Bill C-46

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First Reading

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2nd Session, 40th Parliament,

57-58 Elizabeth II, 2009

house of commons of canada

BILL C-46

An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act

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

SHORT TITLE

Short title

1. This Act may be cited as the Investigative Powers for the 21st Century Act.

R.S., c. C-46

CRIMINAL CODE

2005, c. 32, s. 9(1)

2. (1) The portion of subsection 164.1(1) of the Criminal Code before paragraph (a) is replaced by the following:

Warrant of seizure

164.1 (1) If a judge is satisfied by information on oath that there are reasonable grounds to believe that there is material — namely child pornography within the meaning of section 163.1, a voyeuristic recording within the meaning of subsection 164(8) or computer data within the meaning of subsection 342.1(2) that makes child pornography or a voyeuristic recording available — that is stored on and made available through a computer system within the meaning of subsection 342.1(2) that is within the jurisdiction of the court, the judge may order the custodian of the computer system to

2005, c. 32, s. 9(2)

(2) Subsection 164.1(5) of the Act is replaced by the following:

Order

(5) If the court is satisfied, on a balance of probabilities, that the material is child pornography within the meaning of section 163.1, a voyeuristic recording within the meaning of subsection 164(8) or computer data within the meaning of subsection 342.1(2) that makes child pornography or the voyeuristic recording available, it may order the custodian of the computer system to delete the material.

2005, c. 32, s. 9(3)

(3) Subsection 164.1(7) of the Act is replaced by the following:

Return of material

(7) If the court is not satisfied that the material is child pornography within the meaning of section 163.1, a voyeuristic recording within the meaning of subsection 164(8) or computer data within the meaning of subsection 342.1(2) that makes child pornography or the voyeuristic recording available, the court shall order that the electronic copy be returned to the custodian and terminate the order under paragraph (1)(b).

2002, c. 13, s. 8

3. The portion of subsection 172.1(1) of the Act before paragraph (a) is replaced by the following:

Luring a child

172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with

4. The Act is amended by adding the following after section 172.1:

Communication for sexual offence against a child

172.2 (1) Every person commits an offence who, by a means of telecommunication, agrees with a person, or makes an arrangement with a person, to commit an offence

(a) under section 151 or 152, subsection 153(1) or 160(3), section 163.1 or 170, subsection 173(2) or 212(4) or section 280 or 281 with respect to another person; or

(b) under section 155, subsection 212(1) or section 271, 272 or 273 with respect to another person who is, or whom the accused believes is, under the age of 18 years.

Punishment

(2) Every person who commits an offence under subsection (1) is

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

(b) guilty of an offence punishable on summary conviction and liable to imprisonment for a term of not more than 18 months.

Presumption

(3) Evidence that the person referred to in paragraph (1)(b) was represented to the accused as being under the age of 18 years is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.

No defence

(4) It is not a defence to a charge under paragraph (1)(b) that the accused believed that the person referred to in that paragraph was at least 18 years of age, unless the accused took reasonable steps to ascertain the person’s age.

No defence

(5) It is not a defence to a charge under subsection (1) that the person with whom the accused agrees or makes arrangements is a peace officer.

2004, c. 15, s. 108

5. (1) Subparagraph (a)(lviii) of the definition “offence” in section 183 of the Act is replaced by the following:

(lviii) section 342.2 (possession of device to obtain unauthorized use of computer system or to commit mischief),

2004, c. 15, s. 108

(2) Subparagraph (a)(lxvii) of the definition “offence” in section 183 of the Act is replaced by the following:

(lxvii) section 372 (false information),

2004, c. 14, s. 1

6. Subsection 318(4) of the Act is replaced by the following:

Definition of “identifiable group”

(4) In this section, “identifiable group” means any section of the public distinguished by colour, race, religion, national or ethnic origin or sexual orientation.

7. The definition “communicating” in subsection 319(7) of the Act is replaced by the following:

“communicating”
« communiquer »

“communicating” means communicating by any means and includes making available;

2001, c. 41, s. 10

8. (1) The portion of subsection 320.1(1) of the Act before paragraph (a) is replaced by the following:

Warrant of seizure

320.1 (1) If a judge is satisfied by information on oath that there are reasonable grounds to believe that there is material that is hate propaganda within the meaning of subsection 320(8) or computer data within the meaning of subsection 342.1(2) that makes hate propaganda available, that is stored on and made available to the public through a computer system within the meaning of subsection 342.1(2) that is within the jurisdiction of the court, the judge may order the custodian of the computer system to

2001, c. 41, s. 10

(2) Subsection 320.1(5) of the Act is replaced by the following:

Order

(5) If the court is satisfied, on a balance of probabilities, that the material is available to the public and is hate propaganda within the meaning of subsection 320(8) or computer data within the meaning of subsection 342.1(2) that makes hate propaganda available, it may order the custodian of the computer system to delete the material.

2001, c. 41, s. 10

(3) Subsection 320.1(7) of the Act is replaced by the following:

Return of material

(7) If the court is not satisfied that the material is available to the public and is hate propaganda within the meaning of subsection 320(8) or computer data within the meaning of subsection 342.1(2) that makes hate propaganda available, the court shall order that the electron- ic copy be returned to the custodian and terminate the order under paragraph (1)(b).

9. (1) Paragraph 326(1)(b) of the French version of the Act is replaced by the following:

b) soit utilise une installation de télécommunication ou obtient un service de télécommunication.

(2) Subsection 326(2) of the Act is repealed.

10. Section 327 of the Act is replaced by the following:

Possession, etc., of device to obtain use of telecommunication facility or telecommunication service

327. (1) Everyone who, without lawful excuse, makes, possesses, sells, offers for sale, imports, obtains for use, distributes or makes available a device that is designed or adapted primarily to use a telecommunication facility or obtain a telecommunication service without payment of a lawful charge, under circumstances that give rise to a reasonable inference that the device has been used or is or was intended to be used for that purpose, is

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

(b) guilty of an offence punishable on summary conviction.

Forfeiture

(2) If a person is convicted of an offence under subsection (1) or paragraph 326(1)(b), in addition to any punishment that is imposed, any device in relation to which the offence was committed or the possession of which constituted the offence may be ordered forfeited to Her Majesty and may be disposed of as the Attorney General directs.

Limitation

(3) No order for forfeiture is to be made in respect of telecommunication facilities or equipment by means of which an offence under subsection (1) is committed if they are owned by a person engaged in providing a telecommunication service to the public or form part of such a person’s telecommunication service or system and that person is not a party to the offence.

Definition of “device”

(4) In this section, “device” includes

(a) a component of a device; and

(b) a computer program within the meaning of subsection 342.1(2).

