The computer and telecommunications:. The computer is a machine much like a calculator. It calculates primarily. However, since WW2, we have evidence that every computer can be networked and transmit information. If the computer is transmitting information with add ons or peripherals such as the modem, then at the moment of transmission it is a telecommunications device. This is not difficult to accept today when the mobile phone is a computer, a television and certainly a telecom device for sending and receiving; information. In the early years of modern computing, we see the debate that ensued here over definitions in the statutes. It is humbly submitted that the Trial Judge was correct in that the computer as calculator had changed into a telecommunications device with the connected terminals ( the modems) and was used to transmit; transmit information illegally contrary to the university's intention. The actus reus was proved by the Crown; on the evidence. The mens rea is satisfied; the intent to transmit without authorization and commit theft of data; a breach. There is evidence of what was the legal and intentional transmission at the university and then also the illegal, unauthorized transmission. The actus reus was proved on the facts. How did a calculator send transmissions if it is not a telecommunications device as connected to a telephone line with a modem where the modem is designed to work with the computer to communicate, send and receive the information? Our mind then must, for this case, turn to the modem if not just the calculator/ computer as the telecommunications device and now all can rest that the statute used for the charges do stand and support the evidence/ as supported by the evidence ( : -- ) ). This is in addition to the charge of theft and mischief. The modem is now internal to most designs of the modern calculator/ computer/ smart phone and the issue of calculator/ telecommunications device is concluded as the machine is symbiotic with communication and calculating. Most importantly, a dastardly deed was done whether he assaulted the University with the mere calculator or the telecommunications device or with a his hand or with a hammer. An assault is an assault with hand, spit or hammer and a transmission is a transmission and maybe calculators can transmit with a calculator modem/ computer modem as designed; and transmit. He cannot just get away. The statute works as we see the modem and the calculator. The modem is the telecommunications device for the statute. I would support the conviction and see that the modem is the device to satisfy the statue involving telecommunications or how else did the Alberta university files end up in Hoboken, New Jersey? By Angel Ronan Lex Scripta. Call for your consultation. By Mr. Dudes White, Executive with research by Warren A. Lyon. He is like nothing. ////////// 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”. ClIck here.

 The computer and telecommunications:. The computer is a machine much like a calculator. It calculates primarily.  However, since WW2, we have evidence that every computer can be networked and transmit information.  If the computer is transmitting information with add ons or peripherals such as the modem, then at the moment of transmission it is a telecommunications device. This is not difficult to accept today when the mobile phone is a computer, a television and certainly a telecom device for sending and receiving; information. 

In the early years of modern computing, we see the debate that ensued here over definitions in the statutes.  

It is humbly submitted that the Trial Judge was correct in that the computer as  calculator had changed into a telecommunications device with the connected terminals ( the modems) and was used to transmit; transmit information illegally contrary to the university's intention. The actus reus was proved by the Crown; on the evidence. The mens rea is satisfied; the intent to transmit without authorization and commit theft of data; a breach.    There is evidence of what was the legal and intentional transmission at the university and then also the  illegal, unauthorized transmission. The actus reus was proved on the facts. How did a calculator send transmissions if it is not a telecommunications device as connected to a telephone line with a modem where the modem is designed to work with the computer to communicate, send and receive the information? Our mind then must, for this case, turn to the modem if not just the calculator/ computer as the telecommunications device and now all can rest that the statute used for the charges  do stand and support the evidence/ as supported by the evidence (   : -- )       ).  

This is in addition to the charge of theft and mischief. The modem is now internal to most designs of the modern calculator/ computer/ smart phone and the issue of calculator/ telecommunications device is concluded as the machine is symbiotic with communication and calculating. 

Most importantly, a dastardly deed was done whether he assaulted the University with the mere calculator or the telecommunications device or with a his hand or with a hammer.  An assault is an assault with hand, spit or hammer and a transmission is a transmission and  maybe calculators can transmit with a calculator modem/ computer modem as designed; and transmit.    

   He cannot just get away. The statute works as we see the modem and the calculator. The modem is the telecommunications device for the statute.  

I would support the conviction and see that the modem is the device to satisfy the statue involving telecommunications or how else did the Alberta university files end up in Hoboken, New Jersey? 

By Angel Ronan Lex Scripta.  Call for your consultation.  By Mr. Dudes White, Executive with research by Warren A. Lyon. He is like nothing.  

//////////

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.