Crown appeals revenge porn ruling
Judge said ‘accessing’ is not ‘stealing’
The Crown is appealing a Saskatoon judge’s decision that a man who posted revenge porn photos online didn’t break the law.
The notice of appeal alleges the judge made a number of errors in coming to her decision that the Crown didn’t prove Darren Maurer stole the nude photos of his ex-girlfriend that he posted online.
In her ruling in May in Saskatoon provincial court, Judge Shannon Metivier said Maurer’s actions were “despicable” and perhaps “morally wrong” but not illegal under the Criminal Code.
The case
Maurer, 38, dated the complainant in the case for about six months, beginning in February 2012. Before she dated Maurer, she was in another relationship in which she sent nude pictures of herself to her boyfriend. She deleted the photos from her computer when that relationship ended.
In August 2012, the woman’s laptop was damaged and she asked Maurer — who had taken a two-year computer programming course and worked in various computer-related jobs — for help. He agreed and quickly determined the woman’s best option would be to buy a new laptop and sell the old one for parts.
Maurer testified that the woman told him he could keep the laptop for parts if he helped her buy and set up a new one. While he was transferring the data, he found the nude photos.
Maurer testified the woman told him he could keep the photos, but she testified that she was upset and asked him to delete them.
After an argument in September, Maurer threatened to post the photos online. He carried out the threat on Oct. 1, 2012, and distributed flyers in the woman’s workplace with a link to the website. The website was taken down about 12 hours later, after the woman’s lawyer contacted Maurer.
The judgment
Maurer was charged with using a computer with the intent to commit the offence of stealing the personal data of the complainant and posting it online without her permission. He was also charged with mischief by wilfully stealing the data and posting it online without her permission.
Metivier said in her written judgment that the Crown had to prove Maurer stole data in order to prove either of the charges against him. She referenced a 1988 Supreme Court of Canada decision that found confidential information was purely intangible and not property, as well as a 2006 Ontario case regarding credit card information that found “the mere accessing and sharing of such data cannot constitute ‘stealing.’ ”
Metivier referenced the federal government’s cyberbullying bill, Bill C-13, which, if enacted, would address the gap in legislation “concerning the nonconsensual distribution of intimate images” by creating the new offence of distributing an intimate image of someone without consent.
However, under the wording of the charge against Maurer and the law as it stood in 2012, Metivier ruled the Crown failed to prove Maurer stole the photos and found him not guilty.
The appeal
In his notice of appeal, Crown prosecutor Michael Segu alleges the judge erred by “misinterpreting the charges” and “determining that data is not capable of being stolen or converted.”
The judge also erred “by holding the Crown was required to prove the offence was committed by ‘stealing’ data and posting it online when proof of posting it online without permission was sufficient,” the notice of appeal says.
Maurer’s lawyer Chris Lavier said he’s confident Metivier’s ruling will be upheld on appeal.
“The way that the charge was framed related to theft of data and it was clear from the evidence of the complainant (that) the accused in this case hadn’t stolen the data,” Lavier said in an interview.
“There’s a further issue that even if the appeal court were to find the data was stolen, the Supreme Court has stated that data isn’t capable of being stolen within the meaning of the Criminal Code.”
A date for hearing the appeal in Saskatoon Court of Queen’s Bench has not been set.