SELECTED CASE LAW
In 2015 SKQB 175 Mr. M, who had experience working with computers, offered to fix his girlfriend’s laptop when it stopped working. After determining that the laptop could not be fixed, M offered to sell the laptop for parts and transfer his girlfriend’s files to a new computer. While working on her computer, M found and kept nude photographs that she had sent to a previous boyfriend. When the couple later broke up, he posted the photographs online and distributed them to the victim’s work colleagues. M was ultimately charged with theft.
At trial, the Court held that data was not property capable of theft. In the alternative, the Court determined that if data could be stolen, M had nonetheless not committed theft because he did not intend to deprive his former girlfriend of her interest in the nude photographs. Because the elements of the theft offence were not made out, M was acquitted at trial.
The Saskatchewan Court of Queen’s Bench affirmed the trial judge’s findings and held that data could not be the object of theft because data theft does not deprive the victim of the data itself. Both the trial judge and Court of Queen’s Bench acknowledged that M’s conduct was criminalized in Bill C-13 (non-consensual distribution of intimate images), but noted that the law was not in force when M distributed his former girlfriend’s photographs online. Both courts ultimately found M’s conduct despicable but not criminal in the circumstances.
Also see 2014 SKPC 118 (Trial).
Criminal Offence(s): Mischief in Relation to Data