Mischief

CultureLawWeb & Tech

On March 15, 2017 the US Department of Justice announced that they were laying charges against four people accused of hacking four hundred Yahoo email accounts in 2014. Two of the accused are Russian intelligence officers and a third was in the US but has since fled to Russia. The fourth is one of our own, Hamilton native Karim Baratov, age 22.

Baratov has been roasted by media and law enforcement because he openly flaunted his love of luxury items online. When people asked how he could afford these things, his reply was that he was providing online services.

In the court of public opinion, it sounds like Baratov is guilty of the crimes he’s accused of, even though “online services” could mean everything from sexy video chats to tech support.

This article is not about Baratov. He is currently in jail awaiting his bail hearing in April and plans to fight his extradition to the US where he would face charges of conspiring to commit computer fraud and abuse, conspiring to commit access device fraud, conspiring to commit wire fraud and aggravated identity theft.

This article is about how we address hacking in Canada.

It should be said right off the bat that not all hacking is illegal. One of the definitions of hacking is writing computer programs for fun, which is not illegal if the programs are harmless.

The other definition of hacking is the one most people are most familiar with, which is the act of getting into a computer illegally.

Though it’s never called hacking in the Canadian Criminal Code, the section dealing with the crime is the one used to address mischief. That’s right; the laws against hacking are in the same place you find the law punishing leaving flaming bags of poop on doorsteps on Devil’s Night.

The crime of hacking in Canadian law is called “Mischief in relation to computer data” and is defined as willfully:

  • Detroying or altering computer data
  • Rendering computer data meaningless, useless or ineffective
  • Obstructing, interrupting or interfering with the lawful use of computer data
  • Obstructing, interrupting or interfering with a person in the lawful use of computer data or denying access to computer data to a person who is entitled to access to it.

The punishments are the same as for any other kind of mischief crime. If the act put a life in danger, you’re liable to spend life in jail. If the crime caused damages worth five thousand dollars or more, it’s an indictable offense with a maximum sentence of ten years in jail or a summary conviction which would mean six months in jail or a five thousand dollar fine. If the value of the damage was less than five thousand dollars, you’re facing either a summary conviction or an indictment with up to two years in jail.

Like many crimes, hacking is often done with intent to commit other crimes like fraud, theft, and unauthorized uses of credit card data. A person guilty of hacking could therefore also be found guilty of additional crimes, some of which – like fraud – carry stiffer penalties than mischief.

Canadian law also holds a person responsible if they counseled or made it easier for someone else to commit a crime and they can face the same penalty as the perpetrator who actually did it. They can also face those penalties if they knew or should have known the crime could be committed as a result of their actions or lack thereof.

Though Canadian governments have been criticized as being ill equipped to tackle computer crime, the government seems to be doing its best not only to protect itself from cyber-attacks but also to teach us to protect ourselves.

In 2010, the Harper Government launched the Cyber Security Strategy outlining a long term national plan to deal with computer crime. The website getcybersafe.gc.ca was created by Public Safety Canada and is full of guidelines for ordinary citizens and businesses with the goal of keeping Canadians safer by increasing awareness of common online threats and how to fight them. The Canadian Anti-Fraud Center was created by a joint effort by the RCMP, Ontario Provincial Police, and the Competition Bureau to fight mass marketing fraud online and is regularly updated with information regarding popular scams.

Technology is advancing at a greater pace than ever and our governments are trying to catch up to protect the victims. The problem with their initiatives is that they seem to place most of the pressure to protect against cybercrime on potential victims, which could lead to victim-blaming even in cases where, due to age or infirmity, a person may not be tech savvy enough to take every precaution. Their plan needs work to put the onus back on law enforcement to protect against cyber-crime back on those charged with protecting us, but at least it’s there.

LawNews

Protests, like potholes, are a year-round occurance in Montreal. The economy is in the toilet, tuition costs are on the rise, and Prime Minister Trudeau has turned his back on the young people whose coattails he rode into office.

Young people voted for Trudeau hoping that he would help stabilize employment in Canada only to be told to get used to temporary, low paying jobs without benefits. Quebeckers voted for Philippe Couillard hoping to do away with the Parti Québecois’ message of aggressive xenophobic secularism and language issues only to find the provincial government raising the language and signage disputes people are sick of. Municipal austerity measures are coming at the expense of the pensions our blue collar workers worked so hard for.

