The Calgary Police Service received a complaint that someone was illegally selling software (valued at $17,000) on Kijiji for $500.00. An investigation was started and the police ultimately purchased a copy of this software from a person they believed to be D.J.. In doing so they were directed to make an e-transfer to a specified account, which they did. A production order was obtained for the bank information relating to this account, which was in the name of D.B. A search warrant was ultimately sought and obtained for D.J.’s house and all of his computer devices were seized. A forensic analysis of the computer devices was conducted. The results of the production order and the forensic analysis gave police the requisite grounds to charge D.B. with two counts of theft contrary to s. 334 of the Criminal Code and charges under the Copyright Act. The potential consequences faced by D.B. included jail and up to a million dollar fine. Ms. Fagan scheduled a 4 day trial in Provincial Court. After lengthy negotiations with the Crown Prosecutor, it was agreed that D.B. would plead guilty to a Copyright Act charge and all criminal charges would be withdrawn. A summary disposition date was scheduled. The Crown argued that D.B. should have a criminal record, pay a fine and be subject to a term of probation. Ms. Fagan argued that her client should not have a criminal record (i.e. that the court should impose a conditional discharge) and that all charges against her client should ultimately be withdrawn.
BOTTOM LINE: Ms. Fagan was successful in having all criminal charges against her client completely withdrawn, and the Copyright Act charges against her client being withdrawn at the conclusion of a term of 12 months. To Ms. Fagan’s knowledge (and the Crown and Judge involved in this matter) there are no reported (written and published) decisions where this outcome has been achieved.