Two Wrongs Don't Equal Mitigation: Thoughts about Party Liability

I am sure most are of the opinion that corporations must shoulder corporate responsibility for their products and services.  By way of example, as a business owner, this Calgary criminal defence lawyer is particularly sensitive to the ostrich-like tendencies of telecommunications companies who permit customers to be daily harassed by fraudsters and Internet marketers. Some scammers even cloak their caller identification using Apps and other technology that allows them to impersonate telephone numbers.  About a year ago I actually received a scam call whose telephone number identified with real digits from a real police service in the United States.

To my mind, if a fraudster can use a phone App, purchased at an App Store or downloaded from the Internet to trick the cellphone company (i.e. Bell, Telus, Rogers ect) and its customers by impersonating a different number, I expect the telecommunications company to upgrade its technology to stop this from happening.  I appreciate there are costs associated with upgrading a system, but to my mind, taking reasonable steps to ensure the safety of those using a service is a minimum basic requirement owed to customers by businesses who offer this type of service.  If a plumber is replacing pipes at your home, you expect them not to flood it. If a telephone call is made with caller ID, I expect the identification to be correct. After all, just as you are not paying for a plumber to flood your home, you aren't paying for an identification service that misidentifies.

It is noteworthy that Rogers Communications has started to identify numbers as “likely spam” and “likely fraud”.  I for one am grateful for this.

Responsibility cuts Both Ways

Responsibility, however, is not a one-way street -- it cuts both ways. Responsibility is not exclusively with the business or service provider.

As customers we also have a responsibility to lawfully use products and services and to reasonably protect ourselves when we avail ourselves of products and services. This means that we should not use a service to harm our fellow citizens. In using a product or service, we should also be reasonably vigilant to ensure that we are not harmed ourselves. In other words, when you get a call from somebody asking for money, don’t just share your credit card information. If you do so irresponsibility, the fault is yours.

The Internet is an example of a service that can be used for a variety purposes, not all of them good. 

It’s not hard to build a website – they are ubiquitous. It's not hard to advertise, to blog or to share information using the Internet.  Though we have free speech in Canada and a veritable playground to exercise it,  it is our duty not to abuse this freedom. When I advertise to you, I have a responsibility. I can't say whatever I want. As a lawyer making submissions in court, I have a responsibility; I can't say whatever I want.  To be sure, I have made mistakes.   

As advertisers, we must make best efforts to sell our product honestly. In Alberta, lawyers have added obligations pursuant to the Law Society Professional Code of Conduct to be circumspect in our marketing. For example, we are not allowed to make claims that we are "the best" or that we are "experts" or "specialists".

Google is a search engine that uses an algorithm to connect users of the Internet with things they are searching for. Sometimes Google is just too good at its job. If you look hard enough, you can find something that is against the law. However, just because we might be able to access illegal websites using the Google search engine, doesn't mean we should and if we do, the fact we did, might not be Google's fault.

Now, I don’t disagree that Google (and other search engines) should shoulder a degree of corporate and social responsibility for their product. However, I also think that as decent people who use the Internet we also have a responsibility not to use it in a way that harms others.

the calgary herald article

The Calgary Herald recently reported a court case where a lawyer defending her client on charges of possession of child pornography blamed Google for her client accessing and possessing illegal material.  As reported, the police investigation  uncovered 30,261 images of child pornography and eight videos on [a] laptop, along with 183,915 images and 2,504 videos on the accused’s hard drive. 

Defence counsel apparently represented to the Court that “…if not for the availability of the illicit content through Internet searches, her client would not be before the court”.  The Calgary Herald reported that the defence lawyer argued that “Google being the chief culprit” was a mitigating factor capable of justifying a lower sentence.

https://calgaryherald.com/news/crime/lawyer-blames-google-senior-child-pornography-collection

In law, this argument is wrong.  Even if Google was a principle to the offence, it is legally irrelevant.

PARTY TO AN OFFENCE

 Section 21 of the Criminal Code of Canada reads as follows:

 21 (1) Every one is a party to an offence who

• (a)actually commits it;

• (b)does or omits to do anything for the purpose of aiding any person to commit it; or

• (c)abets any person in committing it.

In short, this means that even if Google actually committed the offence of being in possession of the child pornography accessed, downloaded and ultimately possessed by the accused, the accused was still in possession of the child pornography; meaning, the accused is nevertheless a principal to the offence. Furthermore, even if Google “aided” the accused by permitting its search engine the ability to locate the child pornography websites (created by others) that were apparently accessed by the accused (“accessing” is a crime in Canada), it in no way mitigates the responsibility for the accused who used the service to conduct the search, the accessing, the downloading and the possessing.  

