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Canada's Top Court Quashes Child Porn Warrant

Posted by Soulskill on from the canuck-cache-case-quash dept.

m.ducharme writes "The CBC is reporting that the Supreme Court of Canada has handed down a decision quashing a search warrant used to obtain the computer of a man accused of possession of child porn. 'Urbain P. Morelli maintained his charter rights were violated when police searched his computer for child pornography after a technician who had visited his home to work on the machine expressed concerns to police.' What the Slashdot community may find notable about this decision is the distinction drawn between 'accessing' and 'possessing' digital images, most particularly the recognition that a user does not 'possess' cached data. From the decision: '[35] When accessing Web pages, most Internet browsers will store on the computer's own hard drive a temporary copy of all or most of the files that comprise the Web page. This is typically known as a "caching function" and the location of the temporary, automatic copies is known as the "cache." While the configuration of the caching function varies and can be modified by the user, cached files typically include images and are generally discarded automatically after a certain number of days, or after the cache grows to a certain size. [36] On my view of possession, the automatic caching of a file to the hard drive does not, without more, constitute possession. While the cached file might be in a "place" over which the computer user has control, in order to establish possession, it is necessary to satisfy mens rea or fault requirements as well. Thus, it must be shown that the file was knowingly stored and retained through the cache.'"

12 of 363 comments (clear)

  1. Okay... by Securityemo · · Score: 5, Interesting

    Will he have his computer back now?

    --
    Emotions! In your brain!
    1. Re:Okay... by Anonymous Coward · · Score: 5, Insightful

      Umm, no. The law is written the way it is to protect innocents from people like you, who would crucify someone at the first allegation of "child porn", without asking questions and allowing for a fair trial, proper investigations and collection of evidence, etc. How do you know he really is the criminal you say he is? Or we could model ourselves after somewhere like Central America... mere accusations will get you lynched and set on fire.

    2. Re:Okay... by Entropius · · Score: 5, Insightful

      The judge didn't say that he was innocent.

      The judge said that the existence of CP in the cache doesn't in itself make him guilty; that the prosecution must also show "mens rea" (which translates essentially to "guilty intent", as I understand it).

      If this guy is guilty, then show it, and you can chuck him in jail and take his computer. If he's innocent, give him his computer back.

    3. Re:Okay... by zill · · Score: 5, Informative

      In Canada it's perfectly legal to access CP. The Criminal Code of Canada only prohibits possession of CP, specifically it is an offense to:
      - possess any child pornography (section 163.1(4))
      - make, print, publish or possess for the purpose of publication any child pornography (section 163.1(2))
      - import, distribute, sell or possess for the purpose of distribution of sale any child pornography (section 163.1(3))

      Everything was clearly stated year before this case. I would hardly call that a technicality.

  2. Wow, Savvy Judge by Skarecrow77 · · Score: 5, Insightful

    I didn't know that our legal system understood computers even that well, to distinguish browser cache "oh crap, what the hell did I just see?!" from deliberate "I done saved 3115 photos to my desktop that I probably shouldn't have".

    Of, wait, it's not my legal system, it's Canada's. nevermind. Grats Canadians on having sane judges?

  3. Child porn laws are out of control. by MikeFM · · Score: 5, Insightful

    I think they should stop wasting resources hunting pervs that look at the stuff and spend time hunting the predators that actually produce the stuff. It gets especially silly when they want to arrest someone for looking at cartoon porn - who is the victim? Or my biggest gripes is that they are harassing kids for taking pictures of themselves and sharing them. So they are self-victimizing and we need to give them a felony and register them as a sex offender instead of just telling their parents? I had a girlfriend when I was a teenager and we did more than hold hands and *gasp* there were provocative photos sometimes. Guess I'd better turn myself in.

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    At what price learning? At what cost wisdom? The price is a man's peace of mind, and the cost is his life.
    1. Re:Child porn laws are out of control. by ScottCooperDotNet · · Score: 5, Insightful

      Child porn is the root password to the Constitution.

  4. Is this kind of browsing routine? by HangingChad · · Score: 5, Insightful

    I was wondering if the service personnel browsing dude's computer was routine? I've fixed a lot of PC's without rifling through the users cache and image files, other than if they were infected with a virus. Even backing up user profiles and data, I could tell you which files were infected but not what they were doing with their computer.

    Just wondering why the technician was going through all that stuff? Seems like service people are being a lot more thorough than is required to get the computer working again.

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    That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
  5. Re:This is total horseshit by Anonymous Coward · · Score: 5, Insightful

    I was with you until

    prepare to be on the receiving end of one of the prison's Rectal Olympics games.

    What is it with Americans being so gleeful about prison rape? It's barbaric.

  6. Re:court intelligence by TheRaven64 · · Score: 5, Insightful

    it is most unfortunate that the police signally failed in their duty to secure a conviction for one of the most heinous and despicable offences

    Looking at pictures of naked children is 'one of the most heinous and despicable offences'? Wow. Where do you put things like theft, rape, assault, or murder then? Personally, I'd prefer a thousand people who looked at pictures of naked children on their computers to one person who went around killing people.

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    I am TheRaven on Soylent News
  7. Re:"Making" in the UK, not cache-ing by TheRaven64 · · Score: 5, Funny

    Mr Taco is charged with owning a computer running Microsoft Windows 98 and Internet Explorer 5

    This is a serious crime but, thankfully, it is its own punishment.

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    I am TheRaven on Soylent News
  8. Re:court intelligence by MartinSchou · · Score: 5, Insightful

    Even in the article, you get the idea that simply having links to pornography somehow constitutes reasonable suspicion that you might be a kiddy-fiddler, regardless of whether that pornography is perfectly legal and unassociated with it.

    It's actually a fairly easy test:

    1. Do you have a penis?
    2. Do you have even the remotest access to children?

    If you can answer yes to both of those questions, you are automatically suspected of being a kiddie-fiddler.