SUPREME
COURT OF CANADA
Between:
Her
Majesty The Queen
Appellant
v.
René
Luther Hamilton
Respondent
‑ and ‑
Attorney
General of Ontario and
Canadian
Civil Liberties Association
Interveners
Coram:
McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella
and Charron JJ.
Reasons for
Judgment:
(paras. 1 to 46)
Dissenting
Reasons:
(paras. 47 to 87)
|
Fish J. (McLachlin C.J. and Bastarache, Binnie, LeBel and
Deschamps JJ. concurring)
Charron J. (Major and Abella
JJ. concurring)
|
______________________________
R. v.
Hamilton, [2005] 2 S.C.R. 432, 2005 SCC 47
Her Majesty
The Queen Appellant
v.
René Luther Hamilton Respondent
and
Attorney
General of Ontario and
Canadian
Civil Liberties Association Interveners
Indexed
as: R. v. Hamilton
Neutral
citation: 2005 SCC 47.
File
No.: 30021.
2005: January 14;
2005: July 29.
Present: McLachlin
C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron
JJ.
on appeal from
the court of appeal for alberta
Criminal law — Counselling offence that is not committed —
Elements of offence — Mens rea — Accused sending “teaser” e‑mail on
Internet marketing sale of “Top Secret” files — Teaser advertising software
that would enable purchaser to generate valid credit card numbers — Files sold
including instructions on how to make bombs and how to break into a house —
Accused charged with counselling four offences that were not committed —
Whether accused had requisite mens rea for offences charged — Criminal Code,
R.S.C. 1985, c. C‑46, s. 464 .
The accused sent “teaser” e‑mails on the Internet to more than
300 people, marketing the sale of “Top Secret” files he himself had
purchased off a website. The teaser advertised software that would enable the
purchaser to generate “valid” credit card numbers. The accused made at least
20 sales and the files that were sold, although not the teaser, also
included instructions on how to make bombs and how to break into a house. A
document describing a credit card number generator that was not part of the
files was discovered on the accused’s computer. As well, a handwritten list of
Visa numbers was seized in his possession. No complaints were received by the
bank regarding their improper use. The accused was charged under s. 464
of the Criminal Code with counselling four indictable offences that were
not committed, including fraud. The accused testified that he had seen a
computer‑generated list of the contents of the files but that he had not
read the files. The trial judge accepted the accused’s evidence in this regard
and also accepted his evidence that he had not used the credit card numbers he
had generated. She acquitted the accused, concluding that the actus reus
of the offence had been proven in respect of each of the counts but not the mens
rea. The Court of Appeal upheld the acquittal. The Crown appealed to this
Court on the issue of mens rea.
Held (Major, Abella and Charron
JJ. dissenting): The appeal should be allowed on the count of
counselling fraud.
Per McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps and
Fish JJ.: The concern in this case is with the imposition of criminal
liability on those who counsel others to commit crimes. The actus reus
for counselling is the deliberate encouragement or active inducement of the
commission of a criminal offence. The mens rea consists of nothing less
than an accompanying intent or conscious disregard of the substantial and
unjustified risk inherent in the counselling: that is, it must be shown that
the accused either intended that the offence counselled be committed, or
knowingly counselled the commission of the offence while aware of the
unjustified risk that the offence counselled was in fact likely to be committed
as a result of the accused’s conduct. 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. [21]
[29] [31]
The trial judge acquitted the accused on the count of counselling fraud
because his motivation was mercenary as opposed to malevolent. The trial
judge’s conclusion that the accused did not intend to induce the recipients to
use those numbers is incompatible with the plain meaning of the “teaser” e‑mail
and with her other findings of fact, including her finding that the accused
understood that the use of the generated numbers was illegal. Her assertion
that “[h]is motivation was monetary” immediately after her reference to these
facts demonstrates an error of law as to the mens rea for counselling
the commission of a crime, and warrants a new trial. The trial judge
confounded “motive” and “intent”. [40] [45]
Per Major, Abella and Charron JJ. (dissenting): In
interpreting a Criminal Code provision, it is important not to overreach
the purpose of the criminal sanction at the expense of other important social
values. This is particularly so in a case such as this one where the conduct
in question consists of communications. The actus reus under
s. 464 of the Criminal Code consists of “counsel[ling] another
person to commit an indictable offence”. In order for the actus reus to
be proven, the words communicated by the accused, viewed objectively, must be
seen as actively inducing, procuring or encouraging the commission of an
offence. However, it is well established that it is not necessary that the
person counselled be in fact persuaded. The mens rea of the offence is
largely inferred from the actus reus itself. It is not sufficient that
the communication simply raise the possibility of affecting its recipient. At
the very least, the counsellor must subjectively intend to persuade the person
counselled to commit the offence. Mere recklessness as to the counselled
person’s reaction to the communication is insufficient. Except in the most unusual
circumstances, the counsellor who intends to persuade the person counselled to
commit an offence will intend that the offence be committed. This restricted
interpretation of the actus reus and mens rea of the offence of
counselling ensures that the scope of the offence remains within the
justifiable limits of the criminal law and protects freedom of expression by
limiting the potential overbreadth of a criminal sanction whose sole target is
speech. 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. [66‑67]
[72] [76‑77] [81]
There is no reason to interfere with the trial judge’s conclusion that
the accused did not have the necessary mens rea. Her consideration of
the accused’s motivation must be examined in the context of the evidence before
her, and her reasons must be read as a whole. Here, the Court of Appeal
correctly concluded that the trial judge had considered motive as part of her
findings of fact, but that her decision on the issue of mens rea was
based on other facts relating to the accused’s knowledge. It was on the basis
of these other facts that the trial judge found the accused lacked sufficient
knowledge of the consequences of his actions to satisfy the mens rea
requirement. [84] [86]
Cases Cited
By Fish J.
Discussed: R. v. Janeteas (2003),
172 C.C.C. (3d) 97; R. v. Sansregret, [1985]
1 S.C.R. 570; referred to: Brousseau v. The King
(1917), 56 S.C.R. 22; R. v. Sharpe, [2001]
1 S.C.R. 45, 2001 SCC 2; R. v. Gonzague (1983),
4 C.C.C. (3d) 505; Leary v. The Queen, [1978]
1 S.C.R. 29; R. v. Dionne (1987), 79 N.B.R.
(2d) 297; Lewis v. The Queen, [1979] 2 S.C.R. 821; United
States of America v. Dynar, [1997] 2 S.C.R. 462; R. v. Hibbert,
[1995] 2 S.C.R. 973.
By
Charron J. (dissenting)
R. v. Dionne (1987), 79 N.B.R. (2d) 297; R. v.
Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; R. v.
Keegstra, [1990] 3 S.C.R. 697; R. v. Walia (No. 1) (1975),
9 C.R. (3d) 293; R. v. Glubisz (1979), 47 C.C.C.
(2d) 232; R. v. Gonzague (1983), 4 C.C.C. (3d) 505; R.
v. Janeteas (2003), 172 C.C.C. (3d) 97.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1985, c. C‑46,
ss. 21(1) , 22 , 81(1) (a), (d), 348(1) (d), 380(1) (b),
463 , 464 .
Authors Cited
Alexander, Larry, and
Kimberly D. Kessler. “Mens Rea and Inchoate Crimes” (1997), 87 J.
Crim. L. & Criminology 1138.
