Definition of Terms Relating to Transactions and Transferences
General Principles
There are several electronic transmission based offences with actions (actus reus) relating the distribution of electronic files.
They include:
- Section 327 (possession, etc., of device to obtain use of telecommunication facility or telecommunication service) refers to a person who "sells, offers for sale, imports, obtains for use, distributes or makes available".
- Section 162(4) (distribution of voyeurism materials) refers to a person who "prints, copies, publishes, distributes, circulates, sells, advertises or makes available".
- Section 162.1 (distribution of intimate images) refers to a person who "publishes, distributes, transmits, sells, makes available or advertises".
- Section 163.1 (Distribution and Making Child Pornography)
- Section 171.1 (making explicit material available to a child) refers to a person who "transmits, makes available, distributes or sells".
- Section 402.2 (identity theft) refers to a person who "transmits, makes available, distributes, sells or offers for sale".
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]
- ↑ R v Benson 2010 SKQB 459 (CanLII), per Gerein J at para 30
- ↑ R v Spencer, 2011 SKCA 144 (CanLII), per Caldwell JA at para 80