of Winnipeg was jailed for 90 days for distributing obscene material and possessing child pornography for the purpose of distribution, based on videotapes with sadistic and bestial content [29]. As well, a Brampton man who used a hidden video camera to film children showering in a pool change room was charged with making and possessing child pornography [30]. Is Cyberspace different in some principled way from these other avenues people have found for offending each other?

It may be important to distinguish between one-way communications, such as videotapes, and two-way communications, such as telephones. Internet activity has qualities of both [31]. For example, if the Internet is like a telephone answering machine because interaction with the site makes use of a modem and fibreoptic cables, then "Zundelsite" may offend section 13 of the Canadian Human Rights Act, which prohibits telephonic communication of hate messages [32]. Apparently some investigators are not happy with the prominence and wealth Zundel achieved because of the publicity associated with court actions from the trial level to the Supreme Court, and wish to provide more free advertising to help him expand his position as Canada's most famous provider of hate literature.

Perhaps the popular image of Cyberspace, populated by pirates, hackers and scofflaws, brings a romanticized badlands to the minds of those weaned on images of the wild, wild west. For whatever reason, the few cases that are reported show rather facile reasoning as judges analogize from things they do understand to this strange new world. Perhaps the legal analysis is lean because the police have not yet charged anyone with deep enough pockets to mount a real defence. To date, prosecutors have concentrated on marginalized young people [33], retired people, and "mom-and-pop" basement operations. It is understandable that the prosecution wants a good record of convictions, but their choice of targets is not conducive to developing sophisticated case law.

No reported cases have yet considered what it means to "possess" an end product when what one actually has is digital codes. Basically, electronically encoded information consists of binary digits that can, with appropriate devices and procedures, be converted into human-usable form. But is possessing a disk of digital codes tantamount to possessing any representation that can be generated from the codes? It is interesting to seek other informational forms to serve as analogies that will help answer this question. Two analogies are considered here; videotape and paint-by-numbers [34].

Videotape

A videotape is an electromagnetic recording that can be converted into images and sounds that a human user can process. The information encoded on the tape is readily accessible to any person who inserts the tape into a dedicated device. This metaphor is preferred by those who prosecute persons who possess disks with contents that can be converted into obscene material. Reporters from the Globe & Mail [35] interviewed members of Project P, a branch of the Ontario Provincial Police that tries to locate and eradicate obscene material in Cyberspace. Mainly on the basis of tips [36], they have generated about a dozen charges in Ontario in the last year or so. Because computer disks have little effect in court, Project P has a $17,000 colour laser printer that makes pictures of exceptional quality from the disks after other sophisticated programs have decoded their contents into a form the printer can use. The professional quality of the displays of digital contents is dramatic and helps to manipulate the emotions of triers of fact, although it seems inevitable that a thoughtful defence attorney will note that the representations the police create with their expensive toys are a far cry from what the owners of the disks actually can create themselves.

Paint-by-numbers

A paint-by-numbers set is a "canvas" of areas enclosed by lines, with digital information printed in each area. Suppose a person decodes the information by applying colours as indicated in the program and creates an obscene picture. Is the original digital canvas obscene? If the police hire a talented artist to do a professional job of decoding the canvas as an obscene picture, will the court admit the picture as an accurate depiction of the contents of the canvas? The process of converting the digital canvas to a human-usable form is more similar to the process of converting the digital information on a disk into human-usable form than is the process of converting the electromagnetic data encoded on a videotape into human-usable form by putting the tape into a device and pushing the "play" button. The "paint-by-numbers" analogy makes it clear that there are many effortful, intentional, and difficult stages between data and display, and that all of the stages introduce opportunities for errors and embellishments. Courts should not be too hasty to conclude that the mere presence of files on a disk constitutes possession of obscene matter, any more than having digital canvases constitutes possession of obscene matter, just because a party with a vested interest in finding obscenity has the resources to create obscenity from the raw data encoded in whatever medium.

The remaining sections consider actual prosecutions of persons charged with offences related to obscene materials and child pornography in Cyberspace.