Ashworth, Andrew. Principles of Criminal Law,
4th ed. Oxford: Oxford University Press, 2003.
Black’s Law Dictionary, 8th ed.
St. Paul, Minn.: Thomson/West, 2004, “inchoate crime”.
Canada. Law Reform Commission. Working
Paper 45. Secondary Liability: Participation in Crime and
Inchoate Offences. Ottawa: The Commission, 1985.
Canadian Oxford Dictionary, 2nd ed.
Edited by Katherine Barber. Toronto: Oxford University Press, 2004,
“counsel”, “incite”, “procure”, “solicit”.
Colvin, Eric. Principles of Criminal Law,
2nd ed. Scarborough, Ont.: Thomson Professional Publishing Canada,
1991.
Dressler, Joshua. Understanding Criminal Law,
3rd ed. New York: Lexis, 2001.
Friedland, Martin Lawrence, and Kent Roach. Criminal
Law and Procedure: Cases and Materials, 8th ed. Toronto:
Emond Montgomery, 1997.
LaFave, Wayne R. Substantive Criminal Law,
2nd ed., vol. 2. St. Paul, Minn.: Thomson/West,
2003.
Roach, Kent. Criminal Law, 3rd ed.
Toronto: Irwin Law, 2004.
Smith, John. Smith & Hogan Criminal Law,
9th ed. London: Butterworths, 1999.
Stuart, Don. Canadian Criminal
Law: A Treatise, 4th ed. Scarborough,
Ont.: Carswell, 2001.
Williams, Glanville. Textbook of Criminal Law,
2nd ed. London: Stevens, 1983.
APPEAL from a judgment of the Alberta Court of Appeal (Conrad, Hunt and
Park JJ.A.) (2003), 25 Alta. L.R. (4th) 1,
330 A.R. 328, 299 W.A.C. 328, 178 C.C.C.
(3d) 434, 18 C.R. (6th) 337, [2004] 7 W.W.R. 388,
[2003] A.J. No. 1080 (QL), 2003 ABCA 255, affirming a judgment
of Smith J. (2002), 3 Alta. L.R. (4th) 147,
309 A.R. 305, [2002] 8 W.W.R. 334, [2002] A.J. No. 30
(QL), 2002 ABQB 15, acquitting the accused of counselling four
indictable offences that were not committed. Appeal allowed in part, Major,
Abella and Charron JJ. dissenting.
James C. Robb, Q.C., and Steven M. Bilodeau,
for the appellant.
F. Kirk MacDonald, for the respondent.
Christopher Webb, for the intervener the Attorney General
of Ontario.
Andrew K. Lokan, for the intervener the Canadian Civil
Liberties Association.
The judgment of McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps
and Fish JJ. was delivered by
Fish J. —
I
1
The respondent, Ren_
Luther Hamilton, offered for sale through the Internet access to a “credit card
number generator” — in terms that extolled its use for fraudulent purposes. As
part of the same package of “Top Secret” files, he also
offered for sale bomb “recipes” and information on how to commit burglaries.
2
Mr. Hamilton was charged under s. 464 (a) of the Criminal Code,
R.S.C. 1985, c. C-46 , in four separate counts, with counselling the commission
of indictable offences that were not in fact committed.
3
The trial judge was not satisfied that Mr. Hamilton had acted with the
requisite mens rea, or culpable intent, and she therefore acquitted him
on all four counts: (2002), 3 Alta. L.R. (4th) 147, 2002 ABQB 15. The Court of
Appeal for Alberta dismissed the Crown’s appeal: (2003), 25 Alta. L.R. (4th) 1,
2003 ABCA 255.
4
The Crown now appeals to this Court on the ground that the trial judge
erred as to the mens rea of counselling. In the Crown’s view, it is
unnecessary to prove that the person who counselled the offence intended that
it be committed; recklessness is sufficient.
5
The Crown contends that even if recklessness is insufficient, the trial
judge erred in confounding “motive” and “intent”. With respect, I agree that
the trial judge erred in this regard and that her verdict, but for this error,
might very well have been different, at least on the count for counselling
fraud. She acquitted Mr. Hamilton of that offence because, in her own words,
“[h]is motivation was monetary” (para. 53 (emphasis added)).
6
I would therefore allow the Crown’s appeal, order a new trial on the
count for counselling fraud and dismiss the appeal with respect to the three
remaining counts.
II
7
Mr. Hamilton was charged under s. 464 of the Criminal Code with
counselling four indictable offences that were not committed: making explosive
substances with intent; doing anything with intent to cause an explosion; break
and enter with intent; and fraud.
8
The charges resulted from an advertisement, or “teaser”, sent by Mr.
Hamilton through the Internet to more than 300 people whose addresses he had
acquired from published lists. His advertisement read, in part:
HAVE YOU EVER HEARD OF A SOFTWARE PROGRAM THAT CAN PRODUCE AND DISPLAY
VALID WORKING CREDIT CARD NUMBERS AT THE TOUCH OF A KEY!!!!
WELL IT’S ARRIVED . . . . . THE TIME IS NOW!!
THE AUTOMATIC CREDIT CARD NUMBER GENERATOR!!!!!!!!!
.
. .
ALL VALID AND FULLY FUNCTIONAL!!
.
. .
*YOU CAN ALSO Extrapolate NEW CREDIT CARD NUMBERS OFF OF YOUR EXISTING
ALREADY VALID REAL CREDIT CARDS!!!! 100% valid numbers!
SIMPLE TO USE??? - - - - ABSOLUTELY!!
.
. .
*IMAGINE THE THINGS THAT YOU COULD DO WITH THIS PROGRAM, AND THE
VALID CREDIT CARD NUMBERS IT GENERATES!!
THE POSSIBILITIES ARE ENDLESS!!! . . . .
.
. .
ALSO AVAILABLE IS THE OVERSEA’S AT&T CALLING CARD NUMBER
GENERATOR!!!!!
FREE LONG DISTANCE??? YUPPERS! YES INDEED, ABSOLUTELY!!!!!
*THIS SIMPLE EASY TO USE PROGRAM PRODUCES VALID OVERSEA’S AT&T
CALLING CARD NUMBERS. . WITH ONE STROKE OF THE KEY!!! . . . .
.
. .
*GET ANY CREDIT CARD YOU WANT
.
. .
ALL OF THESE METHODS HAVE BEEN PROVEN TO WORK OVER AND OVER, TIME
AND TIME AGAIN!! THESE ARE THE SECRETS THAT MILLIONAIRES AND GOVERNMENT
INSIDERS ONLY TELL THEIR FRIENDS ABOUT!!
Don’t delay . . . This Extraordinary and Valuable Information
including the Card Generator Programs can be yours Today for ONLY $50 (US
FUNDS).
.
. .
IF YOU DOWNLOAD THE PROGRAMS AND USE THEM . . . WE ACCEPT NO
LIABILITY FOR YOUR ACTIONS!
DON’T MISS OUT ON THIS CHANCE TO GET YOUR HANDS ON THESE TWO AMAZING
PROGRAMS, THAT WILL FOREVER CHANGE YOUR LIFE . . . ! IF YOU MISS THE CHANCE
NOW, IT MIGHT NOT COME AROUND AGAIN . . . . AS THESE SOFTWARE PROGRAMS ARE NOT
SOLD IN RETAIL STORES, FOR OBVIOUS REASONS!!
.
. .
Looking forward to seeing you well on your way to a wealthy
lifestyle!! [Emphasis added.]
