R v Morelli: Understanding Criminal Possession of Digital Property
In R v Morelli, 2010 SCC 8, the Supreme Court of Canada (“SCC”) was faced with a number of complex and intertwined legal issues. The child pornography case turned on the validity of a search warrant obtained on a faulty and problematic ITO (Information to Obtain a Search Warrant). The majority and the dissent had dueling interpretations of Canadian and US case law on the reliance on evidence of propensity of behaviour and issues related to stale evidence in ITOs.
The validity of the search warrant in turn informed the constitutional question of whether the appellant’s s. 8 right to be free from unreasonable search and seizure was violated. Finally, the Court had to address the application of s. 24(2) of the Charter, paying heed to its recent revision of the law in R v Grant, 2009 SCC 32. In a split 4-3 decision, the Court quashed the appellant’s conviction, holding that the unreasonable search and seizure violated the accused’s s. 8 rights in a manner that could bring the administration of justice into disrepute.
More generally, the Court also had to grapple with competing justice and fairness considerations. Depending on one’s level of analysis, Morelli is either about child pornography and Urbain Morelli’s particular offence, or it is about the erosion of constitutionally protected rights and the long-term impact of letting stand shoddy police work and casually admitting faulty evidence. The Court’s decision to quash the guilty conviction has been viewed by some as outrageous and problematic, verily because of a failure to appreciate this latter aspect of the case.
In this post, however, I want to focus on the majority and dissent’s treatment of “possession” as it relates to digital property.
The issue of possession arose in this case because the Criminal Code, RSC 1985, c C-46, establishes four distinct offences related to child pornography: making of, distribution of, possession of, and accessing child pornography (ss.163.1(2)-(4.1)). In the ITO seeking a warrant, allegations against the accused were limited to possession of child pornography (s.163.1(4)) and did not mention any allegations of accessing child pornography (s.163.1(4.1)). To issue a search warrant, a justice of the peace reviewing the ITO has to find “reasonable and probable grounds … to believe that an offence has been committed and that there is evidence to be found at the place of the search” (para 39, citing Hunter v Southam Inc,  2 SCR 145). In this case, the justice of the peace had to have reasonable and probable grounds to believe the offence of possession—not the offence of accessing—had been committed.
“Possession” is a defined term in s. 4(3) of the Criminal Code. There are three forms of possession: actual or personal possession, constructive possession, and joint possession. In all three forms, knowledge of possession and control of that which is possessed are essential elements. However, the concept of possession becomes problematic in the context of Internet use because browsers routinely store images accessed online in caches and temporary Internet files.
Even though these are also regularly flushed and regenerated, computer forensics can retrieve images temporarily stored in the cache and later deleted. On the one hand, any automatic pop-ups and images in spam emails could be stored on a computer’s cache. On the other hand, a sophisticated criminal could use the cache as a way to store illegal images. How should possession be determined without penalizing the innocent victim of a pop-up ad or letting a criminal who uses the cache as storage walk away?
The SCC Judgments
The majority’s opinion, authored by Justice Fish, states that “merely viewing in a Web browser an image stored in a remote location on the Internet does not establish the level of control necessary to find possession. Possession of illegal images requires possession of the underlying data files in some way. Simply viewing images online constitutes the separate crime of accessing child pornography …” (para 14 [emphasis in original]). For the dissent, authored by Justice Deschamps, “possession is established if the accused has control over the material for his or her use or benefit …” (para 141). “Control [is] the defining feature of possession, not the possibility of finding data files on a hard drive” (para 144).
Both the dissent and the majority agree upon the knowledge requirement of possession, with most of the discussion relating to control. I don’t think the two opinions are that dissimilar; they are only different in their emphasis. Where Justice Fish emphasizes actual storage and possession (with a quick mention of constructive possession through remote storage), Justice Deschamps focuses on constructive possession and control of images, challenging the notion that actual storage should be an indicator in determining possession.
In doing so, however, the dissent casts too broad a net on what constitutes possession, actual or constructive, of digital property. According to Justice Deschamps, the ability to print, enlarge, or share images, without downloading them, can constitute control (para 145). She cites approvingly the proposition that caches, temporary Internet files, and deleted material can constitute evidence of possession (para 141). I don’t think Justice Deschamps’ view is at odds with the Justice Fish’s majority opinion. However, it is the manner in which it is stated that is concerning.
Justice Fish, for example, makes the same point as follows: “I leave open the possibility, for example, that one could constructively possess a digital file without downloading it to his or her hard drive, using for example a Web-based e-mail account to store illegal material” (para 32). Justice Fish’s example of possible constructive possession is indicative of remote storage or similar mechanisms where the accused stores digital property to the exclusion of others. This seems more akin to possession and control as opposed to the simple ability to print images.
Although the dissent claims that the majority’s view may be at odds with technology, the same can be said about the dissent. Everyone with an Internet connection has the ability to print, enlarge, and share billions of images found in the public Internet domain. This ability should not be the hallmark of what constitutes control; something more ought to be required.
The dissent is correct to fear freezing the legal concept of “possession in time,” to “limit it to certain modes of storage and media,” and to “needlessly handcuff the courts to a concept of possession that is limited to certain technologies” (para 144). However, it may be this concern that prevents the dissent from delving into a practical discussion of control and distinguishing control of child pornography from mere accessing of child pornography. For the dissent, reliance on evidence of downloading images should not be the focus of the inquiry. But at the same time, the dissent mentions the concept of control variously without any concrete discussion of what it entails. If control of digital images is really as broad as the ability to “print, enlarge, and share” images, then the distinction between “accessing” and “possession” is conflated.
Conversely, the majority’s discussion of possession is also not without weakness. Although Justice Fish discusses actual or personal possession at length, the concepts of constructive possession and joint possession when it comes to electronic media is not addressed. Where Deschamps J’s dissent engages in a detailed discussion of constructive possession to broaden the concept of possession, Fish J’s majority decision steers clear of this concept. Like Justice Deschamps, Justice Fish also does not fully develop and elaborate on the concept of “control” in digital cyberspace.
In this sense, both the dissent and majority (somewhat conveniently) steer clear of the heart of the matter when it comes to possession of digital material. For the Court, this may not have been the right case to delve into further discussion and clarification of criminal possession in the cyberworld. However, for those hoping for certainty in the law, this may be considered a missed opportunity. The issue of possession is not only relevant in the criminal offence of child pornography. Access, possession, and control are also central to property law and as we invest more time, energy, and money on the Internet, legal disputes about possession and control versus mere access are likely to arise and become topics of debate in the coming years.