R. v. McLaughlin, [1980] 2 SCR 331

Supreme Court of Canada

R. v. McLaughlin, [1980] 2 S.C.R. 331

Date: 1980-07-18

Her Majesty The Queen Appellant;

and

Michael McLaughlin Respondent.

1980: June 23; 1980: July 18.

Present: Laskin C.J. and Ritchie, Dickson, Estey and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL OF ALBERTA

Criminal law—Fraudulent use of telecommunication facilities—Computer—Criminal Code, s. 287(1)(b).

The accused was convicted of theft in that he without colour of right used a computer to obtain internal progammes of the computer and information from other persons’ files in the computer contrary to s. 287(1)(b) of the Criminal Code. The trial judge held that the computer system consisting of the central processing unit, the memory and the printers and connected terminals constituted a telecommunication facility within the meaning of s. 287(1)(b) of the Code. The appeal from the conviction was allowed by a majority of the Alberta Court of Appeal. Morrow J.A. stated that the accent of a computer system is computing or calculation, with the relay or communication aspect only incidental and therefore such a device did not constitute a telecommunication facility.

Held: The appeal should be dismissed.

Per Laskin C.J. and Ritchie, Dickson and Lamer JJ.: What is involved here is a data processing facility as opposed to a telecommunication facility. Although there was transmission of intelligence from one part of the facility to another, there was no reception by other facilities nor emissions from the facility. What was aimed at in s. 287 is the theft of information from a facility through which it is channelled. The function of a computer is not the channelling of information to outside recipients so as to be susceptible to unauthorized use but rather to permit the making of complex calculations and to process, correlate, store and retrieve information. Criminal statutes should, where there is uncertainty or ambiguity of meaning, be construed in favour of rather than against an accused. The accused must be brought fully within the statute and cannot be held guilty of a violation if it is only applicable in part. In this case the conduct of the accused was not clearly caught

[Page 332]

by the statute so as to warrant a conviction.

Per Ritchie and Estey JJ.: An essential characteristic of a “telecommunication” is the “transmission… of signals”. Transmission connotes delivery from an origination point to a reception point. It does not connote a conceptual transfer of something with neither sender nor receiver, such as the electromagnetic impulses which flow inside a computer during its operation. It is useful to note that the same definition of “telecommunication” is used in various broadcasting legislation unrelated to the licensing or regulation of computers.

Maltais v. The Queen, [1978] 1 S.C.R. 441, referred to.

APPEAL from a judgment of the Alberta Court of Appeal[1], setting aside the conviction of the respondent. Appeal dismissed.

M.D. Thachuk, for the appellant.

Dan Hagg, for the respondent.

The judgment of Laskin C.J. and Ritchie, Dickson and Lamer JJ. was delivered by

THE CHIEF JUSTICE—The issue in this appeal, which is here as of right pursuant to Criminal Code, s 621(1)(a), is whether theft is committed, contrary to Criminal Code, s. 287(1)(b), where a person, without colour of right, uses a computer to obtain internal programmes of the computer and information from other persons’ files in the computer. The issue is a narrow one, turning on whether the appropriation of the programmes and other information involves use of a “telecommunication facility”.

Section 287(1)(b) reads as follows:

287.(1) Every one commits theft who fraudulently, maliciously, or without colour of right,

…

(b) uses any telecommunication facility or obtains any telecommunication service.

[Page 333]

Subsection 2 defines “telecommunication” to mean “any transmission, emission or reception of signs, signals, writing, images, sounds or intelligence of any nature by radio, visual, electronic or other electromagnetic system”.

The accused was indicted on two counts, one of theft under s. 287(1)(b) and one of mischief under s. 387(1)(c). He was acquitted on the second count and it is no longer in issue. However, he was convicted on the theft count by Hope J. who held that the computer system, consisting of the central processing unit (the main frame), the memory and the printers and connected terminals (of which there were about three hundred at the material time) constituted a “telecommunication facility” which was used by the accused. This brought him, according to the trial judge, within the terms of s. 287(1)(b). Hope J. apparently did not find it necessary to examine whether there was a “transmission” or “reception” involved in the use made of the computer by the accused, as those terms are found in the statutory definition of “telecommunication”. After referring to the evidence touching the components of the computer system, he concluded as follows:

…I am satisfied beyond a reasonable doubt that the computer in all its components is a telecommunication facility within the meaning of the very wide definition that I have previously mentioned.