R.S., c. 27 (1st Supp.), s. 45; 1997, c. 18, s. 18(1)

11. (1) Subsection 342.1(1) of the Act is replaced by the following:

Unauthorized use of computer

342.1 (1) Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years, or is guilty of an offence punishable on summary conviction who, fraudulently and without colour of right,

(a) obtains, directly or indirectly, any computer service;

(b) by means of an electro-magnetic, acoustic, mechanical or other device, intercepts or causes to be intercepted, directly or indirectly, any function of a computer system;

(c) uses or causes to be used, directly or indirectly, a computer system with intent to commit an offence under paragraph (a) or (b) or under section 430 in relation to computer data or a computer system; or

(d) uses, possesses, traffics in or permits another person to have access to a computer password that would enable a person to commit an offence under paragraph (a), (b) or (c).

R.S., c. 27 (1st Supp.), s. 45

(2) The definition “data” in subsection 342.1(2) of the Act is repealed.

R.S., c. 27 (1st Supp.), s. 45; 1997, c. 18, s. 18(2)

(3) The definitions “computer password”, “computer program”, “computer service” and “computer system” in subsection 342.1(2) of the Act are replaced by the following:

“computer password”
« mot de passe »

“computer password” means any computer data by which a computer service or computer system is capable of being obtained or used;

“computer program”
« programme d’ordinateur »

“computer program” means computer data representing instructions or statements that, when executed in a computer system, causes the computer system to perform a function;

“computer service”
« service d’ordinateur »

“computer service” includes data processing and the storage or retrieval of computer data;

“computer system”
« ordinateur »

“computer system” means a device that, or a group of interconnected or related devices one or more of which,

(a) contains computer programs or other computer data, and

(b) by means of computer programs,

(i) performs logic and control, and

(ii) may perform any other function;

(4) Subsection 342.1(2) of the Act is amended by adding the following in alphabetical order:

“computer data”
« données informatiques »

“computer data” means representations, including signs, signals or symbols, that are in a form suitable for processing in a computer system;

1997, c. 18, s. 19

12. (1) Subsections 342.2(1) and (2) of the Act are replaced by the following:

Possession of device to obtain unauthorized use of computer system or to commit mischief

342.2 (1) Everyone who, without lawful excuse, makes, possesses, sells, offers for sale, imports, obtains for use, distributes or makes available a device that is designed or adapted primarily to commit an offence under section 342.1 or 430, under circumstances that give rise to a reasonable inference that the device has been used or is or was intended to be used to commit such an offence, is

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

(b) guilty of an offence punishable on summary conviction.

Forfeiture

(2) If a person is convicted of an offence under subsection (1), in addition to any punishment that is imposed, any device in relation to which the offence was committed or the possession of which constituted the offence may be ordered forfeited to Her Majesty and may be disposed of as the Attorney General directs.

(2) Section 342.2 of the Act is amended by adding the following after subsection (3):

Definition of “device”

(4) In this section, “device” includes

(a) a component of a device; and

(b) a computer program within the meaning of subsection 342.1(2).

13. Sections 371 and 372 of the Act are replaced by the following:

Message in false name

371. Everyone who, with intent to defraud, causes a message to be sent as if it were sent under the authority of another person, knowing that it is not sent under that authority and with intent that it should be acted on as if it were, is guilty of an indictable offence and liable to imprisonment for a term of not more than five years.

False information

372. (1) Everyone commits an offence who, with intent to injure or alarm a person, conveys information that they know is false, or causes such information to be conveyed by letter or any means of telecommunication.

Indecent communications

(2) Everyone commits an offence who, with intent to alarm or annoy a person, makes an indecent communication to that person or to any other person by a means of telecommunication.

Harassing communications

(3) Everyone commits an offence who, without lawful excuse and with intent to harass a person, repeatedly communicates, or causes repeated communications to be made, with them by a means of telecommunication.

Punishment

(4) Everyone who commits an offence under this section is

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

(b) guilty of an offence punishable on summary conviction.

R.S., c. 27 (1st Supp.), s. 57(1)

14. (1) Subsection 430(1.1) of the Act is replaced by the following:

Mischief in relation to computer data

(1.1) Everyone commits mischief who wilfully

(a) destroys or alters computer data;

(b) renders computer data meaningless, useless or ineffective;

(d) obstructs, interrupts or interferes with a person in the lawful use of computer data or denies access to computer data to a person who is entitled to access to it.

R.S., c. 27 (1st Supp.), s. 57(2)

(2) The portion of subsection 430(5) of the Act before paragraph (a) is replaced by the following:

Mischief in relation to computer data

(5) Everyone who commits mischief in relation to computer data

R.S., c. 27 (1st Supp.), s. 57(2)

(3) The portion of subsection 430(5.1) of the Act before paragraph (a) is replaced by the following:

Offence

(5.1) Everyone who wilfully does an act or wilfully omits to do an act that it is their duty to do, if that act or omission is likely to constitute mischief causing actual danger to life, or to constitute mischief in relation to property or computer data,

R.S., c. 27 (1st Supp.), s. 57(3)

(4) Subsection 430(8) of the Act is replaced by the following:

Definition of “computer data”

(8) In this section, “computer data” has the same meaning as in subsection 342.1(2).

1997, c. 18, s. 43; 2004, c. 3, s. 7

15. Sections 487.011 to 487.02 of the Act are replaced by the following:

Definitions

487.011 The following definitions apply in this section and in sections 487.012 to 487.0199.

“computer data”
« données informatiques »

“computer data” has the same meaning as in subsection 342.1(2).

“data”
« données »

“data” means representations, including signs, signals or symbols, that are capable of being understood by an individual or processed by a computer system or other device.

“document”
« document »

“document” means a medium on which data is registered or marked.

“judge”
« juge »

“judge” means a judge of a superior court of criminal jurisdiction or a judge of the Court of Quebec.

“public officer”
« fonctionnaire public »

“public officer” means a public officer who is appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament.

“tracking data”
« données de localisation »

“tracking data” means data that relates to the location of a transaction, individual or thing.

“transmission data”
« données de transmission »

“transmission data” means data that

(a) relates to the telecommunication functions of dialling, routing, addressing or signalling;

(b) is transmitted to identify, activate or configure a device, including a computer program as defined in subsection 342.1(2), in order to establish or maintain access to a telecommunication service for the purpose of enabling a communication, or is generated during the creation, transmission or reception of a communication and identifies or purports to identify the type, direction, date, time, duration, size, origin, destination or termination of the communication; and

Preservation demand

487.012 (1) A peace officer or public officer may make a demand to a person in Form 5.001 requiring them to preserve computer data that is in their possession or control when the demand is made.

Conditions for making demand

(2) The peace officer or public officer may make the demand only if they have reasonable grounds to suspect that

(a) an offence has been or will be committed under this or any other Act of Parliament or has been committed under a law of a foreign state;

(b) in the case of an offence committed under a law of a foreign state, an investigation is being conducted by a person or authority with responsibility in that state for the investigation of such offences; and

Limitation

(3) A demand may not be made to a person who is under investigation for the offence referred to in paragraph (2)(a).