9
Mr. Hamilton also created a web site advertising the Top Secret files,
and was shown to have made at least 20 sales.
10
The trial judge found that Mr. Hamilton had seen a computer-generated
list of the contents of the Top Secret files. They contained document
descriptions such as “bombs.txt”, “bombs2.txt”, “bombs3.txt”, “How to Break
into a House.txt”, and “visa hacking.txt”. Mr. Hamilton testified that he had
not read these files, and the trial judge, without making an express finding,
appears to have accepted his evidence in this regard. The Top Secret files
were organized into two zip files, which consisted of roughly 2000 pages of
text. Only 13 pages related to the counselling charges that concern us here.
11
A document describing a credit card number generator that was not part
of the Top Secret files was also discovered on Mr. Hamilton’s computer. As
well, a handwritten list of Visa numbers was seized in his possession. Of the
listed numbers, all but one were found by the judge to be “valid” (para. 15),
in the sense of “usable”. But no complaints were received by the bank
regarding their improper use. The trial judge accepted Mr. Hamilton’s evidence
that he did not use the credit card numbers he had generated.
12
The trial judge acquitted Mr. Hamilton on all counts and the Court of
Appeal affirmed the acquittals.
III
13
The Crown contends that recklessness satisfies the fault requirement of
counselling and that, even if intent (as opposed to recklessness) must be
proved, the trial judge erred in grafting onto the required element of
intention an additional requirement of motive.
14
At common law, counselling or procuring a felony was a substantive
offence, whether or not the felony was subsequently committed: Brousseau v.
The King (1917), 56 S.C.R. 22. The charges that concern us here are now
codified in s. 464 (a) of the Criminal Code , which provides:
464. . . .
(a) every one who counsels another person to commit an
indictable offence is, if the offence is not committed, guilty of an indictable
offence and liable to the same punishment to which a person who attempts to
commit that offence is liable;
15
The actus reus for counselling will be established where the
materials or statements made or transmitted by the accused actively induce
or advocate — and do not merely describe — the commission of an
offence: R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 57, per
McLachlin C.J.
16
The mens rea, or fault element, for counselling was recently
considered in R. v. Janeteas (2003), 172 C.C.C. (3d) 97 (Ont. C.A.),
which involved an appeal by the accused against his conviction on one count of
counselling murder and two counts of counselling unlawful bodily harm. The
trial judge had instructed the jury that they could convict the accused of
these offences only if they were satisfied beyond a reasonable doubt that he
had counselled their commission “with the intent that his advice or counselling
. . . be accepted” (para. 14 (emphasis added)).
17
The Ontario Court of Appeal found this instruction to be inadequate. In
the court’s view, it was not enough for the jury to conclude that the accused
intended that his counselling of the offences “be accepted” or “be taken
seriously” by the persons counselled to commit them; the accused must have
intended as well that the offence counselled be in fact committed (para.
46).
18
In the present case, the trial judge described counselling as a “dual mens
rea offence” (para. 37) and the Court of Appeal in Janeteas cited
this characterization of the requisite mental element in its reasons (para.
19).
19
Janeteas was decided on an unusual set of facts and in light of
concessions by Crown counsel as to the inadequacy of the trial judge’s
instructions to the jury. Moreover, authorities cited by the Court of Appeal —
none of them binding on this Court — do support the proposition that
counselling is a “dual intent” offence. But the Court of Appeal in Janeteas
did take care to say that it would have reached the same result even if it were
found sufficient for conviction that the accused, in counselling the commission
of the offences, was reckless as to the consequences.
20
In my respectful view, a judicial determination of the fault element for
counselling should not be made to depend on whether the required mens rea
is characterized as “dual”. I find it preferable to begin instead by
considering why the counselling of crime is prohibited and then to examine the
ordinary meaning of the words used by Parliament to achieve its purpose.
21
Our concern here is with the imposition of criminal liability on those
who counsel others to commit crimes. In this context, “counsel” includes
“procure, solicit or incite”: see s. 22(3) of the Criminal Code .
22
In their relevant senses, the Canadian Oxford Dictionary (2nd ed.
2004) defines “counsel” as “advise” or “recommend (a course of action)”;
“procure” as “bring about”; “solicit” as “ask repeatedly or earnestly for or
seek or invite”, or “make a request or petition to (a person)”; and “incite” as
“urge”. “Procure” has been held judicially to include “instigate” and
“persuade”: R. v. Gonzague (1983), 4 C.C.C. (3d) 505 (Ont. C.A.).
23
Those who encourage the commission of crimes in any of these ways are
criminally responsible for their conduct by way of “secondary liability”.
24
The rationale underlying secondary liability was described by the Law
Reform Commission of Canada as “straightforward, obvious and justifiable” — in
principle, though not always in practice: Working Paper 45, Secondary
Liability: Participation in Crime and Inchoate Offences (1985), at p. 5.
25
According to the Commission (at pp. 5-6):
. . . the rationale for secondary liability is the same as that for
primary liability. Primary liability attaches to the commission of acts which
are outlawed as being harmful, as infringing important human interests and as
violating basic social values. Secondary liability attaches on the same ground
to their attempted commission, to counselling their commission and to assisting
their commission.
This is clear with participation. If the primary
act (for example, killing) is harmful, then doing it becomes objectionable. But
if doing it is objectionable, it is also objectionable to get another person to
do it, or help him do it. For while killing is objectionable because it causes
actual harm (namely, death), so too inducing and assisting killing are
objectionable because of the potential harm: they increase the likelihood of
death occurring.
The same arguments hold for inchoate crimes.
Again, if the primary act (for example, killing), is harmful, society will want
people not to do it. Equally, it will not want them even to try to do it, or
to counsel or incite others to do it. For while the act itself causes
actual harm, attempting to do it, or counselling, inciting or procuring someone
else to do it, are sources of potential harm — they increase the likelihood of
that particular harm’s occurrence. Accordingly, society is justified in
taking certain measures in respect of them: outlawing them with sanctions, and
authorizing intervention to prevent the harm from materializing. [Emphasis
added.]
26
These passages, in my view, aptly explain why Parliament has imposed
criminal responsibility on those who counsel, procure, solicit or incite others
to commit crimes, whether or not the crimes are in fact committed.
27
And it seems to me that the plain meaning of the terms used by
Parliament to achieve this purpose point to a fault element that combines
advertent conduct with a “conscious disregard of unjustified (and
substantial) risk” that it entails: L. Alexander and K. D. Kessler, “Mens Rea
and Inchoate Crimes” (1997), 87 J. Crim. L. & Criminology 1138, at
p. 1175 (emphasis in original).
28
The “substantial and unjustified risk” standard of recklessness has
venerable roots in Canada and in other common law jurisdictions as well: see,
for example, Leary v. The Queen, [1978] 1 S.C.R. 29, at p. 35 (Dickson
J., as he then was, dissenting on other grounds); and, generally, M. L.
Friedland and K. Roach, Criminal Law and Procedure: Cases and Materials (8th
ed. 1997), at pp. 508 ff., where Herbert Wechsler explains, at pp. 510-11, why
the American Law Institute required in its Model Penal Code that the
risk consciously disregarded be both “substantial” and “unjustifiable”.
29
In short, the actus reus for counselling is the deliberate
encouragement or active inducement of the commission of a criminal offence.