The accused’s appeal from his conviction was allowed by a majority of the Alberta Court of Appeal, McClung J., ad hoc, dissenting. Morrow J.A. who spoke for the majority (Laycraft J.A. concurring with him) said that the evidence showed that “the unauthorized use was with respect to processing of material although it had to move from the central processing unit to the actual access point being used by the appellant”. Proceeding from this, and noting the principle that any ambiguity in a criminal provision should be resolved in favour of the accused, he then adopted the approach in Maltais v. The Queen[2], (to which I will refer later in these reasons) and came to the following determination:

[Page 334]

…I am unable to read “telecommunication facility” along with the statutory definition of “telecommunication” as having application to the unit or device with all its various components under consideration in the present case. The whole accent here is on computing or calculation with the relay or communication aspect as only incidental. It seems to me it would be an improper extrusion of the language to hold that such a device constituted a telecommunication facility.

McClung J., ad hoc, in his dissent referred to the purpose for which the computer and its access lines were constructed, namely, as a time sharing service for the various programmes at the University of Alberta which owned the computer, with access to it permitted both from inside and outside the university. He was of the view that “this could only be done by telecommunication and the appellant, obviously, was aware of it”, and he supported the conviction in the following terms:

…His asportation of the data provided by the central processing system was made possible by the very telecommunication that he now denounces as ancillary to it. The evidence persuades me that the facility intercepted by the accused was a computer designed to electronically receive and furnish information with speed and convenience to a wide but selective audience of recipients. The electronic transmission of the information was not incidental to its function—it was integral of it.

Section 287 has a history which began in simpler times when electricity alone was the protected resource, as expressed in the Electric Lighting Act, 1882 (Imp.), c. 56, s. 23, making it an offence maliciously or fraudulently to, inter alia, abstract or use any electricity. This provision was adopted in Canada by The Electric Light Inspection Act, 1894 (Can.), c. 39, s. 10, and was carried into s. 351 of the Criminal Code, R.S.C. 1906, c. 146. It was the same numbered provision in the Criminal Code, R.S.C. 1927, c. 36. In 1934, the prohibition was extended to encompass the use of a telephone or telegraph line or the obtaining of telephone or telegraph service maliciously or fraudulently: see 1934 (Can.), c. 47, s. 10. In the revision and re-enactment of the Criminal Code by 1953-54 (Can.), c. 51, “gas” was brought within the prohibition which became s. 273. This section was

[Page 335]

repealed by 1960-61 (Can.), c. 43, s. 6, and the following substituted:

273. (1) Every one commits theft who fraudulently, maliciously, or without colour of right,

(a) abstracts, consumes or uses electricity or gas or causes it to be wasted or diverted; or

(b) uses any telecommunication wire or cable or obtains any telecommunication service.

(2) In this section, “telecommunication” means any transmission, emission or reception of signs, signals, writing, images or sounds or intelligence of any nature by wire or cable.

It was this provision which, as R.S.C. 1970, c. C-34, s. 287, was before this Court in Maltais v. The Queen, supra. In that case, Dickson J., speaking for the full Court, held that “telecommunication”, defined to mean transmission by wire or cable, did not cover transmission by air waves and hence did not embrace radio transmission. What was involved in the Maltais case was the seizure of a radio station by teachers seeking to air their grievances. The microphone in the radio station studio was commandeered to broadcast their views. Broadcasts went by wire to a transmitting tower a mile away and, from there, were transmitted by Hertzian waves to receiving sets in various homes. This Court, dealing as it was with a charge of theft as a statutory crime, refused to draw a distinction between a transmission which was partly by wire and cable and a transmission which was wholly by wire and cable. The effective transmission was radio transmission and this was not then covered by s. 287.

The Maltais case is not of direct assistance here in construing and applying the present s. 287(1)(b), although it does affirm the general rule that in construing criminal statutes they should, where there is uncertainty or ambiguity of meaning, be construed in favour of rather than against an accused. In short, he must be brought fully within the statute and cannot be held guilty of a violation if it is only applicable in part. It is clear now, as it was not in the Maltais case, that radio

[Page 336]

and television broadcasting facilities are covered by the re-enacted s. 287.

I have no doubt that a computer system may be termed a “facility”, as being something built, installed or established to serve a particular function or to accomplish some end or provide a certain service. Is it, however, a facility constructed to serve a telecommunication function, within the definition of “telecommunication” in s. 287(2)?