Expiry and revocation of demand

(4) A peace officer or public officer may revoke the demand by notice given to the person at any time. Unless the demand is revoked earlier, the demand expires 21 days after the day on which it is made.

Conditions in demand

(5) The peace officer or public officer who makes the demand may impose any conditions in the demand that they consider appropriate — including conditions prohibiting the disclosure of its existence or some or all of its contents — and may revoke a condition at any time by notice given to the person.

No further demand

(6) A peace officer or public officer may not make another demand requiring the person to preserve the same computer data in connection with the investigation.

Preservation order — computer data

487.013 (1) On ex parte application made by a peace officer or public officer, a justice or judge may order a person to preserve computer data that is in their possession or control when they receive the order.

Conditions for making order

(2) Before making the order, the justice or judge must be satisfied by information on oath in Form 5.002

(a) that there are reasonable grounds to suspect that an offence has been or will be committed under this or any other Act of Parliament or has been committed under a law of a foreign state, that the computer data is in the person’s possession or control and that it will assist in the investigation of the offence; and

(b) that a peace officer or public officer intends to apply or has applied for a warrant or an order in connection with the investigation to obtain a document that contains the computer data.

Offence against law of foreign state

(3) If an offence has been committed under a law of a foreign state, the justice or judge must also be satisfied that a person or authority with responsibility in that state for the investigation of such offences is conducting the investigation.

Form

(4) The order is to be in Form 5.003.

Limitation

(5) A person who is under investigation for an offence referred to in paragraph (2)(a) may not be made subject to an order.

Expiry of order

(6) Unless the order is revoked earlier, it expires 90 days after the day on which it is made.

General production order

487.014 (1) Subject to sections 487.015 to 487.018, on ex parte application made by a peace officer or public officer, a justice or judge may order a person to produce a document that is a copy of a document that is in their possession or control when they receive the order, or to prepare and produce a document containing data that is in their possession or control at that time.

Conditions for making order

(2) Before making the order, the justice or judge must be satisfied by information on oath in Form 5.004 that there are reasonable grounds to believe that

(a) an offence has been or will be committed under this or any other Act of Parliament; and

(b) the document or data is in the person’s possession or control and will afford evidence respecting the commission of the offence.

Form

(3) The order is to be in Form 5.005.

Limitation

(4) A person who is under investigation for the offence referred to in subsection (2) may not be made subject to an order.

Production order to trace specified communication

487.015 (1) On ex parte application made by a peace officer or public officer for the purpose of identifying a device or person involved in the transmission of a communication, a justice or judge may order a person to prepare and produce a document containing transmission data that is in their possession or control when they are served with the order.

Conditions for making order

(2) Before making the order, the justice or judge must be satisfied by information on oath in Form 5.004 that there are reasonable grounds to suspect that

(a) an offence has been or will be committed under this or any other Act of Parliament;

(b) the identification of a device or person involved in the transmission of a communication will assist in the investigation of the offence; and

(c) transmission data that is in the possession or control of one or more persons whose identity is unknown when the application is made will enable that identification.

Form

(3) The order is to be in Form 5.006.

Service

(4) A peace officer or public officer may serve the order on any person who was involved in the transmission of the communication and whose identity was unknown when the application was made

(a) within 60 days after the day on which the order is made; or

(b) within one year after the day on which the order is made, in the case of an offence under section 467.11, 467.12 or 467.13, an offence committed for the benefit of, at the direction of or in association with a criminal organization, or a terrorism offence.

Limitation

(5) A person who is under investigation for the offence referred to in subsection (2) may not be made subject to an order.

Report

(6) A peace officer or public officer named in the order must provide a written report to the justice or judge who made the order as soon as feasible after the person from whom the communication originated is identified or after the expiry of the period referred to in subsection (4), whichever occurs first. The report must state the name and address of each person on whom the order was served, and the date of service.

Production order — transmission data

487.016 (1) On ex parte application made by a peace officer or public officer, a justice or judge may order a person to prepare and produce a document containing transmission data that is in their possession or control when they receive the order.

Conditions for making order

(2) Before making the order, the justice or judge must be satisfied by information on oath in Form 5.004 that there are reasonable grounds to suspect that

(a) an offence has been or will be committed under this or any other Act of Parliament; and

(b) the transmission data is in the person’s possession or control and will assist in the investigation of the offence.

Form

(3) The order is to be in Form 5.007.

Limitation

(4) A person who is under investigation for the offence referred to in subsection (2) may not be made subject to an order.

Production order — tracking data

487.017 (1) On ex parte application made by a peace officer or public officer, a justice or judge may order a person to prepare and produce a document containing tracking data that is in their possession or control when they receive the order.

Conditions for making order

(2) Before making the order, the justice or judge must be satisfied by information on oath in Form 5.004 that there are reasonable grounds to suspect that

(a) an offence has been or will be committed under this or any other Act of Parliament; and

(b) the tracking data is in the person’s possession or control and will assist in the investigation of the offence.

Form

(3) The order is to be in Form 5.007.

Limitation

(4) A person who is under investigation for the offence referred to in subsection (2) may not be made subject to an order.

Production order — financial data

487.018 (1) On ex parte application made by a peace officer or public officer, a justice or judge may order a financial institution, as defined in section 2 of the Bank Act, or a person or entity referred to in section 5 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, to prepare and produce a document setting out the following data that is in their possession or control when they receive the order:

(a) either the account number of a person named in the order or the name of a person whose account number is specified in the order;

(b) the type of account;

(d) the date on which it was opened or closed.

Identification of person

(2) For the purpose of confirming the identity of a person who is named or whose account number is specified in the order, the order may also require the institution, person or entity to prepare and produce a document setting out the following data that is in their possession or control:

(a) the date of birth of a person who is named or whose account number is specified in the order;

(b) that person’s current address; and

Conditions for making order

(3) Before making the order, the justice or judge must be satisfied by information on oath in Form 5.004 that there are reasonable grounds to suspect that

(a) an offence has been or will be committed under this or any other Act of Parliament; and

(b) the data is in the possession or control of the institution, person or entity and will assist in the investigation of the offence.

Form

(4) The order is to be in Form 5.008.

Limitation

(5) A financial institution, person or entity that is under investigation for the offence referred to in subsection (3) may not be made subject to an order.

Conditions in preservation and production orders

487.019 (1) An order made under any of sections 487.013 to 487.018 may contain any conditions that the justice or judge considers appropriate including, in the case of an order made under section 487.014, conditions to protect a privileged communication between a person who is qualified to give legal advice and their client.

Effect of order

(2) The order has effect throughout Canada.

Power to revoke or vary order

(3) On ex parte application made by a peace officer or public officer, the justice or judge who made the order — or a judge in the judicial district where the order was made — may, on the basis of an information on oath in Form 5.0081, revoke or vary the order. The peace officer or public officer must give notice of the revocation or variation to the person who is subject to the order as soon as feasible.

