First Session, Forty-fourth Parliament, 70-71 Elizabeth II – 1-2 Charles III, 2021-2022-2023

HOUSE OF COMMONS OF CANADA

BILL C-370 An Act to amend the Criminal Code (unlocking of electronic device)

FIRST READING, December 7, 2023

This enactment amends the Criminal Code to provide that a judge may make an order compelling a person to unlock an electronic device.

1st Session, 44th Parliament, 70-71 Elizabeth II – 1-2 Charles III, 2021-2022-2023

HOUSE OF COMMONS OF CANADA

BILL C-370

An Act to amend the Criminal Code (unlocking of electronic device)

His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

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Order — Unlocking of Electronic Device

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Definitions

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487.‍0921 (1) The following definitions apply in this section.

data has the same meaning as in section 487.‍011.‍ (données)

electronic device includes

• (a) a computer program, a computer system or computer data within the meaning of subsection 342.‍1(2); and

• (b) a data storage device.‍ (dispositif électronique)

judge has the same meaning as in section 487.‍011.‍ (juge)

offence means an offence contrary to, any conspiracy or attempt to commit or being an accessory after the fact in relation to an offence contrary to, or any counselling in relation to an offence contrary to

• (a) any of the following provisions of this Act:

  • (i) section 82 (possessing explosives),

  • (ii) section 82.‍3 (possession, etc.‍, of nuclear material, radioactive material or device),

  • (iii) section 82.‍4 (use or alteration of nuclear material, radioactive material or device),

  • (iv) section 82.‍5 (commission of indictable offence to obtain nuclear material, etc.‍),

  • (v) section 82.‍6 (threats),

  • (vi) section 83.‍02 (providing or collecting property for certain activities),

  • (vii) subsection 83.‍03(1) (providing, making available, etc.‍, property or services for terrorist purposes),

  • (viii) section 83.‍04 (using or possessing property for terrorist purposes),

  • (ix) section 83.‍18 (participation in activity of terrorist group),

  • (x) section 83.‍181 (leaving Canada to participate in activity of terrorist group),

  • (xi) section 83.‍19 (facilitating terrorist activity),

  • (xii) section 83.‍191 (leaving Canada to facilitate terrorist activity),

  • (xiii) section 83.‍2 (commission of offence for terrorist group),

  • (xiv) section 83.‍201 (leaving Canada to commit offence for terrorist group),

  • (xv) section 83.‍202 (leaving Canada to commit offence that is terrorist activity),

  • (xvi) section 83.‍21 (instructing to carry out activity for terrorist group),

  • (xvii) section 83.‍22 (instructing to carry out terrorist activity),

  • (xviii) section 83.‍221 (counselling commission of terrorism offence),

  • (xix) section 83.‍23 (harbouring or concealing),

  • (xx) section 83.‍231 (hoax — terrorist activity),

  • (xxi) section 151 (sexual interference),

  • (xxii) section 152 (invitation to sexual touching),

  • (xxiii) section 153 (sexual exploitation),

  • (xxiv) subsection 160(3) (bestiality in presence of or by a child),

  • (xxv) section 163.‍1 (child pornography),

  • (xxvi) section 170 (parent or guardian procuring sexual activity),

  • (xxvii) section 171.‍1 (making sexually explicit material available to child),

  • (xxviii) section 172.‍1 (luring a child),

  • (xxix) section 172.‍2 (agreement or arrangement — sexual offence against child),

  • (xxx) section 235 (murder),

  • (xxxi) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm),

  • (xxxii) section 273 (aggravated sexual assault),

  • (xxxiii) section 273.‍3 (removal of child from Canada),

  • (xxxiv) section 279.‍01 (trafficking in persons),

  • (xxxv) section 279.‍011 (trafficking of a person under the age of eighteen years),

  • (xxxvi) section 280 (abduction of person under sixteen),

  • (xxxvii) section 281 (abduction of person under fourteen),

  • (xxxviii) section 282 (abduction in contravention of custody order or parenting order),

  • (xxxix) section 283 (abduction); or

• (b) the Crimes Against Humanity and War Crimes Act.‍ (infraction)

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Order — unlocking of electronic device

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(2) On ex parte application made by a peace officer who has obtained lawful authority to examine the contents of an electronic device, a judge may make an order compelling a person to unlock the device, including providing access to data specified in the lawful authority and contained in or available to the device, if the judge is satisfied by information on oath that there are reasonable grounds to believe that

• (a) an offence has been committed;

• (b) an examination of the device or of the specified data contained in or available to the device will afford evidence with respect to the commission of the offence;

• (c) the person is a user of the device;

• (d) other investigative procedures to obtain data contained in or available to the device have been tried and have failed or are unlikely to succeed, or that the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures; and

• (e) it is in the best interests of the administration of justice to make the order.

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Execution of order to be reasonable

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(3) The order must contain any terms and conditions that the judge considers advisable to ensure that the execution of the order is reasonable in the circumstances.

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Execution in Canada

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(4) The order may be executed at any place in Canada. Any peace officer who executes the order must have authority to act as a peace officer in the place where it is executed.

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Telewarrant

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(5) If a peace officer believes that it would be impracticable to appear personally before a judge to make an application for an order, a judge may make an order on an information submitted by telephone or other means of telecommunication and, for that purpose, section 487.‍1 applies, with any modifications that the circumstances require, to the order.

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Failure to comply with order

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(6) Every person who, without reasonable excuse, fails to comply with the order is guilty of

• (a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or

• (b) an offence punishable on summary conviction.

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Admissibility

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(7) Evidence that a person was able to unlock an electronic device in the execution of the order is inadmissible as evidence in any criminal or civil proceeding as proof of ownership of the device or that the person had knowledge of the contents of the device.

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