🚀 go-pugleaf

jmanso19@skypoint.com (Jim Manson) wrote:

>jay@inforamp.net (Xanlithe) wrote:

>>In article <DuoAwo.CrB@ferret.ocunix.on.ca>, clewis@ferret.ocunix.on.ca says...
>>>
>>
>>>>>I don't think this is a 'mockery of the truth'. iStar are simply taking
>>>>>the steps necessary to reduce their legal liability to an acceptable
>>>>>business level. I am not sure what you mean about political correctness.
>>>>>As near as I can make out, the Criminal Code provisions preceded that form
>>>>>of censorship.
>>>
>>>>       If Istar wished to reduce their legal liablity, then they should reduce 
>>>>their exposure.
>>>
>>>Surprise, that's what they thought they did.
>>
>>	As I'm suggesting in countless posts, they didn't want to really reduce 
>>their exposure to legal ramifications, just reduce their exposure to political/moral 
>>considerations. They made a political/moral statement by eliminating those 
>>particular groups. They reduced their legal position by not a whit.

>Unless Canada's laws are completely different than most of the rest of
>the world they did improve their position, contrary to your belief.

>The basis for being able to prosecute them would be *intent* to be a
>party to distributing illegal material. Carrying a news group called
>alt.binary.erotic.picture.children  shows intent to allow the
>distribution of pictures of child pornography. The name 
>kinda gives it away. The same picture being passed through
>alt.binary.misc (or some such) may be just as illegal of a photo
>but the ISP cannot be shown to have known about it. 

>What you people seem to be missing is that nobody is
>claiming that passing of illegal photo's alone is enough to
>trigger the law, carrying groups that are *designed* specifically 
>to pass those same photos and having those photos passed
>will trigger the law. It's all about intent. 

>Did iStar totally insulate themselves from potential problems? 
>Nope- and they know it. 

>Did they reduce their potential exposure? 
>Yep. 

>Are people allowed to do that, especially after seeking legal advice?
>Yep. 

>Do they have to wait until they're arrested before taking potential
>problems seriously? 
>Nope. 

>You are drawing conclusions of their mindsets and intentions based on
>a misunderstanding of the legalities. You may not like what they did,
>but let's not get into a conspiracy mindset here.

Mr. Manson is absolutely correct in each of his points.  The standard
of intent prescribed by the Criminal Code is that the accused
"knowingly" engaged in the offense.  The Supreme Court of Canada has
held that "knowingly" means that  an individual possessing or
distributing sexually explicit material must, at the very least, be
wilfully blind to circumstances which would indicate that there may be
illicit material among the otherwise lawfully explicit material. 

From the headnote of R. v. Jorgensen (1995), the Supreme Court of
Canada:

 It is a general rule of statutory construction that the term
"knowingly" used in a criminal statute applies to all elements of the
actus reus, and there is nothing in the language of s. 163(2), or in
its legislative history, to suggest that the word "knowingly" should
be given a restricted meaning.  In including the word "knowingly" in
s. 163(2), Parliament chose to set an onerous standard of proof
in the case of sellers or retailers.  Thus, to satisfy the mens rea
requirement of the offence under s. 163(2), the Crown must show
not only that the retailer was aware that the subject matter of
the material had as its dominant characteristic the exploitation
of sex, but also that he knew of the specific acts which make the
material obscene in law.  Material is generally obscene if it
involves explicit sex with violence, or explicit sex which is
degrading or dehumanizing.

and:

 Further, proof that a retailer had "knowledge" that he was selling
obscene material does not necessarily require the Crown to prove that
he actually viewed the obscene material.  "Knowledge" of the
obscene character of the film can be acquired by means other than
direct viewing.  In this regard, in appropriate circumstances, the
Crown can avail itself of the principles of wilful blindness.
Deliberately choosing not to know something when there are
reasons to believe further inquiry is necessary can satisfy the
mental element of the offence.  (end of quote from headnote)

Considering the reasons in Jorgensen there is no reason to believe
that the actions taken by iSTAR was anything other than an attempt to
eliminate their exposure under the Criminal Code.  I would advise any
internet provider to follow iSTAR if they wish to avoid the
possibility of facing criminal prosecution.

Morton M. Goldmacher
Barrister and Solicitor