Order prohibiting disclosure

487.0191 (1) On ex parte application made by a peace officer or public officer, a justice or judge may make an order prohibiting a person from disclosing the existence or some or all of the contents of a preservation demand made under section 487.012 or a preservation or production order made under any of sections 487.013 to 487.018 during the period set out in the order.

Conditions for making order

(2) Before making the order, the justice or judge must be satisfied by information on oath in Form 5.009 that there are reasonable grounds to believe that the disclosure during that period would jeopardize the conduct of the investigation of the offence to which the preservation demand or the preservation or production order relates.

Form

(3) The order is to be in Form 5.0091.

Application to revoke or vary order

(4) A peace officer or a public officer or a person, financial institution or entity that is subject to an order made under subsection (1) may apply in writing to the justice or judge who made the order — or to a judge in the judicial district where the order was made — to revoke or vary the order.

Particulars — production orders

487.0192 (1) An order made under any of sections 487.014 and 487.016 to 487.018 must require a person, financial institution or entity to produce the document to a peace officer or public officer named in the order within the time, at the place and in the form specified in the order.

Particulars — production order to trace specified communication

(2) An order made under section 487.015 must require a person to produce the document to a peace officer or public officer named in the order as soon as feasible after they are served with the order at the place and in the form specified in the order.

Form of production

(3) For greater certainty, an order may specify that a document may be produced on or through an electro-magnetic medium.

No return of documents

(4) Once produced, the document need not be returned.

Probative force of copies

(5) Every copy of a document produced under section 487.014 is admissible in evidence in proceedings under this or any other Act of Parliament on proof by affidavit that it is a true copy and has the same probative force as the document would have if it were proved in the ordinary way.

Canada Evidence Act

(6) For greater certainty, a document that is prepared for the purpose of production is considered to be an original document for the purposes of the Canada Evidence Act.

Application for review of production order

487.0193 (1) At any time before they are required by an order made under any of sections 487.014 to 487.018 to produce a document, a person, financial institution or entity may apply in writing to the justice or judge who made the order — or to a judge in the judicial district where the order was made — to revoke or vary the order.

Notice required

(2) The person, institution or entity may make the application only if they give notice of their intention to do so to a peace officer or public officer named in the order within 30 days after the day on which the order is made.

No obligation to produce

(3) The person, institution or entity is not required to prepare or produce the document until a final decision is made with respect to the application.

Revocation or variation of order

(4) The justice or judge may revoke or vary the order if satisfied that

(a) it is unreasonable in the circumstances to require the applicant to prepare or produce the document; or

(b) production of the document would disclose information that is privileged or otherwise protected from disclosure by law.

Destruction of preserved computer data and documents — preservation demand

487.0194 (1) A person to whom a preservation demand is made under section 487.012 shall destroy the computer data that would not be retained in the ordinary course of business and any document that is prepared for the purpose of preserving computer data under that section as soon as feasible after the demand expires or is revoked, unless they are subject to an order made under any of sections 487.013 to 487.017 with respect to the computer data.

Destruction of preserved computer data and documents — preservation order

(2) A person who is subject to a preservation order made under section 487.013 shall destroy the computer data that would not be retained in the ordinary course of business and any document that is prepared for the purpose of preserving computer data under that section as soon as feasible after the order expires or is revoked, unless they are subject to a production order made under any of sections 487.014 to 487.017 with respect to the computer data.

Destruction of preserved computer data and documents — production order

(3) A person who is subject to a production order made under any of sections 487.014 to 487.017 with respect to computer data that they preserved under a preservation demand or order made under section 487.012 or 487.013 shall destroy the computer data that would not be retained in the ordinary course of business and any document that is prepared for the purpose of preserving computer data under that section as soon as feasible after the earlier of

(a) the day on which the production order is revoked, and

(b) the day on which a document that contains the computer data is produced under the production order.

Destruction of preserved computer data and documents — warrant

(4) Despite subsections (1) to (3), a person who preserved computer data under a preservation demand or order made under section 487.012 or 487.013 shall destroy the computer data that would not be retained in the ordinary course of business and any document that is prepared for the purpose of preserving computer data under that section when a document that contains the computer data is obtained under a warrant.

For greater certainty

487.0195 (1) For greater certainty, no pres- ervation demand, preservation order or production order is necessary for a peace officer or public officer to ask a person to voluntarily preserve data that the person is not prohibited by law from preserving or to voluntarily provide a document to the officer that the person is not prohibited by law from disclosing.

No civil or criminal liability

(2) A person who preserves data or provides a document in those circumstances does not incur any criminal or civil liability for doing so.

Self-incrimination

487.0196 No one is excused from complying with an order made under any of sections 487.014 to 487.018 on the ground that the document that they are required to produce may tend to incriminate them or subject them to a proceeding or penalty. However, no document that an individual is required to prepare may be used or received in evidence against them in a criminal proceeding that is subsequently instituted against them, other than a prosecution for an offence under section 132, 136 or 137.

Offence — preservation demand

487.0197 A person who contravenes a pres- ervation demand made under section 487.012 without lawful excuse is guilty of an offence punishable on summary conviction and is liable to a fine of not more than $5,000.

Offence — preservation or production order

487.0198 A person, financial institution or entity that contravenes an order made under any of sections 487.013 to 487.018 without lawful excuse is guilty of an offence punishable on summary conviction and is liable to a fine of not more than $250,000 or to imprisonment for a term of not more than six months, or to both.

Offence — destruction of preserved data

487.0199 A person who contravenes section 487.0194 without lawful excuse is guilty of an offence punishable on summary conviction.

Assistance order

487.02 If an authorization is given under section 184.2, 184.3, 186 or 188 or a warrant is issued under this Act, the judge or justice who gives the authorization or issues the warrant may order a person to provide assistance, if the person’s assistance may reasonably be considered to be required to give effect to the authorization or warrant.

16. Paragraph (a.1) of the definition “primary designated offence” in section 487.04 of the Act is amended by adding the following after subparagraph (iv.5):

(iv.6) section 172.2 (communication for sexual offence against a child),

1995, c. 27, s. 1

17. The heading before section 487.1 of the Act is replaced by the following:

Other Provisions Respecting Search Warrants, Preservation Orders and Production Orders

1997, c. 18, s. 46

18. Section 487.11 of the Act is replaced by the following:

Exigent circumstances

487.11 Either a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament may, in the course of their duties, exercise any of the powers described in section 487, 492.1 or 492.2 without a warrant if the conditions for obtaining a warrant exist but it would not be feasible to obtain a warrant because of exigent circumstances.