Votes don’t seem to count anymore and the cynicism pushed by bitter columnists is proving true. With the government ignoring the reason they were voted into office, people are forcing the government to listen by taking to the streets.

Everyone from students to cops to healthcare workers to Native leaders are taking to the streets with pickets, hoping to have their voices heard. Like the potholes, the City of Montreal has a pathetic track record of dealing with protests, reverting to persecution rather than reasonable negotiation. To our elected officials, protesters are not frustrated human beings with legitimate concerns but noisemakers and disruptors.

Laws Used Against Protesters

With the cops using their authority to assault people desperate to be heard, it’s time to look at the laws the government uses and overuses to suppress dissenters.

Let’s start with the Canadian Criminal Code.

Protesters are commonly charged with assault, harassment, mischief, unlawful assembly, and obstructing police officers. Since I addressed mischief in my piece on Devil’s Night, let’s look at the rest.

Assault is defined as applying force directly or indirectly to another person without their consent. The penalty is up to five years in prison unless the person is tried on summary conviction, which carries a lesser penalty. If a weapon is used in the assault, the penalty increases to a maximum of ten years, or if tried on summary conviction, a minimum of eighteen months. Since the definition of assault is so vague, it can range from hitting or kicking, to simply pushing and shoving.

Harassment is the act of engaging in conduct that would make a person feel harassed, which includes following them, repeatedly communicating with them, and watching their workplace. As protests often occur in front of government buildings where elected officials work, and repeated communication is the only way they feel they can be heard, it is far too easy for those ignoring them to call it harassment. Harassment is a serious charge, with a maximum penalty of ten years in prison, and its broad definition bears the risk of overuse.

Unlawful Assembly is when three or more people get together for a common purpose and their group causes the surrounding neighborhood to fear a disturbance of the peace. Unfortunately many protests, even peaceful, are noisy. An unlawful assembly charge, which fortunately only runs the risk of a summary conviction, is applied willy nilly by authorities to punish protesters.

Obstructing a police officer is a charge that became popular against protesters this past summer when people stormed the National Energy Board (NEB) hearings to voice their dissent against the proposed Energy East pipeline. To be convicted of this charge, the prosecution has to prove beyond a reasonable doubt that a person resisted, willfully obstructed, or did not assist a public or peace officer in the execution of his or her duties. The penalty is up to two years in prison unless there is a summary conviction.

Protesters are also punished with municipal bylaws.

The municipal bylaw used to punish protesters is bylaw P-6, formally called the “By-law concerning the prevention of breaches of the peace, public order and safety, and the use of public property”.

The bylaw was added to by former Mayor Gerald Tremblay in 2012 following the massive student protests against tuition hikes. Article 2.1 of the bylaw requires assemblies, parades, or gatherings in public places to disclose their itineraries to authorities prior to the event. Article 3.2 of the bylaw makes it illegal for protesters to cover their faces with a scarf or hood without a reasonable motive.

Both of these articles were ruled unconstitutional by Judge Chantal Masse of the Superior Court on June 22, 2016, following a successful challenge by Julien Villeneuve, a CEGEP professor who attended the protests in a panda costume.

Laws that Protect Protesters

We know about the laws used to punish protesters. Now let’s talk briefly about the laws meant to protect them and all of us.

The Canadian Charter of Rights and Freedoms entrenched in our constitution guarantees freedom of thought, opinion, and expression. It guarantees freedom of peaceful assembly, and freedom of association. It also guarantees the right against arbitrary detention. In spite of this, protesters are arrested left and right and their protests, no matter how peaceful, are punished as being unlawful.

Then there’s the Quebec Charter, a quasi-constitutional law entrenched in Quebec legislation. Like the Canadian Charter, it guarantees freedom of assembly and association.

Our criminal laws are also in place to protect, yet they are used to suppress protesters not keep them safe. Police officers who act prematurely by shooting rubber bullets and smashing people with batons rarely see any consequences for their actions, confirming the protesters’ belief that they are there to persecute, not protect.

Protests may be a public nuisance but they are a necessary one. As long as the government refuses to listen to the people who elected them, the protests will continue. As long as people feel voiceless, they will take to the streets to make sure they are heard.

For every time the government betrays the ones who voted for them, hundreds pickets will spring up. The act of listening and communication is the key to most conflict resolution. If politicians want the protesting to stop, they have to start listening.