Pecciarich

Joseph Pecciarich [37] was convicted of distributing child pornography, using his personal computer to send text and pictures to BBSs where they could be accessed by other computer users. He was acquitted of distributing obscene pictures because there was no admissible evidence that he had uploaded them. Pecciarich, aged 19 at the time of the offences, had dropped out of school after grade 10, had no previous record, and had not acted out any of the fantasies from the offensive texts. He received a suspended sentence and was placed on probation for two years, under terms that require him to be assessed for psychological problems, to perform 150 hours of community service, and not to upload or download any computer material that is erotic, obscene or pornographic in character [38]. The case is interesting because it was the first Canadian conviction dealing with computer-distributed child pornography.

Pecciarich is also interesting because the Crown sought probation terms that recognized an opinion that the accused was a latent pedophile who might someday become dangerous [39]. The expert's opinion was not based on an assessment of Pecciarich, who refused to be assessed. Are persons who possess child pornography likely to assault actual children? At the trial, Dr. P. Collins expressed the opinion that a "vast majority" of `pedophiles' eventually assault children [40]. There was no Mohan [41] inquiry into the reliability of the opinion, which would require pointing to a body of evidence that objectively validates the opinion. Other experts, such as Dr. R. Langevin, are of the opinion that most sex offenders do not use pornography on a regular basis and that there is no empirical connection between fantasy and pornography on the one hand and offensive sexual behaviour on the other; indeed, some persons use pornography as a surrogate, rather than act out their urges on real children. No evidence was presented to prove that child pornography increases the likelihood that actual pedophiles will abuse children. Furthermore, in the absence of evidence that users of child pornography are, or are likely to become, pedophiles, discussion of pedophiles has no relevance in a trial regarding child pornography, but the very topic is highly prejudicial to the accused person. To some extent all of these arguments are irrelevant, because it is not a crime (yet) to be the type of person who might commit a sexual offence in the future.

In overview, Pecciarich's crime was to distribute offensive pictures and stories by uploading them to several BBSs. The pictures were created from Zellers and Byway ads [42]. At sentencing, the judge acknowledged that no children were used in the production of the pornography, but accepted that mere possession poses a realistic risk of harm to children. Although Pecciarich never harmed any real children at any stage in the process, some experts, like Dr. H. Barbaree, fear that the material has the potential of triggering child sexual abuse [43]. The Crown prosecutor, P. Enright, argued that the catalogue models were real children whose parents would be horrified to learn their children had been used as models for child pornography. Such emotional appeals have no legitimate place in legal debate. As a parent, I would be horrified if a person saw my child in a park and used an image of my child in a masturbatory fantasy at home later on, but my horror is not a sufficient basis for making such activity a crime. Pecciarich did not become a criminal by having fantasies, but rather by fixing those fantasies in a material form and making them available to others.

At trial, the judge concluded that Pecciarich had cut out catalogue pictures, scanned them into the computer, then crudely morphed them by adding genitals. Pecciarich possessed catalogue pictures that looked like the same persons shown in the offensive files, and had a scanner. Pecciarich also had documents by "Recent Zephyr", the alleged author of the offensive materials, who uploaded them to the BBSs.

The police hired computer specialist Ken Blumberg to examine adult BBSs, in search of obscene material and child pornography. He downloaded graphics (GIF) files and text (ZIP) files from the "Gateway," of which the sysop was Michael Keating and the cosysop was "The World Famous Recent Zephyr". Several offensive GIF and ZIP files had been uploaded to the board by Recent Zephyr. The police searched Pecciarich's bedroom and seized catalogue pictures, personal notes and documents. Pecciarich was arrested; en route to the police station an officer asked "Did you leave your name when some programs were uploaded?", to which he answered "Yeah".

The defence admitted the materials included child pornography, although the texts did not "advocate or counsel" anyone to perform illegal acts with children, and the contents of computer disks have not yet been conclusively held to be "representations" for the purposes of criminal law. The task for the Crown was to prove as facts that the offensive files had been uploaded by Recent Zephyr and that Pecciarich used the name Recent Zephyr. Defence counsel argued that all the evidence from which those facts could be inferred was hearsay. The Crown had also to establish that uploading is, as a matter of law, distribution of the offensive material.