2004, c. 3, s. 8(1)

19. (1) The portion of subsection 487.3(1) of the Act before paragraph (a) is replaced by the following:

Order denying access to information

487.3 (1) On application made at the time an application is made for a warrant under this or any other Act of Parliament, an order under any of sections 487.013 to 487.018 or an authorization under section 529 or 529.4, or at a later time, a justice, a judge of a superior court of criminal jurisdiction or a judge of the Court of Quebec may make an order prohibiting access to, and the disclosure of, any information relating to the warrant, order or authorization on the ground that

1997, c. 23, s. 14

(2) Paragraph 487.3(1)(b) of the English version of the Act is replaced by the following:

(b) the reason referred to in paragraph (a) outweighs in importance the access to the information.

20. Paragraph (a) of the definition “designated offence” in subsection 490.011(1) of the Act is amended by adding the following after subparagraph (x):

(x.1) section 172.2 (communication for sexual offence against a child),

1993, c. 40, s. 18; 1999, c. 5, ss. 18 and 19

21. Sections 492.1 and 492.2 of the Act are replaced by the following:

Warrant for tracking device — transactions and things

492.1 (1) A justice or judge who is satisfied by information on oath that there are reasonable grounds to suspect that an offence has been or will be committed under this or any other Act of Parliament and that tracking the location of one or more transactions or the location or movement of a thing, including a vehicle, will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain that tracking data by means of a tracking device.

Warrant for tracking device — individuals

(2) A justice or judge who is satisfied by information on oath that there are reasonable grounds to believe that an offence has been or will be committed under this or any other Act of Parliament and that tracking an individual’s movement by identifying the location of a thing that is usually carried or worn by the individual will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain that tracking data by means of a tracking device.

Scope of warrant

(3) The warrant authorizes the peace officer or public officer, or a person acting under their authority, to install, activate, use, maintain, monitor and remove the tracking device, including covertly.

Conditions

(4) A warrant may contain any conditions that the justice or judge considers appropriate, including conditions to protect a person’s interests.

Period of validity

(5) Subject to subsection (6), a warrant is valid for the period specified in it as long as that period ends no more than 60 days after the day on which the warrant is issued.

Period of validity — organized crime and terrorism offence

(6) A warrant is valid for the period specified in it as long as that period ends no more than one year after the day on which the warrant is issued, if the warrant relates to

(a) an offence under any of sections 467.11 to 467.13;

(b) an offence committed for the benefit of, at the direction of, or in association with a criminal organization; or

Removal after expiry of warrant

(7) On ex parte application supported by an affidavit, the justice or judge who issued a warrant or another justice or judge who has jurisdiction to issue such warrants may authorize the covert removal of the tracking device after the expiry of the warrant under any conditions that the justice or judge considers advisable in the public interest. The authorization is valid for the period specified in it as long as that period is not more than 90 days.

Definitions

(8) The following definitions apply in this section.

“data”
« données »

“data” means representations, including signs, signals or symbols, that are capable of being understood by an individual or processed by a computer system or other device.

“judge”
« juge »

“judge” means a judge of a superior court of criminal jurisdiction or a judge of the Court of Quebec.

“public officer”
« fonctionnaire public »

“public officer” means a public officer who is appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament.

“tracking data”
« données de localisation »

“tracking data” means data that relates to the location of a transaction, individual or thing.

“tracking device”
« dispositif de localisation »

“tracking device” means a device, including a computer program within the meaning of subsection 342.1(2), that may be used to obtain or record tracking data or to transmit it by a means of telecommunication.

Warrant for transmission data recorder

492.2 (1) A justice or judge who is satisfied by information on oath that there are reasonable grounds to suspect that an offence has been or will be committed against this or any other Act of Parliament and that transmission data will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain the transmission data by means of a transmission data recorder.

Scope of warrant

(2) The warrant authorizes the peace officer or public officer, or a person acting under their authority, to install, activate, use, maintain, monitor and remove the transmission data recorder, including covertly.

Limitation

(3) No warrant shall be issued under this section for the purpose of obtaining tracking data.

Period of validity

(4) Subject to subsection (5), a warrant is valid for the period specified in it as long as that period ends no more than 60 days after the day on which the warrant is issued.

Period of validity — organized crime or terrorism offence

(5) The warrant is valid for the period specified in it as long as that period ends no more than one year after the day on which the warrant is issued, if the warrant relates to

(a) an offence under any of sections 467.11 to 467.13;

(b) an offence committed for the benefit of, at the direction of, or in association with a criminal organization; or

Definitions

(6) The following definitions apply in this section.

“data”
« données »

“data” means representations, including signs, signals or symbols, that are capable of being understood by an individual or processed by a computer system or other device.

“judge”
« juge »

“judge” means a judge of a superior court of criminal jurisdiction or a judge of the Court of Quebec.

“public officer”
« fonctionnaire public »

“transmission data”
« données de transmission »

“transmission data” means data that

(a) relates to the telecommunication functions of dialling, routing, addressing or signalling;

“transmission data recorder”
« enregistreur de données de transmission »

“transmission data recorder” means a device, including a computer program within the meaning of subsection 342.1(2), that may be used to obtain or record transmission data or to transmit it by a means of telecommunication.

22. Part XXVIII of the Act is amended by adding the following after Form 5:

FORM 5.001

(Subsection 487.012(1))

PRESERVATION DEMAND

Canada,

Province of ..........

(territorial division)

To (name of person), of .........., (office or occupation):

Because I have reasonable grounds to suspect that the computer data specified below is in your possession or control and that that computer data

will assist in the investigation of an offence that has been or will be committed under (specify the provision of the Criminal Code or other Act of Parliament),

(or)

will assist in the investigation of an offence that has been committed under (specify the provision of the law of the foreign state) that is being conducted by a person or authority, (name of person or authority), with responsibility in (specify the name of the foreign state) for the investigation of such offences,

you are required to preserve (specify the computer data) that is in your possession or control when you receive this demand until (insert date) unless, before that date, this demand is revoked or a document that contains that data is obtained under a warrant or an order.

This demand is subject to the following conditions:

If you contravene this demand without lawful excuse, you may be subject to a fine.

You are required to destroy the computer data that would not be retained in the ordinary course of business, and any document that is prepared for the purpose of preserving the computer data, in accordance with section 487.0194 of the Criminal Code. If you contravene that provision without lawful excuse, you may be subject to a fine, to imprisonment or to both.

..................................................

(Signature of peace officer or public officer)

FORM 5.002

(Subsection 487.013(2))

INFORMATION TO OBTAIN A PRESERVATION ORDER

Canada,

Province of ...........

(territorial division)

This is the information of (name of peace officer or public officer), of .......... (“the informant”).

The informant says that they have reasonable grounds to suspect that an offence has been or will be committed under (specify the provision of the Criminal Code or other Act of Parliament) (or has been committed under (specify the provision of the law of the foreign state)) and that (specify the computer data) is in the possession or control of (name of the person) and will assist in the investigation of the offence.