Now, I am not sure that Google can logically be accused of “abetting” or encouraging the accused to commit offence. I say this because just because Google provided a tool for use, doesn’t mean Google is encouraging people to use the tool for an unlawful purpose. If that was the case, Smith & Wesson would be held criminally liable for every murder perpetrated using its manufactured firearm. Henkel would be accountable for every stabbing using its knife.  Chrysler would accountable for every drunk driving fatality in one of its cars.  I guess Tequila is to blame for a lot of bad decisions too? After all, if people didn't have access to alcohol and a car, they couldn’t drunk drive. If people didn’t have knives, they couldn’t stab and if they didn’t have guns, they couldn’t shoot.

My point is, even if Google and other search engines could somehow be held responsible for people accessing and possessing child pornography by use of their technology, there is no principle in law that legally absolves or reduces responsibility for using the service for an unlawful purpose.  It is not a mitigating factor for the accused to say that somebody else (in this Google) also committed the crime because they were able to use the tools provided by that somebody else to commit the crime.

To fair, as reported by the Calgary Herald, “Google…is one of several tech companies that regularly scour the internet to identify [child pornography] and turn it over to the U.S. National Centre for Missing & Exploited Children, which in turn reports it to police organizations”.  I suspect the Herald writer included this information to show that Google is not endorsing child pornography.  

Now, I am not sticking up for Google.  I am not saying that as a company Google is in any way heroic. To be clear, I think as a search engine Google has far too much power and control over our lives. In my opinion, Google has become more than a mere tool; for it not only dominates information, it lords over businesses, diminishes the imagination and as an essential appendage of the Internet, it's an implement that occupies too much of our time. Through both advertising and algorithm my business and financial well being is at the mercy of Google. 

Notwithstanding my concerns about Google, I still don’t think it’s fair to blame the company for the misuse by others of its product. I am firmly of the view that as responsible Canadians, we have an obligation to responsibly use products and services -- including Google -- and not to use them for an unlawful purpose. 

Conclusion

In conclusion, I am not saying that the accused in the case reported by the Calgary Herald is undeserving of the conditional sentence order or that the sentence is wrong in law.  What I am saying is that finger pointing and blaming the business -- Google --  is not a mitigating factor capable of reducing penalty.  Using Google is not a reasonable excuse for possessing prepubescent pornographic images of children.  

To transfer blame in these circumstances to a third party whose product was used to facilitate prohibited activity is an argument that effectively diminishes personal responsibility on the part of the accused. It is possible that this argument could actually hinder, not help, the accused's request for a lighter sentence. 

Just because there is bridge, doesn’t mean we jump. Just because a product might be used for a nefarious purpose, does not mean the product was designed for that purpose or that the product’s creators are to be blamed for choices made by its customers (or others) to use their product improperly or illegally. In my opinion, neither party liability nor common sense supports this conclusion.

To be fair to this accused, it appear he actually demonstrated the best insight: “I now realize that through my actions on the internet I became part of the problem.”

The Supreme Court of Canada would agree.

As stated in R. v. Sharpe, 2001 SCC 2: "Child pornography is harmful whether it involves real children in its production or whether it is a product of the imagination".  Sharpe essentially says that it is the people who access child pornography who support an industry of harm to children. Therefore, even if Google shared in this responsibility, it is still the person accessing the materials that furthers the hurt.    

Google is a service that allows users access to a universe of information. It is our responsibility to access that information, within that universe, lawfuly and responsibly. 

David Chow

Calgary Criminal Lawyer

www.calgary-law.ca

USING GOOGLE TO FIND YOUR CRIMINAL DEFENCE LAWYER

Successfully defending a criminal case requires your lawyer to understand how the law operates.  Defending criminal cases is not only about a lawyer telling the client what he or she wants to hear. The best criminal defence lawyers aren't afraid to deliver hard truths.  

If you are in trouble with the law and in need of a criminal defence lawyer, make inquiries, do your research and don't settle for a lawyer who is only trying to make you feel good just get your retainer.  Hire a lawyer who is knowledgeable about the law and will tell you the truth about your case.  A lawyer who makes the wrong argument may do more harm than good. 

Don't trust an advertisement. Do not abdicate the use of due diligence and good sense when you are looking for a lawyer. Don't easily trust 5 star reviews. Some businesses are paying for them.  I know this to be true.

Also, be careful about placing too much weight on a negative review. Some lawyers do a lot of good work and occasionally, no mater how hard they try, just can't meet the expectations of the client.  

Remember, when looking for a lawyer, there may be some reviewed and advertised who are not as advertised. There are also some lawyers who aren't advertising at all but are worth every penny you spend on them. 

I wish you all the best in your search.