SELECTED CASE LAW
In 2006 ABPC 360, which was a preliminary hearing, Sgt. C, a police hate crime investigator, had been monitoring a publicly available white supremacist website. Postings on that website led Sgt. C to Mr. B’s website, a white supremacist website for Canadians in western Canada. Mr. B’s website was publicly available, was not password protected and contained various pages containing articles, downloads, links, and a forum. Sgt. C had the technological crime’s unit make a copy of the sections of the website that were publicly available. Using that information Sgt. C applied for and obtained a search warrant and seized two of Mr. B’s computer towers. The hard drives of these towers contained information linking Mr. B to the Canadian white supremacist website as an administrator and participant in the forum.
Mr. B argued that the police had breached the Criminal Code by intercepting private communications from Mr. B’s computer when they searched the hide drives of the towers. The court held that the emails that were not published on the website were private communications, but the public postings of emails and other content on the public sections of the website were not intended to be private. Further, the court held that the evidence the police obtained from the warrant were copies of the emails saved in file folders on the computer by Mr. B and the police had not intercepted the communication contemporaneously, thus not breaching the Criminal Code.
In determining jurisdiction, the court found the physical location of the server that stores a websites data is not determinative of jurisdiction (the server was located in the United States in this case), but that Canadian courts have jurisdiction where there is a real and substantial link between the offence and this country. Evidence showed that Mr. B used the computers in Canada to access the website, communicate with other users, and monitor and upload content.
The court held that there was sufficient evidence that could meet the provisions of hate propaganda: communication that willfully (intentionally posted the information) promoted hatred against an identifiable group (Jewish people, homosexuals, Black people) and communication not in a private conversation (on a publicly available website targeting other Canadians that was accessed by others). The court looked at four sections of the website: the articles section, the links, downloads, and the forum section and held that there was sufficient evidence that could support a reasonable inference that Mr. B was willfully promoting hatred and to commit him to stand trial.
Criminal Offence(s): Hate Propaganda