The informant also says that a peace officer or public officer intends to apply or has applied for a warrant or order in connection with the investigation to obtain a document that contains the computer data (and, if applicable, and that (name of person or authority) is conducting the investigation and has responsibility for the investigation of such offences in (insert the name of the foreign state)).

The reasonable grounds are: (including, if applica- ble, whether a preservation demand was made under section 487.012 of the Criminal Code)

The informant therefore requests that (name of the person) be ordered to preserve (specify the computer data) that is in their possession or control when they receive the order for 90 days after the day on which the order is made.

Sworn before me on (date), at (place).

..................................................

(Signature of informant)

..................................................

(Signature of justice or judge)

FORM 5.003

(Subsection 487.013(4))

PRESERVATION ORDER

Canada,

Province of ...........

(territorial division)

To (name of person), of .........., (office or occupation):

Whereas I am satisfied by information on oath of (name of peace officer or public officer), of ..........,

(a) that there are reasonable grounds to suspect that an offence has been or will be committed under (specify the provision of the Criminal Code or other Act of Parliament) (or has been committed under (specify the provision of the law of the foreign state)) and that (specify the computer data) is in your possession or control and will assist in the investigation of the offence; and

(b) that a peace officer or public officer intends to apply or has applied for a warrant or order to obtain a document that contains the computer data (and, if applicable, and that (name of person or authority) is conducting the investigation and has responsibility for the investigation of such offences in (insert the name of the foreign state));

Therefore, you are required to preserve the specified computer data that is in your possession or control when you receive this order until (insert date) unless, before that date, this order is revoked or a document that contains that data is obtained under a warrant or an order.

This order is subject to the following conditions:

If you contravene this order without lawful excuse, you may be subject to a fine, to imprisonment or to both.

You are required to destroy the computer data that would not be retained in the ordinary course of business, and any document that is prepared for the purpose of preserving the computer data, in accord- ance with section 487.0194 of the Criminal Code. If you contravene that provision without lawful excuse, you may be subject to a fine, to imprisonment or to both.

Dated (date), at (place).

..................................................

(Signature of justice or judge)

FORM 5.004

(Subsections 487.014(2), 487.015(2), 487.016(2), 487.017(2) and 487.018(3))

INFORMATION TO OBTAIN A PRODUCTION ORDER

Canada,

Province of ..........

(territorial division)

This is the information of (name of peace officer or public officer), of .......... (“the informant”).

The informant says that they have reasonable grounds to suspect (or, if the application is for an order under section 487.014 of the Criminal Code, reasonable grounds to believe)

(a) that an offence has been or will be committed under (specify the provision of the Criminal Code or other Act of Parliament); and

(b) (if the application is for an order under section 487.014 of the Criminal Code) that (specify the document or data) is in the possession or control of (name of the person) and will afford evidence respecting the commission of the offence.

(or)

(b) (if the application is for an order under section 487.015 of the Criminal Code) that the identification of a device or person involved in the transmission of (specify the communication) will assist in the investigation of the offence and that (specify the transmission data) that is in the possession or control of one or more persons whose identity is unknown will enable that identification.

(or)

(b) (if the application is for an order under section 487.016 of the Criminal Code) that (specify the transmission data) is in the possession or control of (name of the person) and will assist in the investigation of the offence.

(or)

(b) (if the application is for an order under section 487.017 of the Criminal Code) that (specify the tracking data) is in the possession or control of (name of the person) and will assist in the investigation of the offence.

(or)

(b) (if the application is for an order under section 487.018 of the Criminal Code) that (specify the data) is in the possession or control of (name of the financial institution, person or entity) and will assist in the investigation of the offence.

The reasonable grounds are:

The informant therefore requests

(if the application is for an order under section 487.014 of the Criminal Code) that (name of the person) be ordered to produce a document that is a copy of (specify the document) that is in their possession or control when they receive the order (and/or to prepare and produce a document containing (specify the data) that is in their possession or control when they receive the order).

(or)

(if the application is for an order under section 487.015 of the Criminal Code) that a person who is served with the order in accordance with subsection 487.015(4) of the Criminal Code be ordered to prepare and produce a document containing (specify the transmission data) that is in their possession or control when they are served with the order.

(or)

(if the application is for an order under section 487.016 of the Criminal Code) that (name of the person) be ordered to prepare and produce a document containing (specify the transmission data) that is in their possession or control when they receive the order.

(or)

(if the application is for an order under section 487.017 of the Criminal Code) that (name of the person) be ordered to prepare and produce a document containing (specify the tracking data) that is in their possession or control when they receive the order.

(or)

(if the application is for an order under section 487.018 of the Criminal Code) that (name of the financial institution, person or entity) be ordered to prepare and produce a document setting out (specify the data) that is in their possession or control when they receive the order.

Sworn before me on (date), at (place).

..................................................

(Signature of informant)

..................................................

(Signature of justice or judge)

Explanatory Notes

Criminal Code

Clause 2: (1) Relevant portion of subsection 164.1(1):

164.1 (1) If a judge is satisfied by information on oath that there are reasonable grounds to believe that there is material — namely child pornography within the meaning of section 163.1, a voyeuristic recording within the meaning of subsection 164(8) or data within the meaning of subsection 342.1(2) that makes child pornography or a voyeuristic recording available — that is stored on and made available through a computer system within the meaning of subsection 342.1(2) that is within the jurisdiction of the court, the judge may order the custodian of the computer system to

(2) Existing text of subsection 164.1(5):

(5) If the court is satisfied, on a balance of probabilities, that the material is child pornography within the meaning of section 163.1, a voyeuristic recording within the meaning of subsection 164(8) or data within the meaning of subsection 342.1(2) that makes child pornography or the voyeuristic recording available, it may order the custodian of the computer system to delete the material.

(3) Existing text of subsection 164.1(7):

(7) If the court is not satisfied that the material is child pornography within the meaning of section 163.1, a voyeuristic recording within the meaning of subsection 164(8) or data within the meaning of subsection 342.1(2) that makes child pornography or the voyeuristic recording available, the court shall order that the electronic copy be returned to the custodian and terminate the order under paragraph (1)(b).

Clause 3: Relevant portion of subsection 172.1(1):

172.1 (1) Every person commits an offence who, by means of a computer system within the meaning of subsection 342.1(2), communicates with

Clause 4: New.

Clause 5: (1) and (2) Relevant portion of the definition:

“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, namely,

...

(lviii) section 342.2 (possession of device to obtain computer service),

...

(lxvii) section 372 (false messages),

Clause 6: Existing text of subsection 318(4):

(4) In this section, “identifiable group” means any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.

