Electronic Frontier Canada's
Legal Resources

• Legislation
• Court Decisions
• Background Documents
• Links to other Canadian Legal Resources

Legislation

Canadian Charter of Rights and Freedoms

The Charter is part of the Canadian Constitution, which makes it the supreme law of Canada. Any law that is inconsistent with the provisions of the Charter is, to the extent of the inconsistency, of no force or effect.

Canadian Bill of Rights

This is the predecessor to the Charter. It is still in effect, but it has no special status that distinguishes it from other laws that might be passed by Parliament. It therefore provides only limited protection for basic rights and freedoms.

Criminal Code of Canada

We have several sections that relate to computers, but our copy of the Code remains quite incomplete.

Canadian Constitutional Documents

Unlike the majority of countries whose basic law derives from one document, Canada's basic law derives not only from a set of documents known as Constitution Acts, but also a set of unwritten laws and conventions. This comprises of all the acts passed since 1867 up to and including 1993. As a result, all constitutional documents during that time period have the force of law. This is analogous to laying a foundation (Constitution Act, 1867) and then building upon it and modifying it as the need arises (the successive acts).

Freedom of Information and Protection of Privacy Legislation

Our collection still just includes Ontario. Please let us know if you have electronic versions of related legislation from elsewhere in Canada.

Human Rights Legislation

Our collection includes the U.N.'s Universal Declaration, as well as the Human Rights Acts for Canada, and Ontario.

Canadian Radio-Television and Telecommunication Commisstion (CRTC) Act

This is the law that established the CRTC and gave it the mandate to regulate broadcasting and telecommunications in Canada.

Broadcasting Act

This is the law under which broadcasting is regulated in Canada. Broadcasting means, ``any transmission of programs, whether or not encrypted, by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus, but does not include any such transmission of programs that is made solely for performance or display in a public place.''

Telecommunications Act

This is the law under which telecommunication is regulated in Canada. Telecommunication means ``the emission, transmission, or reception of intelligence by any wire, cable, radio, optical, or other electromagnetic system, or by any similar technical system.

Copyright Act

This is one of Canada's main intellectual property laws.

Canada Elections Act

This is the act that allows Elections Canada to control political advertising in various media, including the Internet.

Trade-mark Act

The tool with which EFC was able to protect ``The Net''.

Court Decisions

R. v. Downs (unreported), August 29, 1996, Sask Prov Court, Yorkton District

This is a controversial decision in which a man was convicted of mischief in relation to data for deleting computer files. An appeal has been filed.

R. v. Hurtubise (unsucessful appeal of conviction) [1997] B.C.J. No. 40

The judge dismissed an appeal. The accused were convicted, despite not knowing that a very small number of the files stored on a CD-ROM were obscene. The judge agreed that the prosecution didn't have to prove they had any knowledge - they were convicted of a "strict liability offence".

R. v. Hurtubise (unreported), June 28, 1996, BC Prov Court, Surrey, No. XXXX

This is the decision in a case involving a young couple who were running an adult BBS. All charges related to a CD-ROM purchased in Canada at a local store. In this controversial decision, the judge concluded that BBS sysops should are not deserving of the same legal protection as bookstore owners, newspaper retailers, or video rental operators, all of whom, being far removed from the actual production of the material, are not presumed to have detailed knowledge of exactly what they are selling or making available to the public. Instead, the Crown must prove they had knowledge to be found guilty. In this case, however, the judge said BBS sysops are more like distributors where the burden lies with the accused to prove that, despite having taking reasonable and diligent precautions, they still had no knowledge of the illegal material. The judge concluded that even though the accused did not know the illegal material was present on the CD-ROM, it was through their own negligence, and therefore they were guilty.

The judge also makes an inappropriate passing reference to the R. v. Pecciarich case -- failing to make a distinction between making files available on one BBS versus actively disseminating material to numerous separate BBS's.

R. v. Stroempl (unreported), Sep 21, 1995, Ontario Court of Appeal.

This case is now being cited as establishing the precedent that imprisonment is a reasonable sentence for the crime of being found in possession of child pornography.

R. v. Logan (unreported), Dec 15, 1995, BC Prov Court, Port Hardy, No. 9317

This case is somewhat controversial because the judge ordered an absolute discharge after the defendant pleaded guilty to possession of child pornography. The judgement raised questions about the extent to which mere possession of this material causes harm.

R. v. Jorgensen

This decision places a heavier burden on prosecutors to establish that an accused ``knowingly'' distributed obscene material. Where the accused owns a video store, he is not automatically assumed to have specific knowledge of all the videos in his store. This case will likely have some relevance the next time a BBS sysop gets charged because of a nasty file that someone else put on his computer.