The court noted that many of the documents seized by the police included the name Recent Zephyr and that one file included the accused's signature, misspelled as Pecciarch; the court acknowledged that using the signature to indicate that Pecciarich authored the file would violate the hearsay rule, but used it instead as real circumstantial evidence that Recent Zephyr and Pecciarich were the same person. Documents found in the possession of an accused person are admissible as original circumstantial evidence to show (a) his knowledge of their contents, (b) his complicity in transactions to which the documents relate, or (c) his state of mind regarding those transactions. The judge concluded that Pecciarich knew he had these documents, which referred to child pornography and contained the name Recent Zephyr, stored in his computer. Defence counsel argued that the files could have been downloaded by someone else without Pecciarich's knowledge, but the judge dismissed the argument because there was no evidence that Pecciarich had a software configuration that would have allowed the documents to be stored on a backup tape without his approval [44].

Apparently the hearsay rule offers little protection to persons who have documentary files in their computers; although the documents are not used for the proof of their contents, they are potent evidence that is probative of identity, unless the accused person can satisfy the trier of fact that some other person could have put the files there.

Hearsay and Identity

It is arguable that the judge misinterpreted the law of evidence as it pertains to using hearsay to establish identity. Identifying an accused person as a perpetrator requires proving that the accused person is the one who did the prohibited act. It is permissible to reach that inference from circumstantial evidence, but it is not permissible to reach that inference on the basis that the accused is the type of person who would do that type of thing. For that reason, evidence of prior acts by the accused are generally inadmissible because their probative value is establishing that the accused did the deed is slight in relation to their potential for prejudice in inviting an inference on the basis of character. There is, however, an exception if the prior acts are so similar to the act in question that they approach being a calling card. For example, if an unknown perpetrator robbed a store and drew a pink elephant on the floor, evidence that an accused person had a history of drawing pink elephants on the floor after robbing stores would be admissible because it is probative of identity.

The "calling card" theory can be extended to statements. The general hearsay rule is that statements that are overheard are inadmissible as proof of their contents, but they are admissible as proof that the statements were made. For example, a person running from a building could testify that someone had said "Fire"; the fact that someone said "Fire" can explain why the person was running, although the statement cannot be taken as proof that there was a fire.

Suppose an unknown robber said "I need the money because my mother's cat has gout", and, later that evening, somebody overheard Donald say "my mother's cat has gout" at a bar. The statement would be admissible because it is probative of the fact that the known declarant, Donald, is the same person as the unknown robber; it could not be used to determine whether the unfortunate feline did actually suffer from gout. It is important to note that the robber was unknown but the one who uttered the statement was known. The unusualness of the statement implies that the same person uttered the statement on both occasions, from which it follows that Donald committed the robbery. Furthermore, it is that fact that the statement was said, rather than what it said, that was relevant; hearsay is not an issue.

The facts are quite different in Pecciarich. The criminal act consisted of uploading offensive materials by an unknown perpetrator, who used the pseudonym "Recent Zephyr". Documents in Pecciarich's computer also included the pseudonym "Recent Zephyr", from which it is possible to infer that the same person did both entirely on the basis of the similarity of the names. But that similarity does not identify Pecciarich as the person. The judge acknowledged that using "Pecciarch", a misspelled version of Pecciarich that appeared on a document, to conclude that Pecciarich authored the document would violate the hearsay rule. However, without concluding that Pecciarich authored the document, the judge's use of "Pecciarch" to conclude that the same person wrote that document and the ones by "Recent Zephyr" still does not identify Pecciarich as the person without running afoul of the hearsay rule. The judge compounded the error by placing the burden of exculpation on the accused. Once the judge had inferred that he was "Recent Zephyr", it was up to him to explain how the documents could be in his possession, and his failure to convince the judge left him guilty.

Another way to avoid the hearsay rule with documents is to admit them for the proof of their contents if the accused has recognized, adopted or acted upon them. Pecciarich had documents stating their author's intention to upload some of the files that had been uploaded and identified as originating with Recent Zephyr. Defence counsel argued that someone else could have uploaded the files, but the judge concluded that the possibility was remote; "it is not a suggestion genuinely supported by evidence, given the absence of any evidence that the materials created by him were transmitted through a third party". Even so, the judge did refuse to admit, for proof of its contents, the statement "uploaded by Recent Zephyr", with the result that there was no evidence that Pecciarich had uploaded the obscene materials.

