Canadian court clears man of counseling bomb use

OTTAWA, Canada (Reuters) -- A Canadian may have used the Internet to sell bomb-making recipes and a how-to burglary guide, but he was not guilty of counseling others to commit crimes, the Supreme Court of Canada ruled Friday.

In Canada, it is a crime not only to make and detonate bombs but also to counsel another person to do so.

In an e-mail solicitation, the accused, Rene Hamilton, had offered for sale a package of 200 Internet files that he had himself purchased, including "bombs.txt," "How to Break into a House.txt" and "visa hacking.txt."

But Canada's top court agreed with a lower trial court ruling that Hamilton did not read all the files he had collected and had offered for sale in his solicitation.

"The trial judge appears to have accepted Mr. Hamilton's evidence that he did not read the files relating to bombs and to burglaries and found as a fact that he had no intention to induce the recipients of his 'teaser' (e-mail) to either ... build bombs or commit burglaries," Justice Morris Fish wrote in the court's the 6-3 majority decision.

Fish noted that the Supreme Court was not authorized to review findings of fact in lower court rulings.

The case was heard well before the July 7 bombings in London, England, and the decision makes no reference to Western concerns about home-made bombs. But the court said it would leave any attempt to tighten up restrictions on Internet sales to Parliament.

"Even if they were minded to do so, the courts cannot contain the inherent dangers of cyberspace crime by expanding or transforming offenses, such as counseling, that were conceived to meet a different and unrelated need," Fish wrote.

"Any attempt to do so may well do more harm than good, inadvertently catching morally innocent conduct and unduly limiting harmless access to information."

In his e-mail solicitation, Hamilton did not refer to bomb-making possibilities or to the burglary instructions. Instead he highlighted a software program that can generate valid credit card numbers.

While accepting the lower court's decision that Hamilton did not have the intent of encouraging people to make bombs or break and enter houses, Fish did find that Hamilton's e-mail clearly encouraged credit card fraud.

He upheld Hamilton's acquittal on counseling to make bombs and to commit burglaries -- for which he faced a maximum sentence of 14 years -- but ordered a new trial on counseling to commit fraud. That carries a maximum sentence of one year.

The court's three-member minority said Hamilton should walk free on all counts, including the credit-card fraud charge.

Writing for the minority, Justice Louise Charron said there may well be reason for limiting diffusion of the most dangerous expressions over the Internet.

"However, it is my view that the remedy does not lie in an expansive interpretation of the offense of counseling," she said.

"The offense of counseling, applying as it does to all crimes, is too blunt an instrument to address this situation without imperiling a range of harmless and/or valuable expression."