And the mens rea consists in nothing less than an accompanying intent
or conscious disregard of the substantial and unjustified risk inherent in
the counselling: that is, it must be shown that the accused either intended
that the offence counselled be committed, or knowingly counselled the
commission of the offence while aware of the unjustified risk that the offence
counselled was in fact likely to be committed as a result of the accused’s
conduct.
30
I would resist any temptation to depart in this case from that
relatively demanding standard. The Internet provides fertile ground for sowing
the seeds of unlawful conduct on a borderless scale. And, at the hearing of
the appeal, Crown counsel expressed with eloquence and conviction the urgent
need for an appropriate prophylactic response.
31
In my view, however, this task must be left to Parliament. Even if they
were minded to do so, 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. Any attempt to do so may
well do more harm than good, inadvertently catching morally innocent conduct
and unduly limiting harmless access to information.
32
Finally, a brief word on R. v. Sansregret, [1985] 1 S.C.R. 570.
The Court in that case defined recklessness as the conduct of “one who, aware
that there is danger that his conduct could bring about the result prohibited
by the criminal law, nevertheless persists, despite the risk. . . . in other
words, the conduct of one who sees the risk and who takes the chance” (p.
582). The Court, in Sansregret, did not set out the degree of risk
required to attract criminal sanction. As Don Stuart points out, courts have
arbitrarily endorsed varying standards: “uncertainty, probability, likelihood
[and] possibility” – and, in some instances, “probability” and “possibility” in
the very same case (Canadian Criminal Law: A Treatise (4th ed. 2001), at
pp. 225-26).
33
We have not been invited in this case to revisit Sansregret or to
consider afresh the governing principles of recklessness as a fault element
under the criminal law of Canada. And I should not be taken to have done so.
IV
34
In determining that the actus reus of counselling was made out,
the trial judge stated:
In my view the teaser, viewed objectively, actively
promotes the use of the credit card generator. The legal disclaimers do not
discourage use. Rather they serve as a message that the use of the numbers
generated is illegal, and attempt to limit liability, which furthers rather
than limits the message which is to use the numbers in a cautious fashion.
The Top Secret files sent out by Mr. Hamilton which
relate to the charges amount to “How To” guides. The bomb documents contain
recipes for bombs together with instructions for assembly and then instructions
on how to detonate the bomb. “How to Break into a House” gives instructions in
a step by step fashion for a style of break in and theft. The [Visa] hacker,
or credit card number generator, is similar. [paras. 20‑21]
35
The trial judge appears to have accepted Mr. Hamilton’s evidence that he
did not read the files relating to bombs and to burglaries and found as a fact
that he had no intention to induce the recipients of his “teaser” to either
build bombs or commit burglaries. This finding of fact was not reviewable in
the Court of Appeal and is not subject to review in this Court, since the
Crown’s right of appeal is limited in both instances to questions of law alone.
36
Mr. Hamilton’s acquittal on the count for counselling fraud does not
stand on the same footing.
37
At least as regards the credit card number generator, the trial judge
concluded that the documents offered for sale — and sold — by Mr. Hamilton
“actively promote or encourage the actions described in them” (para. 22).
Applying the test set out in R. v. Dionne (1987), 79 N.B.R. (2d) 297
(C.A.), she found that the documents “are likely to incite and are ‘with a view
to’ inciting the offence” (para. 22).
38
Nothing in the evidence suggests that Mr. Hamilton intended these
documents to be read in a different manner or that they be used for a different
purpose. Moreover, the trial judge expressly found that Mr. Hamilton had
“subjective knowledge that the use of false credit card numbers is illegal”
(para. 53).
39
The trial judge nonetheless acquitted Mr. Hamilton on the charge of
counselling fraud because she had “a doubt that Mr. Hamilton had subjective
intent to counsel fraud” (para. 53). And she explained her conclusion this
way:
His motivation was monetary, and he sought to pique the
curiosity of readers who might acquire the information in the same way that he
was initially attracted to the information. Further, he struck me as utterly
unsophisticated and naïve to the point that he cannot be said to have been
wilfully blind or reckless. [Emphasis added; para. 53.]
40
Essentially, on my reading of this passage, the trial judge acquitted
Mr. Hamilton on this count because his motivation was mercenary as
opposed to malevolent.
41
In my respectful view, this was an error of law requiring our
intervention.
42
The distinction between motive and intent has been well understood by
Canadian courts since at least 1979, when Dickson J. stated:
In ordinary parlance, the words “intent” and
“motive” are frequently used interchangeably, but in the criminal law they are
distinct. In most criminal trials, the mental element, the mens rea
with which the court is concerned, relates to “intent”, i.e. the
exercise of a free will to use particular means to produce a particular result,
rather than with “motive”, i.e. that which precedes and induces the
exercise of the will. The mental element of a crime ordinarily involves no
reference to motive . . . .
(Lewis v. The Queen, [1979] 2 S.C.R. 821, at p. 831)
43
Cory and Iacobucci JJ. also underlined this distinction in United
States of America v. Dynar, [1997] 2 S.C.R. 462, emphasizing the
importance, as a matter of legal policy, of maintaining it with vigilance: “It
does not matter to society, in its efforts to secure social peace and order,
what an accused’s motive was, but only what the accused intended to do. It is
no consolation to one whose car has been stolen that the thief stole the car
intending to sell it to purchase food for a food bank” (para. 81). See also R.
v. Hibbert, [1995] 2 S.C.R. 973.
44
In this case, of course, the motive attributed to the accused was far
less laudable. He sought to make “a quick buck” by encouraging the intended
recipients of his Internet solicitation to purchase a device that generated
credit card numbers easily put to fraudulent use.
45
The trial judge’s conclusion that Mr. Hamilton did not intend to induce
the recipients to use those numbers is incompatible with the plain meaning of
the “teaser” e-mail and with her other findings of fact, including her finding
that Mr. Hamilton well understood that use of the generated numbers was
illegal. Her assertion that “[h]is motivation was monetary” immediately after
her reference to these facts demonstrates an error of law as to the mens rea
for counselling the commission of a crime, and warrants a new trial.
V
46
I would for these reasons allow the appeal on the count for counselling
fraud and order a new trial on that count, but dismiss the appeal in relation
to the three remaining counts.
The reasons of Major, Abella and Charron JJ. were delivered by
47
Charron J. (dissenting) —
At issue in this appeal is the requisite mental element for the offence of
counselling the commission of an indictable offence which is not committed.
More specifically, must the counsellor intend that the counselled offence be
committed or is it sufficient to show recklessness as to the consequences? As
we shall see, the debate concerns not so much language as it does the limits of
criminal liability.
48
Prosecutions for counselling an offence which is not committed have been
rare. The Crown in this case seeks to breathe new life into the provision to
counter the risk posed by modern day mass communications through cyberspace.
49
René Luther Hamilton sent out “teaser” e-mails on the Internet,
marketing the sale of “Top Secret Reports” he himself had purchased off a
website. The teaser advertised software that would enable the purchaser to
generate valid credit card numbers. The files that were sold, although not the
teaser, also included instructions on how to make bombs and how to break into a
house. Following a police investigation of a complaint, Mr. Hamilton was
charged under s. 464 of the Criminal Code, R.S.C. 1985, c. C-46 , with
four counts of counselling the commission of indictable offences which were not
committed: making explosive substances with intent to endanger life or cause
serious damage to property (s. 81(1) (d)), doing anything with intent to
cause an explosion of an explosive substance that is likely to cause serious
bodily harm or death to persons or is likely to cause serious damage to
property (s. 81(1) (a)), breaking and entering a dwelling-house with
intent to commit an indictable offence (s. 348(1) (d)), and by deceit,
falsehood, or other fraudulent means defrauding credit card companies of money
of a value not exceeding $5,000 (s. 380(1) (b)).
