R. v.
Leahy
citation(s): (1988), 21 C.P.R. (3d) 422 (Ont. Prov. Ct.)
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R. v.
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by Donald M Cameron, Aird & Berlis
Operation of a software evaluation club business may constitute fraud under the Canadian Criminal Code..
Leahy operated a software evaluation club in Toronto. The club sold copies of popular software packages for personal computers, and also provided copies of the associated manuals on a rental basis.
The purchaser of the program was required to sign an agreement acknowledging that the material provided was solely for the purposes of evaluation and that after evaluation it was the obligation of the "member" of the club to erase the computer disk containing the software. The price charged for the software was $10 to $25 per disk.
In June, 1988, a preliminary hearing was held in which it was determined that there was sufficient evidence to commit the accused to trial on the charge of fraud
The Court considered the question of whether the facts as set out above constituted fraud. The R. v Olan case was followed in defining the elements of criminal fraud. The Court held that "the hallmarks of fraud are deception, cheating and underhandedness." (p. 429)
It was found that the operation of the evaluation club amounted to deliberate dishonesty or conduct involving other fraudulent means as the club was a mere facade for the real activity which was the selling of unauthorized copies of the manufacturers' software. Evidence was also found of the economic deprivation of the software manufacturers.
The uncertainty of Canadian copyright law (prior to the amendments to the Act) was not held to be a justification for the accused's activities.
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