“Transmission… or reception of… intelligence of any nature” connotes to me, in the light of the history of s. 287, that what is aimed at is the theft of information from a facility through which it is channelled. True, what is involved here is an electronic system, but the function of the computer is not the channelling of information to outside recipients so as to be susceptible in that respect to unauthorized use. Rather, it is to permit the making of complex calculations, to process and correlate information and to store it, and to enable it to be retrieved. The distinction I would draw is, admittedly, narrow. However, I do not think that using a terminal, as did the accused, to plug into the central processing unit and to retrieve information stored there brings such use within s. 287(1)(b). The use of the terminal itself would not bring s. 287(1)(b) into play, and the fact that the accused, by using the terminal, was able to make electronic connection with the central processing unit to capture information that was stored there does not advance the case against him.

What is involved here is a data processing facility rather than a telecommunication facility, although it incorporates electronic equipment. Taking the facility as a whole (the central processing unit and the terminals), there was no transmission or reception externally. Although there was transmission of intelligence from one part of the facility to another, there was no reception by other facilities nor emissions from this facility. In my opinion, the conduct of the accused is not so

[Page 337]

clearly caught by the statute as to warrant a conviction thereunder.

I would dismiss the appeal.

Ritchie J. concurred with the reasons delivered by

ESTEY J.—I have had the advantage of reading the reasons for judgment of the Chief Justice herein and wish only to add these comments concerning the nature of the charge, the section under which the charge has been laid, and the activities of the accused which gave rise to the charge.

The accused is charged that he “did fraudulently and without colour of right use a telecommunication facility, the property of the University of Alberta, Edmonton, and did thereby commit theft contrary to s. 287(1)(b) of the Criminal Code” Section 287 of the Code provides as follows:

287.(1) Every one commits theft who fraudulently, maliciously, or without colour of right,

(a) Not applicable;

(b) uses any telecommunication facility or obtains any telecommunication service.

(2) In this section… “telecommunication” means any transmission, emission or reception of signs, signals, writing, images, sounds or intelligence of any nature by radio, visual, electronic or other electromagnetic system.

The facts are very simple. The accused, without any authority, made use of the computer and its associated facilities. The computer is described in the evidence as being, in the words of the Court of Appeal:

…made up of several components which were essential to its operation. These included a main frame, a central processing unit, terminals, memory and printers.

The associated equipment included some three hundred terminals scattered about the campus of the university and connected to the computer by electric wires.

The charge must stand or fall on the simple issue as to whether or not a computer is “a tele-

[Page 338]

communication facility” as that term is used and partially defined in the section of the Code. “Facility” is defined as follows:

…something (as a hospital, machinery, plumbing) that is built, constructed, installed, or established to perform some particular function or to serve or facilitate some particular end.

Webster’s Third New International Dictionary (1976)

…something designed, built, installed, etc., to serve a specific function affording a convenience or service: transportation facilities…

Random House Dictionary of the English Language (1973)

The term “telecommunication” is defined in subs. (2) above and is identical with the definition found in the Radio Act, R.S.C. 1970, c. R-1, s. 2(1), and the Canadian Radio-television and Telecommunications Commission Act, 1974-75-76 (Can.), c. 49, s. 2, except that, unlike the definition in the Code, the word “wire” is added before “radio” and the word “electronic” is excluded so that the definition reads:

“telecommunication” means any transmission, emission or reception of signs, signals, writing, images or sounds or intelligence of any nature by wire, radio, visual or other electromagnetic system;

The combination of the two words connotes, in my view, a physical establishment or combination of physical components employed in the transmission or reception of signals by electromagnetic systems. We are not concerned with the activating source of the telecommunication facility whether it be a human voice, a telex machine, or other device for the generating of impulses to be delivered by a “telecommunication facility”. Thus we are not concerned with the situation where a computer might be employed to activate a telecommunication facility. We are simply concerned with whether or not a computer is “a telecommunication facility”. Computers are variously defined according to the nature of the audience to which the publication may be directed. We find, for example, in 16 Am Jur Proof of Facts 273:

[Page 339]

Computers may be defined as systems of machines that process information in the form of letters, numbers, and other symbols, and that are selfdirecting within predetermined limits.

Another more cryptic definition, “Basically, any kind of computing device”, is found in Peter Seipel’s Computing Law, (Stockholm, 1977) at p. 344.

