R v Cockell (Child-luring Under the Criminal Code)

The Alberta Court of Appeal recently reversed the decision (in part) of the trial court judge in R v Cockell, holding the defendant not guilty on three counts of child luring via a computer system contrary to sections 17.2(1)(a), (b) and (c) of the Canadian Criminal Code. The appeal was from a conviction of 11 counts relating to, in addition to the child luring charges, possession and the making of child pornography, sexual assault, sexual interference, and abduction with respect to two young girls. The Appeal Court’s decision to reverse the trial court’s decision as to the luring charges hinged on the finding that a Blackberry Smartphone did not fall within the definition of a “computer system” as set out under section 342.1(1) of the Criminal Code. Section 342.1(1) provides the following”: “computer system” means a device that, or a group of interconnected or related devices one or more of which,

1. contains computer programs or other data, and
2. pursuant to computer programs, (i) performs logic and control, and (ii) may perform any other function.

In the appeal, the defendant argued that there was no evidence that the device he is said to have used in order to “lure” one of the complainants, a Blackberry Smartphone, was a “computer system”. The Court of Appeal agreed stating:

“In summary, the only reliable evidence in relation to the means of communication relating to the luring counts was the appellant’s text messages to DP from his Blackberry. There was no reliable evidence that any of the parties’ exchanges by computer, before they started text messaging, was for the purpose of facilitating one of the predicated sexual offence referred to in s 172.1(1)(a), (b) or (c) of the Criminal Code. There was no expert evidence as to the exact nature of a Blackberry, nor which showed it contained computer programs or other data, and that pursuant to those computer programs performed logic and control or any other function. It was an essential element of the offences under s 172.1(1) of the Criminal Code which the appellant was charged with, that he communicated with DP by means of a computer system, an element which the Crown was required to prove beyond a reasonable doubt; see R v Legare, 2009 SCC 56, [2009] SCR 51 at paras 36-37.”

The defendant’s appeal was dismissed with respect all counts relating to the possession and the making of child pornography, and charges relating to the sexual assault and abduction of one of the complainants. For more commentary see: http://tinyurl.com/l7yfuf7 Summary by: Thomas Wong