Re Paintings, Drawings, and Photographic Slides of Paintings [by Eli Langer]

Artwork alleged to be child pornography were put on trial to determine whether they should be destroyed. In a controversial decision, the provincial court judge decided the child pornography law was constitutional, but the art should not be destroyed. The art was returned to the artist, Eli Langer. This decision may be appealed. Do computer nerds who might create digital images enjoy a lesser kind of freedom of expression than card-carrying artists? According to this decision, and its interpretation of the defence of ``artistic merit'', perhaps so.

R. v. Pecciarich (sentencing) [1995] O.J. No. 2238

This the judge's decision regarding sentencing for Joe Pecciarich (see trial decision below). Despite the Crown's argument in favour of a jail term, the 20-year-old, who plans to attend College to study Art, was placed on probation for 2 years, ordered to perform 150 hours of community service, and ordered to seek psychological treatment. He was also ordered not to communicate with anyone younger than 16 years old. He is allowed to use a computer, modem, and e-mail, but not allowed to download erotic material. Contrary to the Crown's wishes, he was not order to stay away from children's playgrounds.

R. v. Pecciarich (1995) 22 O.R. (3d) p.748-766

This is the first Canadian conviction for distributing child pornography by computer, although that law may be the subject of a Charter challenge. An excellent article, ``Child-less Pornography'', explores the issues involved in this case. An article from Lawyer's Weekly also reviewed this important court decision.

RB v. University of Victoria [1995] B.C.J. No. 558

A computer science student tried unsuccessfully to argue his Charter Rights were infringed by the University. In our copy we have replaced the petitioner's name by his initials, at his request.

Iorfida v. MacIntyre (1994) 21 O.R. (3d) 186

This decision struck down the provisions of s.462.2 that prohibited distribution of ``literature for illicit drug use'' for being an unreasonable infringement on the right to freedom of expression.

R. v. Hawkins (1993) 15 O.R. (3d) 549

This is a significant post-Butler decision that deals with obscenity. Did you know that depictions of vampirism in a sexual context are illegal in Canada?

R. v. Plant, [1993] 3 S.C.R. 281

A warrantless search of computerized electrical utility records was found not to be a violation of s.8 of the Charter, which guarantees freedom from unreasonable search and seizures.

R. v. Jonnason (T.), (1993) Manitoba Reports (2d)

A search warrant was quashed because there was no description of the contents of the material on which the magistrate could make a determination as to whether the material to be seized was obscene.

R. v. Laliberté [1992] O.J. No. 1346

A young Windsor man was acquitted of obscenity charges related to line drawings he published in a ``Fanzine''.

R. v. Butler [1992] 1 S.C.R. 452

This is the most significant Supreme Court decision relating obscenity.

R. v. Coles [1965] 1 O.R. 557

The book, ``Fanny Hill -- Memoirs of a Woman of Pleasure'', written by John Cleland, was initially found to be obscene, but this decision was later overturned on appeal based in part on the the defence of artistic or literary purpose.

Background Documents

Memorandum of Argument for a Charter Challenge for electronic surveillance of BBS's

Canada's biggest BBS crackdown took place on April 12, 1995, when about 75 RCMP officers raided a dozen locations in Montréal. Various people were charged with software piracy (section 42 of the Copyright Act) Since then, the cases have been slowing winding their way through the judicial system. On February 15th, 1996, the lawyer for one of the accused argued before a Québec court judge that some of the evidence should be excluded on the basis that it was improperly collected. More specifically, it was argued that electronic surveillance of computer BBS's without court authorization was contrary to section 8 of the Canadian Charter of Rights and Freedoms. The judge's decision isn't expected until May, 1996. All other cases have been postponed until then. Both sides have already stated they plan to appeal the decision to a higher court if necessary. (See also, Le Devoir, 16feb96)

Police Chiefs recommend Internet regulation (24aug95)

At a recent meeting, Canada's Police Chiefs resolved that the Internet should be regulated to limit the distribution of offensive and violent material. The also recommended new legislation that would prohibit exclusionary technology (i.e., strong encryption) that could inhibit law enforcement's capabilities to conduct court-authorized electronic surveillance.

Memorandum of Argument for a possible Charter Challenge to s.163.1 of the Criminal Code

Even through all charges were dropped against Toronto artist Eli Langer, his lawyers are attempting to challenge the law under which he was charged in the Supreme Court of Canada.

Illegal and Offensive Content on the Information Highway

Industry Canada's well-researched background paper on the issues relating to controversial content on the 'Net.

Links to other Canadian Legal Resources

Coming soon, ...