“Computer” is also defined as follows:

…a calculator esp. designed for the solution of complex mathematical problems; specif: a programmable electronic device that can store, retrieve, and process data… any of several devices for making rapid calculations in navigation or gunnery…

Webster’s Third New International Dictionary (1976)

…a mechanical or electronic apparatus capable of carrying out repetitious and highly complex mathematical operations at high speeds. Computers are used in business for the maintenance of inventories, the calculation and preparation of payrolls, etc.; in industry for the automatic operation of machinery, the control of refinery operations, etc.; and in research for the determination of flight characteristics of missiles and spacecraft, the prediction of the behavior of substances acted upon by a number of variables, etc.

Random House Dictionary of the English Language (1973)

That information in the form of electromagnetic impulses flows inside the computer during its operations is unquestioned in the evidence. As pointed out in 16 Am. Jur. Proof of Facts at p. 291, information flows between and within “various portions of the computer” and “must be guided from source to destination in logical sequence according to a prescribed plan…” The sequence of the flow of information within the device is, of course, all directed to the discharge of the device’s function, namely, the provision of a solution for a particular problem. Counsel were unable to direct the Court’s attention to any authority which indicated any classification of the computer as a unit which might either be described as a telecommunication facility or a component in a telecommunication facility “or other electromagnetic system”. Again the distinction must be emphasized

[Page 340]

between an activating device connected to a telecommunication facility and that facility itself. It is trite to observe that a pocket calculator or a digital watch functions by means of electrical impulses which eventually produce a result sought by the operator. It could hardly be within the normal contemplation of the language that either of these devices is a “telecommunication facility”. No doubt either one could be connected to a telecommunication facility for the communication of signals to it for “transmission or… reception”.

An essential characteristic of a “telecommunication” according to subs. (2) of s. 287 is “transmission… of signals”. “Transmission” in the ordinary sense of the language connotes the delivery from an origination point to a reception point. It does not connote a conceptual transfer of something with neither sender nor receiver. In the Shorter Oxford English Dictionary “transmission” is defined as:

…the act of transmitting or fact of being transmitted; conveyance from one person or place to another; transference.

“Transmission” is also defined as follows:

…an act, process, or instance of transmitting…

Webster’s Third New International Dictionary (1976)

…act or process of transmitting… fact of being transmitted…

Random House Dictionary of the English Language (1973)

“Transmit” is defined as follows:

…to cause to go or be conveyed to another person or place…

Webster’s Third New International Dictionary (1976)

…to send or forward, as to a recipient or destination

…

Random House Dictionary of the English Language (1973)

[Page 341]

The internal processing of data by the central processing unit of the computer and the transfer of the results of the operation of that device to a terminal for reproduction in the form of characters on a sheet of paper or luminous points on a cathode ray tube is hardly within the ordinary concept of the transmission of information from one point or one person to another point or person. Taken too literally, the language may, of course, embrace the operation of a simple Xerox machine since it results in the transfer of optical images from one point (the item being printed) to another point (the blank sheet of paper on which the item is printed), but it would hardly fall within the ordinary usage of the language to classify such a device or system as being a telecommunication facility. The term telecommunication as defined in the Criminal Code connotes a sender and a receiver. The computer, being a computing device, contemplates the participation of one entity only, namely, the operator. In a sense, he communicates with himself, but it could hardly be said that the operator by operating the terminal or console of the computer is thereby communicating information in the sense of transmitting information and hence it stretches the language beyond reality to conclude that a person using a computer is thereby using a telecommunication facility in the sense of the Criminal Code.

It is helpful in my view to note that precisely the same definition of telecommunication is used by Parliament in the broadcasting legislation noted above where clearly the statutes are in no way concerned with the licensing and regulation of computers.

I adopt entirely the observations of the Chief Justice with reference to the proper interpretative technique to be used when construing a criminal statute. Had Parliament intended to associate penal consequences with the unauthorized operation of a computer, it no doubt would have done so in a section of the Criminal Code or other penal statute in which the term which is now so permanently embedded in our language is employed. The Court would not be expected by Parliament to

[Page 342]

glean from words generally associated with the communications industry an intent to attach penal consequences to the unauthorized operation of a computer. I therefore concur in the disposition of this appeal as proposed by the Chief Justice.

Appeal dismissed.

Solicitor for the appellant: The Attorney General of Alberta, Edmonton.

Solicitors for the respondent: Bryan, Andrekson, Edmonton.