Definition of Terms Relating to Transactions and Transferences

From Criminal Law Notebook
This page was last substantively updated or reviewed November 2018. (Rev. # 81200)

General Principles

There are several electronic transmission based offences with actions (actus reus) relating the distribution of electronic files.

They include:

Making Available

Making Available and Peer-to-Peer Filesharing

The act of sharing a file through file-sharing software will make out the actus reus of making available.[1] Making available is made out by a person who downloads the file "which is thereafter publicly accessible through file sharing". The only overt act required is that of downloading the file using file sharing software that can make it accessible. There is effectively no difference between this and making the file accessible on a website.[2]

Accessible Files

A accessible file is one that is stored on a hard drive and the accused is able to access at the time the item was seized.[3]

  1. R v Benson, 2010 SKQB 459 (CanLII), SJ No 758, per Gerein J, at para 30
  2. R v Spencer, 2011 SKCA 144 (CanLII), 283 CCC (3d) 384, per Caldwell JA, at para 80
  3. R v Mollon, 2019 BCSC 423 (CanLII), per Crossin J, at para 29

See Also