50
The trial judge held that the material, when viewed objectively,
counselled the commission of the named offences and that, consequently, the actus
reus of the offence had been made out. This finding is not in issue
on this appeal although more will be said about it later. On the question of mens
rea, the trial judge concluded that Mr. Hamilton did not intend that the
offences be carried out, nor could it be said in the circumstances that he was
reckless as to the consequences. She found that he “was naïve, lazy, or
ignorant, but [that] his intention was not criminal on any standard”: (2002), 3
Alta. L.R. (4th) 147, 2002 ABQB 15, at para. 49. She
therefore acquitted him of all charges. The Alberta Court of Appeal confirmed
the acquittals: (2003), 25 Alta. L.R. (4th) 1, 2003 ABCA 255. The Crown
appeals from the judgment.
51
For the reasons that follow, I would dismiss the appeal.
I. Facts
52
Mr. Hamilton, 23 years old at the time, was alleged to have sold
articles on how to commit the aforementioned offences through a website he had
created. Mr. Hamilton had received a “teaser” e-mail advertising the “Top
Secret” files, enticing him to purchase the product. Mr.
Hamilton recycled the “teaser” and website format of the company he had
purchased the files from, changing only the address, and began e‑mailing
his own “teaser” and advertising the files on his website. The “teaser” was
sent to between 300 and 500 people whose addresses he had acquired from
published lists. He made in excess of 20 sales over a number of months. His
activities came to the attention of the Edmonton police through complaints by
some recipients of the spam‑mail who either reported it directly to the
Edmonton police or to Interpol.
53
The “teaser” that Mr. Hamilton received and subsequently used as his own
did not make reference to the bomb or break and enter documents, but did refer
extensively to the credit card number generator. The web page did not make reference
to any illegal documents. The relevant parts of the “teaser” are reproduced in
my colleague Fish J.’s judgment at para. 8. As one can see, the “teaser” reads
like a typical advertisement for a product, asserting its supposed useful
qualities in exaggerated terms. Mr. Hamilton received the files he purchased
on disk and in hard copy. He testified that the package as a whole interested
him, including the “absurd material” and the “money-making opportunities”.
According to him, he thought others might be similarly interested.
54
Mr. Hamilton saw a computer generated list containing abbreviated names
of the files. He testified that he skimmed through the file names, proceeding
to read further into those that caught his attention. The computer list
contained file names such as: bombs.txt, bombs2.txt, bombs3.txt, How to Break
into a House.txt, and visa hacking.txt. Of the roughly 200 files consisting of
2000 pages of text, it is these 5 files, about 13 pages in length, that are relevant
to the charges. Except for the “visa hacking” file, Mr. Hamilton testified
that he never read or was aware of the files in question.
55
The files related to explosive substances are best characterized as “how
to” recipes. They contain ingredient lists and step-by-step instructions for
producing several types of homemade bombs. Evident from its file name, the
“How to Break into a House” file is also a “how to” document, listing a series
of steps to be followed when attempting to break into a home. It is short and
very basic.
56
The “visa hacking” file provides instructions regarding the
generation of credit card numbers, which is essentially an exercise in adding
and subtracting from an original valid number. A search of Mr. Hamilton’s
computer revealed another document describing a credit card number generator
that did not form part of the “Top Secret” files; however, Mr.
Hamilton testified that he frequently downloaded information to his computer
which he never read, this file being one such example. Furthermore, a
handwritten list of Visa numbers was found. Mr. Hamilton had used the credit
card number generator described in the files, his mother’s credit card being
the starting point. The numbers he generated were all valid save one, but a
bank employee testified that no complaints were received regarding their
improper use. Mr. Hamilton testified his motivation in generating numbers was
to figure out the mathematics behind credit card number formulation, and not to
actually use the numbers. He testified that he did not know at the time that
it would be possible to use a credit card number without a name, expiry date or
security number that is found on the back of credit cards. At the time, Mr.
Hamilton had never possessed a credit card of his own.
II. Judicial History
57
The trial judge found that the actus reus had been proven in
respect of each offence. As noted earlier, this finding was not contested
before the Court of Appeal or before this Court. The more contentious issue
raised at all court levels concerns the requisite mens rea.
58
The Crown argued at trial that the mens rea required for
counselling is simply the intent to counsel. This intent need not be
subjective. It can be found on an objective standard and can arise from wilful
blindness. Hence, the Crown submitted that the requisite mental element could
be inferred from Mr. Hamilton’s knowledge that he was passing on a credit card
number generator and his knowledge or wilful blindness as to his passing on the
instructions in relation to bombs and breaking into homes. On this approach it
is irrelevant whether Mr. Hamilton intended or even adverted to the risk that
the persons counselled commit any of the offences.
59
The defence argued that the mens rea required for counselling is
two-fold: first, the subjective intent to counsel an offence; and second, the
intent that the offence counselled be committed.
60
The trial judge accepted the defence’s position. She held that the
counsellor must intend his own actions — namely the counselling of an offence —
and must also intend that the counselled offence be carried out. In light of
her factual findings on Mr. Hamilton’s lack of criminal intent on any standard,
the trial judge left for another day the question of whether recklessness or
wilful blindness could satisfy the requisite mental element. I will review the
trial judge’s reasons for acquitting Mr. Hamilton in more detail later in this
judgment.
61
The Alberta Court of Appeal dismissed the Crown’s appeal. The court
affirmed the trial judge’s conclusion that an accused must both intend to
counsel a criminal act and intend that the counselled crime be committed for
the offence to be made out. The court held further that even if recklessness
or wilful blindness were the applicable mens rea, there was nothing
pertaining to these subjects in the trial judge’s reasons that amounted to an
error of law justifying appellate intervention.
62
The Crown appeals on the question of mens rea. The Crown no
longer contends, as it did in the lower courts, that solely the intent to
commit the act of counselling suffices. However, the Crown submits that the
counsellor need not intend that the counselled offence be committed;
recklessness as to possible unlawful consequences satisfies the mental element
of the offence. Mr. Hamilton’s position is that adopted by the Court of
Appeal, namely the offence of counselling requires proof that the accused
actually intended that the offences be committed, in this case, an intent that
someone commit credit card fraud, break and enter into a dwelling house, or
make and illegally use bombs.
III. Analysis
A.
Statutory Provisions
63
The offence of counselling is set out in s. 22(1) of the Criminal
Code :
22. (1) Where a person counsels another
person to be a party to an offence and that other person is afterwards a party
to that offence, the person who counselled is a party to that offence,
notwithstanding that the offence was committed in a way different from that
which was counselled.
Under s.
22(2), the scope of the counsellor’s liability is enlarged to encompass
collateral crimes committed by the person counselled:
(2) Every one who counsels another person to be a
party to an offence is a party to every offence that the other commits in
consequence of the counselling that the person who counselled knew or ought to
have known was likely to be committed in consequence of the counselling.
Section 22(3)
defines “counsel”:
(3) For the purposes of this Act, “counsel”
includes procure, solicit or incite.