Clause 7: Existing text of the definition:

“communicating” includes communicating by telephone, broadcasting or other audible or visible means;

Clause 8: (1) Relevant portion of subsection 320.1(1):

320.1 (1) If a judge is satisfied by information on oath that there are reasonable grounds for believing that there is material that is hate propaganda within the meaning of subsection 320(8) or data within the meaning of subsection 342.1(2) that makes hate propaganda available, that is stored on and made available to the public through a computer system within the meaning of subsection 342.1(2) that is within the jurisdiction of the court, the judge may order the custodian of the computer system to

(2) Existing text of subsection 320.1(5):

(5) If the court is satisfied, on a balance of probabilities, that the material is available to the public and is hate propaganda within the meaning of subsection 320(8) or data within the meaning of subsection 342.1(2) that makes hate propaganda available, it may order the custodian of the computer system to delete the material.

(3) Existing text of subsection 320.1(7):

(7) If the court is not satisfied that the material is available to the public and is hate propaganda within the meaning of subsection 320(8) or data within the meaning of subsection 342.1(2) that makes hate propaganda available, the court shall order that the electronic copy be returned to the custodian and terminate the order under paragraph (1)(b).

Clause 9: (1) Relevant portion of subsection 326(1):

326. (1) Every one commits theft who fraudulently, maliciously, or without colour of right,

...

(b) uses any telecommunication facility or obtains any telecommunication service.

(2) Existing text of subsection 326(2):

(2) In this section and section 327, “telecommunication” means any transmission, emission or reception of signs, signals, writing, images or sounds or intelligence of any nature by wire, radio, visual or other electromagnetic system.

Clause 10: Existing text of section 327:

327. (1) Every one who, without lawful excuse, the proof of which lies on him, manufactures, possesses, sells or offers for sale or distributes any instrument or device or any component thereof, the design of which renders it primarily useful for obtaining the use of any telecommunication facility or service, under circumstances that give rise to a reasonable inference that the device has been used or is or was intended to be used to obtain the use of any telecommunication facility or service without payment of a lawful charge therefor, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

(2) Where a person is convicted of an offence under subsection (1) or paragraph 326(1)(b), any instrument or device in relation to which the offence was committed or the possession of which constituted the offence, on such conviction, in addition to any punishment that is imposed, may be ordered forfeited to Her Majesty, whereupon it may be disposed of as the Attorney General directs.

(3) No order for forfeiture shall be made under subsection (2) in respect of telephone, telegraph or other communication facilities or equipment owned by a person engaged in providing telephone, telegraph or other communication service to the public or forming part of the telephone, telegraph or other communication service or system of such a person by means of which an offence under subsection (1) has been committed if such person was not a party to the offence.

Clause 11: (1) Existing text of subsection 342.1(1):

342.1 (1) Every one who, fraudulently and without colour of right,

(a) obtains, directly or indirectly, any computer service,

(b) by means of an electro-magnetic, acoustic, mechanical or other device, intercepts or causes to be intercepted, directly or indirectly, any function of a computer system,

(c) uses or causes to be used, directly or indirectly, a computer system with intent to commit an offence under paragraph (a) or (b) or an offence under section 430 in relation to data or a computer system, or

(d) uses, possesses, traffics in or permits another person to have access to a computer password that would enable a person to commit an offence under paragraph (a), (b) or (c)

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or is guilty of an offence punishable on summary conviction.

(2) and (3) Existing text of the definitions:

“computer password” means any data by which a computer service or computer system is capable of being obtained or used;

“computer program” means data representing instructions or statements that, when executed in a computer system, causes the computer system to perform a function;

“computer service” includes data processing and the storage or retrieval of data;

“computer system” means a device that, or a group of interconnected or related devices one or more of which,

(a) contains computer programs or other data, and

(b) pursuant to computer programs,

(i) performs logic and control, and

(ii) may perform any other function;

“data” means representations of information or of concepts that are being prepared or have been prepared in a form suitable for use in a computer system;

(4) New.

Clause 12: (1) Existing text of subsections 342.2(1) and (2):

342.2 (1) Every person who, without lawful justification or excuse, makes, possesses, sells, offers for sale or distributes any instrument or device or any component thereof, the design of which renders it primarily useful for committing an offence under section 342.1, under circumstances that give rise to a reasonable inference that the instrument, device or component has been used or is or was intended to be used to commit an offence contrary to that section,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

(2) Where a person is convicted of an offence under subsection (1), any instrument or device, in relation to which the offence was committed or the possession of which constituted the offence, may, in addition to any other punishment that may be imposed, be ordered forfeited to Her Majesty, whereupon it may be disposed of as the Attorney General directs.

(2) New.

Clause 13: Existing text of sections 371 and 372:

371. Every one who, with intent to defraud, causes or procures a telegram, cablegram or radio message to be sent or delivered as being sent by the authority of another person, knowing that it is not sent by his authority and with intent that the message should be acted on as being sent by his authority, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

372. (1) Every one who, with intent to injure or alarm any person, conveys or causes or procures to be conveyed by letter, telegram, telephone, cable, radio or otherwise information that he knows is false is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

(2) Every one who, with intent to alarm or annoy any person, makes any indecent telephone call to that person is guilty of an offence punishable on summary conviction.

(3) Every one who, without lawful excuse and with intent to harass any person, makes or causes to be made repeated telephone calls to that person is guilty of an offence punishable on summary conviction.

Clause 14: (1) Existing text of subsection 430(1.1):

(1.1) Every one commits mischief who wilfully

(a) destroys or alters data;

(b) renders data meaningless, useless or ineffective;

(d) obstructs, interrupts or interferes with any person in the lawful use of data or denies access to data to any person who is entitled to access thereto.

(2) Relevant portion of subsection 430(5):

(5) Every one who commits mischief in relation to data

(3) Relevant portion of subsection 430(5.1):

(5.1) Every one who wilfully does an act or wilfully omits to do an act that it is his duty to do, if that act or omission is likely to constitute mischief causing actual danger to life, or to constitute mischief in relation to property or data,

(4) Existing text of subsection 430(8):

(8) In this section, “data” has the same meaning as in section 342.1.

Clause 15: Existing text of sections 487.011 to 487.02:

487.011 The following definitions apply in sections 487.012 to 487.017.

“data” has the same meaning as in subsection 342.1(2).

“document” means any medium on which is recorded or marked anything that is capable of being read or understood by a person or a computer system or other device.

487.012 (1) A justice or judge may order a person, other than a person under investigation for an offence referred to in paragraph (3)(a),

(a) to produce documents, or copies of them certified by affidavit to be true copies, or to produce data; or

(b) to prepare a document based on documents or data already in existence and produce it.

(2) The order shall require the documents or data to be produced within the time, at the place and in the form specified and given

(a) to a peace officer named in the order; or

(b) to a public officer named in the order, who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament.

(3) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oath in writing, that there are reasonable grounds to believe that

(a) an offence against this Act or any other Act of Parliament has been or is suspected to have been committed;

(b) the documents or data will afford evidence respecting the commission of the offence; and

(4) The order may contain any terms and conditions that the justice or judge considers advisable in the circumstances, including terms and conditions to protect a privileged communication between a lawyer and their client or, in the province of Quebec, between a lawyer or a notary and their client.