* Featured image by Cem Ertekin

CultureLaw

Halloween is this coming Monday and we can expect a hearty mix of cute kids in costumes going door to door for candy and drunken idiots who think a cheap dollar store mask excuses obnoxious behavior. Despite the occasional incidents of idiocy, Halloween is by no means dangerous. The holiday the night before is an entirely different matter.

Devil’s Night, also known as Mat Night here in Quebec, is a night for pranks and mischief. It is celebrated throughout Canada and US and is believed to date back to Ireland in the 1880s. Though originally a night for fairies and goblins, it has evolved into a night for pranksters. Some believe the custom of handing out candy on Halloween developed in an attempt to appease jokers with sweets in order to spare their property.

In Quebec, Mat Night used to be celebrated by taking people’s doormats and switching them, ringing doorbells and running off, and by leaving a flaming bag of dog feces on someone’s doorstep. For those unfamiliar with this particular prank, the prankster fills a paper bag with dog poo, puts it on someone’s doorstep, lights it on fire, rings the doorbell, and runs away. When the occupant opens the door and sees the fire, they will presumably stamp it out, thus ruining their shoes.

Other common Devil’s Night pranks include egging people, toilet-papering houses, dumping rotten produce on front porches, smashing pumpkins, covering cars in shaving cream, and tipping garbage cans. In the US, the nature of the prank depends on the location.

In rural areas, pranksters tip outhouses and open the gates of livestock pens. In Detroit, Devil’s Night is a night for arson and was undoubtedly the inspiration for the setting of the 1994 film The Crow. Arson is so prevalent on this night in Detroit that in 2008, the mayor recruited thirty thousand volunteers to try and prevent the mayhem.

Mischief in Canada comes with a price. Laws against mischievous behavior make what might seem like a harmless prank an indictable offense with serious penalties.

The crime of mischief is a property offense, meaning it’s a crime that affects people’s stuff, not their person. In order to be guilty of the crime of mischief, an offender has to have willfully destroyed or damaged property, rendered the property “dangerous, useless, inoperative or ineffective”, obstructed, interrupted, interfered with the lawful use, enjoyment or operation of the property, or interfered with a person’s lawful use, enjoyment, or operation of it.

Mischief laws also apply to computer-related offenses. That means that if you’re the type to stay in on Devil’s Night and prefer to pull your pranks from behind your computer screen, you might still be criminally liable.

The law specifically prohibits the willful destruction or alteration of computer data rendering data meaningless, useless, or ineffective, obstructing, interfering, or interrupting the lawful use of the data, and interfering with a person’s lawful use of said data or denying that person access to information that they are legally entitled to.

The penalty for mischief varies according to the degree of danger involved. If the prank endangered someone’s life, the prankster is liable for life in prison. If the prank damaged property worth five thousand dollars or more, the prankster is looking at a prison stay of up to ten years unless the prosecution agrees to a summary conviction, which has a lesser penalty. Where the value of the damaged property is less than five thousand dollars, the maximum penalty is two years imprisonment unless you get a summary conviction.

If you play a prank at a location that has meaning for society, the penalties for mischief change.

Religious properties such as churches, mosques, synagogues, temples, cemeteries associated with them, and objects on their grounds are protected by specific anti-mischief laws. If the prank was motivated by bias, prejudice, or hate based on religion, race, colour, or ethnic origin, the offender is looking at a maximum prison sentence of ten years, regardless of the value of the property. Just as in other mischief offenses, it is possible to get a summary conviction, but unlike regular mischief offenses, a summary conviction for this kind of prank comes with a maximum sentence of eighteen months.

The penalties for acts of vandalism on War Memorials vary. If the prosecution opts to charge the prankster with an indictable offense, the offender is looking at a maximum of ten years in jail. If it’s a summary conviction, the penalty is a maximum of eighteen months. Unlike other mischief offenses, this one comes with a minimum punishment: a fine of a thousand dollars for a first offense, at least fourteen days in jail for a second offense. Every subsequent offense will get a prankster thirty days in the slammer.

As with everything, there are good, harmless pranks, and there are bad ones. The good ones are funny for all involved, prankster and victim, and require a maximum cleanup of a hose, some water, and maybe a trash can. The bad ones leave permanent damage to both public and private property and to our collective consciousness by making people frustrated, angry, and feeling unwelcome and unappreciated.

This Devil’s Night, in the wake of heated cultural and political debates, economic strife, and disputes between young and old, it is time to remember what the holiday is really all about: a bit of harmless fun to keep people on their toes.

* Featured image via YouTube screengrab