Supreme Court of Canada Grapples with Criminal Counselling Provisions in the Age of the Internet

In a decision released on July 29, Her Majesty The Queen v Hamilton, the Supreme Court of Canada wrestled with the degree of intention required to convict a person of counselling others over the Internet to commit credit card fraud. The accused, René Hamilton, had offered by e-mail to several hundred addressees and sold to at least 20 of them information which related to the generation of credit card numbers. Apparently Hamilton himself did not use any credit card numbers he had generated and no complaints were received by the relevant bank regarding any improper use of them. Hamilton was charged under the Criminal Code with the offence of counselling others to commit fraud (specifically, the variant of the offence in the Criminal Code that specifies that the offence being counselled was not in fact committed). Initially, Hamilton was acquitted for not having had the requisite intent to commit the counselling offence and this decision was upheld by the Alberta Court of Appeal. On a further appeal to the Supreme Court of Canada by the Crown, by a majority of 6-3 the appeal was allowed and a new trial ordered on the count of counselling fraud. Although much of the reasons for judgment of both the majority and minority are concerned with narrow principles of criminal law counselling and intention, both judgments take note of the impact of the Internet on principles of law developed long before the advent of electronic communications. The majority noted that: "Courts cannot contain the inherent dangers of cyberspace crime by expanding or transforming offences, such as counselling, that were conceived to meet a different and unrelated need". Although the minority would have decided the case otherwise, it too noted: "While the Internet poses particular risks because of the ease with which mass communications may be disseminated worldwide, the remedy does not lie in an expansive interpretation of the offence of counselling." For an article in The Globe and Mail on the decision, see: http://makeashorterlink.com/?O36D32A8B For the full text of the Supreme Court of Canada decision, visit: http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2005scc047.wpd.html Summary by: The Editor