As we shall
see, the meaning of “counsel” is of crucial importance in this case. The
French version of the definition provides further assistance in understanding
its meaning:
(3) Pour l’application de la présente loi, «
conseiller » s’entend d’amener et d’inciter, et « conseil » s’entend de
l’encouragement visant à amener ou à inciter.
As the wording
makes clear, a requisite element of the offence of counselling under s. 22 is
the actual participation in an offence by the person counselled. Under
s. 21(1), a party to an offence is one who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any
person to commit it; or
(c) abets any person in committing it.
Hence,
counselling an offence, if the offence is not committed, does not satisfy the
elements of the offence set out under s. 22(1) . Criminal liability in these
circumstances rests rather on a combination of s. 22(1) and s. 464 of the Criminal
Code . Section 464 reads as follows:
464. Except where otherwise expressly
provided by law, the following provisions apply in respect of persons who
counsel other persons to commit offences, namely,
(a) every one who counsels another person to commit an
indictable offence is, if the offence is not committed, guilty of an
indictable offence and liable to the same punishment to which a person who
attempts to commit that offence is liable; and
(b) every one who counsels another person to commit an
offence punishable on summary conviction is, if the offence is not committed,
guilty of an offence punishable on summary conviction.
The penalties
where the offence counselled is an indictable offence are set out under s. 463
— where the counselled offence is punishable by life imprisonment, the maximum
sentence is 14 years; in other cases, it is one-half of the longest term for
which the person who is guilty of the completed offence is liable.
64
As we can see, the Criminal Code provisions do not spell out the
required mens rea, nor do they provide much specificity on the nature
and quality of expression that constitutes counselling or the circumstances in
which counselling will be held to have occurred. As is the case with many
other offences, these matters are left to judicial interpretation. To this
end, I will begin by considering the rationale for criminalizing acts of
counselling.
B. Why
Criminalize Acts of Counselling?
65
The criminalization of counselling the commission of an offence creates
a form of secondary liability. Where the counselled offence is committed, the
act of counselling constitutes participation; where the counselled offence is
not committed, the crime is said to be inchoate. Black’s Law Dictionary
(8th ed. 2004) defines an inchoate crime as “[a] step toward the commission of
another crime, the step in itself being serious enough to merit punishment.”
The rationale for imposing criminal liability for participation and inchoate
offences is the same as that for primary liability. As noted by my colleague
Fish J., the Law Reform Commission of Canada, as it was then called, provided a
useful summary of the rationale in its Working Paper 45, Secondary
Liability: Participation in Crime and Inchoate Offences (1985). I repeat
it here for convenience:
Primary liability attaches to the commission of acts which are outlawed
as being harmful, as infringing important human interests and as violating
basic social values. Secondary liability attaches on the same ground to
their attempted commission, to counselling their commission and to assisting
their commission.
This is clear with participation. If the primary
act (for example, killing) is harmful, then doing it becomes objectionable.
But if doing it is objectionable, it is also objectionable to get another
person to do it, or help him do it. For while killing is objectionable because
it causes actual harm (namely, death), so too inducing and assisting killing
are objectionable because of the potential harm: they increase the likelihood
of death occurring.
The same arguments hold for inchoate crimes.
Again, if the primary act (for example, killing), is harmful, society will want
people not to do it. Equally, it will not want them even to try to do it, or to
counsel or incite others to do it. For while the act itself causes actual
harm, attempting to do it, or counselling, inciting or procuring someone
else to do it, are sources of potential harm — they increase the likelihood of
that particular harm’s occurrence. Accordingly, society is justified in
taking certain measures in respect of them: outlawing them with sanctions, and
authorizing intervention to prevent the harm from materializing. [Emphasis
added; pp. 5-6.]
The Working
Paper goes on to note that the imposition of criminal liability, although
easily justifiable from a risk-averse perspective, gives rise to problems
concerning the justifiable limits of the criminal law:
We criminalize certain conduct to protect fundamental values, but at
the cost of encroachment on other values. For instance, as some economists
would put it, if an act causes harm, that is to the victim, then forbidding it
also causes “harm,” namely to those who are no longer legally free to do it.
The potential victim’s well-being is promoted at the expense of the liberty of
others. In making criminal laws, therefore, society must seek a balance and
beware of undue infringment [sic] on individual liberty through
forbidding things which people should be free to do. [p. 6]
66
Of course, subject to minimal constitutional
requirements, it is up to Parliament to draw the line between criminal and
permissible behaviour. However, the language used to express Parliament’s
intention is often imprecise and open to competing interpretations. In adding
flesh to Criminal Code provisions it is important not to overreach the
purpose of the criminal sanction at the expense of other important social
values. This is particularly so in a case such as this one where the conduct
in question consists of communications.
C. The Actus Reus for Counselling an Offence Not Committed
67
As stated earlier, only mens rea is at issue on this appeal.
However, in order to properly determine the fault requirement for any offence,
it is necessary to consider the actus reus of the offence so as to
identify the circumstances and consequences to which the offence is directed.
The actus reus under s. 464 consists of “counsel[ling] another person to
commit an indictable offence” (or an offence punishable on summary
conviction). Hence, there must be:
(a) an act of counselling;
(b) communicated to another person;
(c) in respect of the commission of an offence.
It is readily
apparent from the language of the provision that the interpretation of the word
“counsel”, in large part, will determine the scope of criminal liability.
68
In its ordinary sense, counselling means simply to advise. If given
that meaning, the scope of targeted activity would potentially be very wide.
The simple communication of information on “how to” commit an offence would
suffice to make out the actus reus of the offence. The criminalization
of all such communications could easily be justified on the basis that society
seeks to protect itself against the potential harm occasioned by acts of
counselling — the increased likelihood that the counselled offence be
committed. After all, it is at least arguable that the communication of this
kind of information may plant a seed in the recipient’s mind and increase the
likelihood of the crime materializing. Should then all such communications be
banned? More significantly, should they be subject to society’s severest
sanction, the criminal law?
69
We must ask ourselves if the resulting encroachment on freedom of speech
would exact too high a cost. If “counsel” meant simply to advise, a lawyer’s
advice to a client on the law with respect to the various means of committing
an offence could potentially be caught. Movies, video games, textbooks, and
other literary works that describe or depict the commission of an offence may
be subject to state scrutiny. I would think it obvious that such a prohibition
on expression would be too wide. It is for this reason, as we shall see, that
such an interpretation of the word “counsel” has been rejected in the criminal
context.
70
The requisite actus reus of the offence of counselling was
considered in R. v. Dionne (1987), 79 N.B.R. (2d) 297 (C.A.). Mr.
Dionne was charged with counselling indictable offences that were not
committed. He was alleged to have counselled an undercover officer to commit
the offences of threatening and assault causing bodily harm. The trial judge
instructed the jury on the requisite elements of the offences as follows, at
para. 20:
[translation] Taking each
count individually, the offence is complete if, first of all, the accused had
the intention of having injury caused, or of having threats made by telephone,
as the case may be, and secondly, if the accused conveyed his intention to
someone else with a view to having that person cause the injuries, or make the
threats by telephone.
71
On appeal, the New Brunswick Court of Appeal
held that these instructions were erroneous. The actus reus of the
offence of counselling could not be made out on the basis of a mere passive
communication by an accused of his desire that an offence be committed — more
was required. Ayles J.A. stated as follows, at para. 21:
[translation]
In my opinion, those instructions are incorrect since the offence of incitement
implies actions which are more serious than those of conveying one’s intention
to have injuries inflicted upon someone, with a view to having those injuries
inflicted. The actions or words must be capable of inducing a person to
commit the intended offences, and passive communication of one’s intention does
not constitute an offence even if the object is to have injuries inflicted upon
someone. [Emphasis added.]