It is difficult to disagree with the judge's finding that, on a totality of the evidence, Joseph Pecciarich created offensive materials and uploaded them to BBSs. However, it is easy to imagine cases in which the only evidence against an accused person consists of similarity between offensive materials in Cyberspace and materials produced from digital files in an accused person's computer. One hopes for a more sophisticated consideration of hearsay in such a case.

Distribution?

Is uploading of files onto BBSs distribution? The files, once uploaded, can be accessed by members of the public who have gone through an application process, and Pecciarich intended to have the materials widely dispersed. Hence there was more here than a mere sale, and distribution was proved. Pecciarich was convicted of distributing three files.

Hurtubise

[45] Gerald and Brenda Hurtubise were sysops for a BBS, CYBER Playground, that made available the contents of a CD-ROM to members. Access was restricted by requiring potential members to prove they were of adult age. The CD-ROM contained over 300 graphic files and 800 text files. The police found a few of them to be offensive and, after obtaining a search warrant [46], charged the Hurtubises with possessing obscene material for the purpose of publication, distribution or circulation, and with possessing child pornography for the purpose of publication. The Hurtubises admitted that the material was offensive, but testified that they were not aware of the entire contents of the CD-ROM.

Knowingly

Lack of knowledge is an acceptable excuse for some but not all uses of obscene materials. In brief, the idea is that the makers and distributors can be assumed to know what is in the materials they make or distribute. However, book sellers and proprietors of video stores might reasonably stock some materials and be unaware of their contents. Hence "knowingly" is part of the case the Crown must prove when prosecuting those who sell materials to end users, or expose those materials to public view. Cyberspace, like the local video store and the library, is a potential source of prohibited material. In each case, the material can be found only by those who seek it, and prohibited material is a tiny proportion of what else is there. There is clearly a difference between someone like Pecciarich, who posted materials to several BBSs, and someone who makes a CD-ROM available for one or two users at a time to view.

The "knowingly" component has recently been explained by the Supreme Court of Canada. In R. v. Jorgensen [47], the operator of a video store was charged with possession of obscene materials for the purpose of renting them to the public, although all the videos had been cleared by the Ontario Film Review Board (OFRB). Chief Justice Lamer argued that this was a case for introducing a defence of officially induced error, but the majority of the court held that reliance on the OFRB does not negate mens era for the offence; provincial bodies cannot bind the federal crown, and the purpose of OFRB review is not to classify materials as to their potentially criminal content. However, in the case of a seller or renter, "knowingly" means that the accused person must be aware that a dominant feature of a video is exploitation of sex, and must be aware of the specific acts that make it obscene in law. The accused person need not know that the contents are obscene because ignorance of the law cannot excuse offensive conduct, but the accused person must be aware of the depicted acts if a court deems them to be obscene.

Does a BBS "sell or expose to public view"?

The court noted that having a stag party is not exposing to public view, but that admitting others who pay a fee is. With this BBS, the material was available to any member with a modem, and two modems at a time could access it. The court stated that whether such activity is exposing to public view is a question of fact, then found, to the court's satisfaction, that this material was exposed to public view. No reasons were given, just "I am satisfied". Note that the definition of "exposing to public view" is a legal definition, but the decision of whether the conduct of the accused person fits that legal definition is a question of fact. Appellate courts are usually deferential to findings of fact by trial judges, who can reduce the odds of being overturned by casting their decisions as findings of fact rather than findings of law.

Does a BBS "publish, distribute, or circulate"?

The court noted that distributors of offensive material can be found criminally liable without the necessity of proving that they were aware of the contents of the material in question, whereas with sellers and retailers, such knowledge is an essential element of the charge to be proved by the Crown. If the act amounts to distribution, the accused persons will be held strictly liable, subject only to making out the defence of due diligence. In effect, the law draws a line in the sequence of events between production of the material and its consumption by a user. With print material, it is only the act of selling to the ultimate consumer that requires proof of knowledge. Distribution includes trucking the material to stores and magazine stands, but does not include offering the material for sale to the public by the operators of the stores and the stands. Distributing also includes warehousing and allocating magazines to retail stores. With video movie cassettes, simple distribution by rental to individual users does not make out the offence of "distribution or circulation", unless the business also includes copying or making films on the premises.