(5) The justice or judge who made the order, or a judge of the same territorial division, may revoke, renew or vary the order on an ex parte application made by the peace officer or public officer named in the order.

(6) Sections 489.1 and 490 apply, with any modifications that the circumstances require, in respect of documents or data produced under this section.

(7) Every copy of a document produced under this section, on proof by affidavit that it is a true copy, is admissible in evidence in proceedings under this or any other Act of Parliament and has the same probative force as the original document would have if it had been proved in the ordinary way.

(8) Copies of documents produced under this section need not be returned.

487.013 (1) A justice or judge may order a financial institution, as defined in section 2 of the Bank Act, or a person or entity referred to in section 5 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, unless they are under investigation for an offence referred to in paragraph (4)(a), to produce in writing the account number of a person named in the order or the name of a person whose account number is specified in the order, the status and type of the account, and the date on which it was opened or closed.

(2) For the purpose of confirming the identity of the person named in the order or whose account number is specified in the order, the production order may require the financial institution, person or entity to produce that person’s date of birth, current address and any previous addresses.

(3) The order shall require the information to be produced within the time, at the place and in the form specified and given

(a) to a peace officer named in the order; or

(4) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oath in writing, that there are reasonable grounds to suspect that

(a) an offence against this Act or any other Act of Parliament has been or will be committed;

(b) the information will assist in the investigation of the offence; and

(5) The order may contain any terms and conditions that the justice or judge considers advisable in the circumstances, including terms and conditions to protect a privileged communication between a lawyer and their client or, in the province of Quebec, between a lawyer or a notary and their client.

(6) The justice or judge who made the order, or a judge of the same territorial division, may revoke, renew or vary the order on an ex parte application made by the peace officer or public officer named in the order.

487.014 (1) For greater certainty, no production order is necessary for a peace officer or public officer enforcing or administering this or any other Act of Parliament to ask a person to voluntarily provide to the officer documents, data or information that the person is not prohibited by law from disclosing.

(2) A person who provides documents, data or information in the circumstances referred to in subsection (1) is deemed to be authorized to do so for the purposes of section 25.

487.015 (1) A person named in an order made under section 487.012 and a financial institution, person or entity named in an order made under section 487.013 may, before the order expires, apply in writing to the judge who issued the order, or a judge of the same territorial division as the judge or justice who issued the order, for an exemption from the requirement to produce any document, data or information referred to in the order.

(2) A person, financial institution or entity may only make an application under subsection (1) if they give notice of their intention to do so to the peace officer or public officer named in the order, within 30 days after it is made.

(3) The execution of a production order is suspended in respect of any document, data or information referred to in the application for exemption until a final decision is made in respect of the application.

(4) The judge may grant the exemption if satisfied that

(a) the document, data or information would disclose information that is privileged or otherwise protected from disclosure by law;

(b) it is unreasonable to require the applicant to produce the document, data or information; or

487.016 No person is excused from complying with an order made under section 487.012 or 487.013 on the ground that the document, data or information referred to in the order may tend to incriminate them or subject them to any proceeding or penalty, but no document prepared by an individual under paragraph 487.012(1)(b) may be used or received in evidence against that individual in any criminal proceedings subsequently instituted against them, other than a prosecution under section 132, 136 or 137.

487.017 A financial institution, person or entity who does not comply with a production order made under section 487.012 or 487.013 is guilty of an offence and liable on summary conviction to a fine not exceeding $250,000 or imprisonment for a term not exceeding six months, or to both.

487.02 Where an authorization is given under section 184.2, 184.3, 186 or 188, a warrant is issued under this Act or an order is made under subsection 492.2(2), the judge or justice who gives the authorization, issues the warrant or makes the order may order any person to provide assistance, where the person’s assistance may reasonably be considered to be required to give effect to the authorization, warrant or order.

Clause 16: Relevant portion of the definition:

“primary designated offence” means

...

(a.1) an offence under any of the following provisions, namely,

Clause 17: Existing text of the heading:

Other Provisions respecting Search Warrants

Clause 18: Existing text of section 487.11:

487.11 A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.

Clause 19: (1) and (2) Relevant portion of subsection 487.3(1):

487.3 (1) A judge or justice may, on application made at the time of issuing a warrant under this or any other Act of Parliament or a production order under section 487.012 or 487.013, or of granting an authorization to enter a dwelling-house under section 529 or an authorization under section 529.4 or at any time thereafter, make an order prohibiting access to and the disclosure of any information relating to the warrant, production order or authorization on the ground that

...

(b) the ground referred to in paragraph (a) outweighs in importance the access to the information.

Clause 20: Relevant portion of the definition:

“designated offence” means

(a) an offence under any of the following provisions:

Clause 21: Existing text of sections 492.1 and 492.2:

492.1 (1) A justice who is satisfied by information on oath in writing that there are reasonable grounds to suspect that an offence under this or any other Act of Parliament has been or will be committed and that information that is relevant to the commission of the offence, including the whereabouts of any person, can be obtained through the use of a tracking device, may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant

(a) to install, maintain and remove a tracking device in or on any thing, including a thing carried, used or worn by any person; and

(b) to monitor, or to have monitored, a tracking device installed in or on any thing.

(2) A warrant issued under subsection (1) is valid for the period, not exceeding sixty days, mentioned in it.

(3) A justice may issue further warrants under this section.

(4) For the purposes of this section, “tracking device” means any device that, when installed in or on any thing, may be used to help ascertain, by electronic or other means, the location of any thing or person.

(5) On ex parte application in writing supported by affidavit, the justice who issued a warrant under subsection (1) or a further warrant under subsection (3) or any other justice having jurisdiction to issue such warrants may authorize that the tracking device be covertly removed after the expiry of the warrant

(a) under any terms or conditions that the justice considers advisable in the public interest; and

(b) during any specified period of not more than sixty days.

492.2 (1) A justice who is satisfied by information on oath in writing that there are reasonable grounds to suspect that an offence under this or any other Act of Parliament has been or will be committed and that information that would assist in the investigation of the offence could be obtained through the use of a number recorder, may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant

(a) to install, maintain and remove a number recorder in relation to any telephone or telephone line; and

(b) to monitor, or to have monitored, the number recorder.

(2) When the circumstances referred to in subsection (1) exist, a justice may order that any person or body that lawfully possesses records of telephone calls originated from, or received or intended to be received at, any telephone give the records, or a copy of the records, to a person named in the order.

(3) Subsections 492.1(2) and (3) apply to warrants and orders issued under this section, with such modifications as the circumstances require.

(4) For the purposes of this section, “number recorder” means any device that can be used to record or identify the telephone number or location of the telephone from which a telephone call originates, or at which it is received or is intended to be received.

Clause 22: New.