72
This Court considered Dionne and expressly
adopted this “stronger meaning of actively inducing” in R. v. Sharpe,
[2001] 1 S.C.R. 45, 2001 SCC 2, at para. 56. In order for the actus reus to
be proven, the words communicated by the accused, viewed objectively, must be
seen as actively inducing, procuring or encouraging the commission of an
offence. This restricted interpretation of the meaning of counselling is not
only consonant with the definition of “counsel” under s. 22(3) , it ensures that
the scope of the offence remains within the justifiable limits of the criminal
law. It is this concern of potential overbreadth that informed this Court’s
adoption in Sharpe of a more restricted meaning of counselling.
73
The need to carefully circumscribe the scope of an offence prohibiting a
form of communication was discussed at length in R. v. Keegstra, [1990]
3 S.C.R. 697. In that case, the constitutional validity of s. 319(2), which
prohibits communications that wilfully promote hatred against an identifiable
group, was challenged on the basis that it unduly restricted the freedom of
expression under s. 2 (b) of the Canadian Charter of Rights and
Freedoms . This Court, by majority decision, upheld the constitutional
validity of the provision. It did so on the basis that s. 319(2) possessed
sufficient definitional safeguards to ensure that it captured only the harm to
which the prohibition is targeted and, as such, did not unduly restrict the s.
2 (b) guarantee.
74
Hence, as held in Sharpe, nothing short of active
inducement or encouragement will suffice to make out the actus reus of
the offence of counselling. In other words, when viewed objectively, the
communication must be one that actively seeks to persuade the person counselled
to commit the crime. In this way, the scope of targeted activity is not
extended to the mere possibility of planting a seed in the recipient’s mind; it
is limited to those communications that are likely to cause that seed to
sprout, creating a resolve to commit the crime. It is only then that the
potential risk justifies the criminal prohibition. However, it is well
established that it is not necessary that the person counselled be in fact
persuaded: R. v. Walia (No. 1) (1975), 9 C.R. (3d) 293
(B.C.C.A.), at pp. 293-95; R. v. Glubisz (1979), 47 C.C.C. (2d) 232
(B.C.C.A.), at pp. 235 and 241-42; R. v. Gonzague (1983), 4 C.C.C. (3d)
505 (Ont. C.A.), at pp. 508-9. The focus on a prosecution for counselling is
on the counsellor’s conduct and state of mind, not that of the person counselled.
D. The
Mens Rea for Counselling an Offence Not Committed
75
No constitutional challenge is raised in this case. Nonetheless, the
Court must be mindful of the potential overbreadth of a criminal sanction whose
sole target is speech. As reiterated in Sharpe, Parliament is presumed
to have intended to enact legislation in conformity with the Charter (para.
33). This concern over the potential sweep of the provision does not end with
the analysis of the requisite actus reus and the level of risk targeted
by Parliament. The persons who could potentially fall within the reach of the
criminal law must be considered. Because of the stigma attached to a criminal
prosecution and to a conviction, it is important that the offence not catch the
morally innocent.
76
The requisite mens rea is not expressly set out in s. 464 .
However, this is not unusual. The mental element of an offence is not always
described in the enactment. Often it must be inferred from the nature of the
prohibited activity and the harm it is meant to guard against. In this case,
because of the nature of the offence, our earlier discussion on the requisite actus
reus can largely inform the determination of the necessary mens rea.
As we have seen, it is not sufficient that the communication simply raise the
possibility of affecting its recipient; it must actively seek to persuade that
person to commit the crime. It follows that the counsellor must, at the very
least, intend to persuade the person counselled to commit the offence.
In this respect, it is my view that mere recklessness as to the counselled
person’s reaction to the communication is insufficient. In other words, it is
not enough that the counsellor, knowing that the communication is objectively
capable of persuading a person to commit an offence, goes ahead and does the
act anyway. If mere recklessness as to the communication’s potential power of
persuasion were to suffice, some may argue that the publication of
Shakespeare’s Henry VI, with its famous phrase “let’s kill all the
lawyers”, should be subject to state scrutiny!
77
Hence, the counsellor must intend to persuade the person counselled to
commit the offence. Simply intending the communication, as advocated by the
Crown at trial, is not sufficient. An additional question has been posed,
mostly in academic writings: must the counsellor
also intend that the offence be committed? This is often referred to as a
“dual mens rea” requirement. In my view, in all but the most unusual
circumstances, it is not necessary to adopt a distinct “two-step” approach to
determine whether the accused possesses the necessary mens rea. It is
logical to infer that the counsellor who intends to persuade the person
counselled to commit an offence intends that the offence be committed.
However, unusual circumstances did arise in R. v. Janeteas (2003), 172
C.C.C. (3d) 97 (Ont. C.A.), and it became necessary for the court to examine
whether the counsellor must also intend the commission of the counselled
offence. The question was fully canvassed by Moldaver J.A. who concluded that
such an intent was required. I agree with his analysis.
78
The peculiar facts of Janeteas are as follows. Mr. Janeteas came
to befriend J.B. and her mother B.G., subsequently learning of J.B.’s marital
difficulties with her husband Dr. M.B. According to Mr. Janeteas, he began to
fear for Dr. M.B.’s safety as a result of conversations with J.B. and B.G. in
which they made it known that they wanted to have Dr. M.B. harmed or even
killed. He felt that Dr. M.B. should be warned, and in an attempt to obtain
hard evidence, tape-recorded a conversation with J.B. and B.G. in which he
actively encouraged them to have Dr. M.B. harmed or killed and expressed his
willingness to make the necessary arrangements. He then met with Dr. M.B., and
over the next few months was able to obtain $35,000 from him. Moldaver J.A.
found that Mr. Janeteas did not possess the requisite mens rea, stating,
at para. 43:
The present case is one of those rare instances where, despite the
appellant’s intention that his words be taken seriously, the Crown does not
maintain that he intended the commission of the crimes counselled. While the
appellant’s actions were reprehensible, I am not convinced that the reach of
the criminal law should be extended, at the expense of established principle,
to ensnare the likes of the appellant.
79
The Crown’s position before this Court is consonant with this “dual” mens
rea requirement. The Crown is no longer contending, as it did at trial,
that an accused’s intention in respect of the commission of the counselled
offence is irrelevant. The Crown, however, submits that recklessness as to
whether the person counselled will commit the offence suffices. Hence, on that
approach, the counsellor’s knowledge, without more, of the communication’s
objective potential to persuade would meet the standard. For the same reasons
expressed in respect of the actus reus, it is my view that this interpretation,
which would result in criminal liability even when the counsellor does not
intend to see that act committed, but is simply reckless as to the reaction of
the person counselled, would unduly widen the scope of criminality. As aptly
noted by the intervener Canadian Civil Liberties Association, the
interpretation advocated by the Crown would risk criminalizing legitimate forms
of protest, advocacy or dissent and, arguably, even the reproduction and
distribution, for historical or teaching purposes, of classic texts. The value
placed on freedom of expression militates in favour of a more restricted
interpretation.