How do these prior findings extend to BBSs? Although making CD-ROMs available to one or two users at a time seems obviously analogous to renting or selling to individual users, the court rejected this analogy. The court relied in part on the finding in Pecciarich, but without noting that the material in that case was actually uploaded to several bulletin boards, rather than left sitting in the accused persons' basement. The court opined that drawing a line to make it harder to convict the last person in the chain from production to consumption makes sense for print media, but not for computers, because potentially many people can access the CD-ROM. This reasoning is unconvincing, because potentially many people can rent an offensive video, buy an offensive book or magazine, or borrow an offensive book from the library. In the end, the court was "satisfied" that the alleged conduct fell within the scope of prohibited activity. The reasons rely more on the Oxford Dictionary than on the law, however, and substitute a finding of fact for what should have been a determination of law.

Due Diligence

Given that the Hurtubises distributed the materials, their only defence was due diligence. Did they take reasonable care, or were they negligent? The court found they were careful, but not careful enough. The court failed to mention their letter to the Attorney General, seeking advice about how to proceed within the law, but receiving instead a visit from the police. Again, the holding was based on the judge's subjective "satisfaction".

Appeal

The convictions were upheld on appeal [49], where the court was deferential to the findings of fact by the trial judge. The court agreed that, at law, sellers cannot not be found guilty unless they are aware of the contents of the material that are deemed at law to be obscene, whereas distributors can be found guilty with no awareness, in the absence of due diligence on a balance of probabilities. Although producers and distributors can be presumed to be familiar with the content of the material, it is unreasonable to expect a book seller to have read every book sold. At the appeal, the Hurtubises argued that their actions were analogous to renters of videos. However, the court was unwilling to set aside the trial judge's factual finding that their activity was on the distribution-side of the line drawn by the law, although classifying BBS activity as distribution is clearly a question of law rather than of fact. It is also worrisome that the appeal judge did not strictly construe the criminal statute, but used a purposive analysis to determine if the activities were of the type the statute targets.

Concluding Remarks

It is often said that hard cases make bad law. Cyberspace is indeed in danger of becoming the new badlands, at least as far as the criminal law is concerned. If we accept that our Charter requires that human acts cannot be criminalized unless the acts cause harm, then it should be necessary to offer some proof that even the most politically unpopular acts are associated with harm. Courts should be wary of "deeming" acts to be harmful in pursuit of political objectives. For example, Ontario Attorney General Charles Harnick recently sent a letter to the Justice Minister requesting that the Criminal Code be amended so that the sight of a woman's naked breast can be "deemed" to be harmful [50], to make it easier to achieve criminal convictions of women who choose to bare their breasts in public. Similarly, "deeming" material to be obscene, then concluding that it is harmful because some persons perceive it to be harmful, offers another way to establish political crimes. The old adage "justice must not only be done, it must manifestly and obviously be seen to be done" is in danger of being replaced by a new adage -- "justice must be seen to be done whether it is or not."

The sensationalized nature of press coverage of cases in which persons are found to have obscene materials in their computers, to make such materials available to fellow surfers, or to send such materials directly to others with similar tastes, has created a political climate in which many fear that such materials are rampant in Cyberspace. Furthermore, the press has contributed to public confusion between possession of child pornography and pedophilia, between obscenity and pornography, and between fantasy and reality. Police monitoring of Cyberspace is expensive in terms of staff, equipment, and consultants, and the money might be better spent addressing issues of child abuse and spousal assault rather than finding and printing offensive pictures to impress reporters.

Judges in future cases, if the prosecution elects to charge somebody who can afford to make full answer and defence, will need to read the words in the criminal statutes, will need to grapple with problems in proving identity because of the easy anonymity of Cyberspace, will need to think through the application of hearsay rules to digitized documents, will need to decide how the presence of digital files on a hard drive relates to possession of pictures that can be created if the files are converted appropriately, will need to determine where, as a matter of law, sysops fall on the continuum between producers and sellers of offensive materials, and so on. It is only a matter of time before jurisdictional questions arise, against the lurking danger that offensiveness will be defined by the most restrictive regimes. Although there may not be a need to develop new laws to address offences in Cyberspace, there will be a need to think about how the existing laws apply, and whether some of the laws that now exist have any useful purpose in the new commonwealth. Realistically, can ideas be suppressed in Cyberspace?

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Submitted by:	Ian Maynard Begg, April, 1997
Submitted to:	Donald M. Cameron
	Richard C. Owens