Canada's Top Court Quashes Child Porn Warrant 363
m.ducharme writes "The CBC is reporting that the Supreme Court of Canada has handed down a decision quashing a search warrant used to obtain the computer of a man accused of possession of child porn. 'Urbain P. Morelli maintained his charter rights were violated when police searched his computer for child pornography after a technician who had visited his home to work on the machine expressed concerns to police.' What the Slashdot community may find notable about this decision is the distinction drawn between 'accessing' and 'possessing' digital images, most particularly the recognition that a user does not 'possess' cached data. From the decision: '[35] When accessing Web pages, most Internet browsers will store on the computer's own hard drive a temporary copy of all or most of the files that comprise the Web page. This is typically known as a "caching function" and the location of the temporary, automatic copies is known as the "cache." While the configuration of the caching function varies and can be modified by the user, cached files typically include images and are generally discarded automatically after a certain number of days, or after the cache grows to a certain size. [36] On my view of possession, the automatic caching of a file to the hard drive does not, without more, constitute possession. While the cached file might be in a "place" over which the computer user has control, in order to establish possession, it is necessary to satisfy mens rea or fault requirements as well. Thus, it must be shown that the file was knowingly stored and retained through the cache.'"
Re:This makes sense. (Score:3, Informative)
I've had objectionable stuff pop up through ad-blockers before when randomly surfing as well that I'd like to report (not even sure if it was legit or not, closed windows fast) ... but haven't, for that very fear. Sad, but what can you do? I'm certainly not going to incur thousands of dollars of legal fees to try to figure out the "right" way to report something that would probably either be ignored, on a jurisdiction that the police are unable to do anything about, or might get me accused of a felony. If it turns out its even illegal.
Re:court intelligence (Score:4, Informative)
If he formatted his drives then there was no evidence, a technicians testimony is hearsay not evidence.
A technician can always testify in court to what he saw on the hard drive as a witness, and that would not be hearsay. Hearsay would be a policeman testifying in court "the technician told me..." or the technician testifying "the customer told me..."
Re:This is total horseshit (Score:5, Informative)
Maybe he didn't. A number of browsers nowadays have a prefetch feature: they'll follow any links on a page and fetch the pages those links point to, to help speed things up when (or if) the user clicks on those links. That results in data in the cache for pages the user never visited.
Re:Okay... (Score:5, Informative)
- possess any child pornography (section 163.1(4))
- make, print, publish or possess for the purpose of publication any child pornography (section 163.1(2))
- import, distribute, sell or possess for the purpose of distribution of sale any child pornography (section 163.1(3))
Everything was clearly stated year before this case. I would hardly call that a technicality.
Re:Is this kind of browsing routine? (Score:3, Informative)
Doug Stanhope on MySpace pedophiles (Score:4, Informative)
http://www.youtube.com/watch?v=8APlx9btTn8 [youtube.com]
"Child Pornography is the only crime that is illegal to look at"
"If you are a parent, you probably don't want to hear this but [...] statistically, no one wants to fuck your kid. Now or ever! [...]. You want to think your kid is the reason all those pedophiles are there waiting in position [...] if you wanted your kid to get fucked just to prove how ultrafuckable that kid is you probably couldn't make it happen. If you put him up as bait dressed in a catholic school skirt jumping on a pogo stick with no underwear [...] he would still probably graduate a virgin, and you would look like an asshole."
Best. Comedy. Ever (The great 4: Lenny Bruce, George Carlin, Bill Hicks, Doug Stanhope)
Re:court intelligence (Score:5, Informative)
Which is particularly sad as many actual pedophiles fail at the first one.
Re:Okay... (Score:3, Informative)
Mens rea = Guilty mind. Meaning you intended to commit the act, thought it through and did it.
Actus reus = Guilty act. The objective action, i.e. downloading something/driving through people/etc.
In Canada, for most criminal offences you need both to be proven in order to have the proof that the crime was committed. There's some exceptions to this but without spending a few weeks explaining it there's no point. Having only one but not the other leads to other legal avenues. In this case(without reading the entire SCC judgment, mine is still in the mail unfortunately), it sounds like the crown couldn't prove by the existence of cached data that the individual had the mental intent(mens rae) to commit the crime. However, a crime was committed(the action).
That's the extremely short version of it.
The entire judgment can be read here: http://scc.lexum.umontreal.ca/en/2010/2010scc8/2010scc8.html [umontreal.ca]
Wrong. (Score:3, Informative)
Accessing CP is a crime in Canada. It's even in the next subsection Criminal Code (163.1(4.1))!
Accessing child pornography
(4.1) Every person who accesses any child pornography is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of forty-five days; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of fourteen days.
http://laws.justice.gc.ca/eng/C-46/page-4.html#codese:163_1-ss:_4_1_ [justice.gc.ca]