80
Although the offence in question was a different one, the reasoning of
the Court in Keegstra on the requisite mental element is nonetheless
instructive, because much the same concerns about the potential breadth of the
prohibition against acts of communication informed the analysis of the Court on
the question of mens rea. The Court adopted a stringent standard,
noting that the limitation on the mens rea required to convict for
“wilfully promoting hatred” was a key factor in minimizing the impairment of
freedom of expression caused by that provision. Dickson C.J. noted that the
requirement that the speaker subjectively intend that his speech promote hatred
“significantly restricts the reach of the provision, and thereby reduces the
scope of the targeted expression” (p. 775). This was seen to be “an invaluable
means of limiting the incursion of s. 319(2) into the realm of acceptable
(though perhaps offensive and controversial) expression” (p. 775). Of course,
the word “wilfully” is not found in s. 464 as it was in s. 319(2). However,
the restricted meaning of the word “counsel”, as an active inducing,
procuring or encouraging the commission of an offence, connotes the same
requirement that there be a subjective intent to persuade the person counselled
to commit the offence. This requirement, from a logical standpoint, can
only be met if the counsellor intends that the offence be committed.
Recklessness alone cannot suffice. Since the mens rea is largely
inferred from the actus reus itself, the application of the lesser
standard of recklessness, in my view, would result in widening the scope of
prohibited activity beyond that accepted by this Court in Sharpe.
81
There is no question that the Crown is correct in saying that the
Internet poses particular risks because of the ease with which mass
communications may be disseminated worldwide. The particular nature of
communications through cyberspace may well provide justification to limit the
diffusion of the most dangerous expression on a lesser standard, even on
objective grounds alone. However, it is my view that the remedy does not lie
in an expansive interpretation of the offence of counselling. The offence of
counselling, applying as it does to all crimes, is too blunt an instrument to
address this situation without imperiling a range of harmless and/or valuable
expression.
82
For these reasons, I agree with the Court of Appeal that the more
demanding standard of subjective mens rea should apply: the counsellor
must intend that the counselled offence be committed for the offence to be made
out. As noted by the Ontario Court of Appeal in Janeteas and the
Alberta Court of Appeal in this case, this approach has the support of many in
the legal community. For Canadian writings, see: D. Stuart, Canadian
Criminal Law: A Treatise (4th ed. 2001), at pp. 227 and 703; K. Roach, Criminal
Law (3rd ed. 2004), at pp. 125-26; E. Colvin, Principles of Criminal Law
(2nd ed. 1991), at p. 377. For American academic support, see: W. R. LaFave, Substantive
Criminal Law (2nd ed. 2003), vol. 2, at pp. 194-95; J. Dressler, Understanding
Criminal Law (3rd ed. 2001), at pp. 415-16. For British support, see: A.
Ashworth, Principles of Criminal Law (4th ed. 2003), at p. 466; G.
Williams, Textbook of Criminal Law (2nd ed. 1983), at p. 442; Smith
& Hogan Criminal Law (9th ed. 1999), at p. 271.
E. Application
to This Case
83
As noted earlier, the trial judge concluded that the actus reus of
the offence had been proven in respect of each of the four counts. While this
conclusion in respect of the fraud count appears well founded, it is difficult
to find support on the record in respect of the three remaining counts. As
discussed earlier, a simple “how to” recipe for committing a crime, without
more, does not appear to meet the test adopted in Sharpe. However, no
issue was raised with respect to the trial judge’s conclusion on the actus reus
and it is not necessary to decide the matter to dispose of this appeal.
84
The trial judge concluded that Mr. Hamilton did not have the necessary mens
rea on any standard. The Court of Appeal saw no reason to interfere with
her conclusion. Nor do I. My colleague Fish J. is of the view that the trial
judge erred by confounding “motive” and “intent”. He rests this conclusion on
the trial judge’s finding that Mr. Hamilton’s motivation was monetary. With
respect, I disagree. The trial judge’s consideration of Mr. Hamilton’s
motivation must be examined in the context of the evidence before her, and her
reasons must be read as a whole.
85
Mr. Hamilton testified that he had not intended to induce the commission
of any criminal offence. He had not written any of the files; he had himself
purchased them off the Internet and did not even know what much of the
information was about. The files consisted of roughly 2,000 pages of text, only
13 of which related to the charges before the court. In particular, he had not
read any of the files about bombs or break and enters. The teaser made no
reference to these files. As for the material on the credit card generator, he
thought readers would simply be interested, as he had been, in discovering how
easy it was to generate valid credit card numbers. He did not think anyone
could use the credit card numbers without a valid name, expiry date or security
number. Notably, at the relevant time Mr. Hamilton had never owned a credit
card. The trial judge, as she was entitled to do, accepted Mr. Hamilton’s
testimony. She concluded as follows, at paras. 53-54:
On all the evidence I find that Mr. Hamilton ought
to have known he was counselling fraud. The teaser and his subjective
knowledge that the use of false credit card numbers is illegal make this
conclusion irresistible. However, I have a doubt that Mr. Hamilton had
subjective intent to counsel fraud. His motivation was monetary, and he sought
to pique the curiosity of readers who might acquire the information in the same
way that he was initially attracted to the information. Further, he struck me
as utterly unsophisticated and naïve to the point that he cannot be said to
have been wilfully blind or reckless.
I also find that Mr. Hamilton did not intend the
fraud be carried out nor was he wilfully blind or reckless as to the risk of
deprivation which would result (to use the Theroux test). In my view
the evidence points to a conclusion that Mr. Hamilton was inviting others to do
as he had done: to satisfy their curiosity by seeing how easy it is to generate
the numbers and to expect that they cannot use them without the expiry date.
In other words, he did not specifically intend that the fraud would be carried
out. Nor, in all of the circumstances, ought he to have known that the fraud
would be carried out. It follows that there could not be a conclusion that he
was wilfully blind or reckless as to the consequences of the fraud. Rather,
Mr. Hamilton was trying to make money by selling information on the Internet.
In my view, on all of the evidence, it cannot be found he counselled fraud.
The trial judge was entitled to consider motive. It is a piece of
circumstantial evidence that may assist in determining an accused’s state of
mind. In reading her reasons as a whole, I see no reason to interfere with the
conclusion reached by the Court of Appeal on this issue, at para. 44:
The trial judge did not err as alleged by the
Crown. As she was entitled to do, the trial judge considered motive as part of
her fact findings. But her decision was based on other facts relating to the
respondent’s knowledge. She found, for example, that the respondent had not
read most of the “Top Secret” files. She also found that he was not interested
in their contents and that he was, overall, “naive, lazy or ignorant”. Dealing
with the credit card number generator, the trial judge accepted the
respondent’s testimony that he did not think any generated numbers could be
used because they lacked an expiry date. On the basis of these facts, she
found the respondent lacked sufficient knowledge of the consequences of his
actions to satisfy the mens rea requirement. It is clear that she
understood the nature of the test she was bound to apply and did not err in
law.
IV. Disposition
86
For these reasons, I would dismiss the appeal.
Appeal allowed in part, Major,
Abella and Charron JJ. dissenting.
Solicitor for the appellant: Attorney General of Alberta,
Edmonton.
Solicitors for the respondent: Pringle & Associates,
Edmonton.
Solicitor for the intervener the Attorney General of
Ontario: Ministry of the Attorney General of Ontario, Toronto.
Solicitors for the intervener the Canadian Civil Liberties
Association: Paliare Roland Rosenberg Rothstein, Toronto.