Bill C-30
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C-30
First Session, Forty-first Parliament,
60-61 Elizabeth II, 2011-2012
HOUSE OF COMMONS OF CANADA
BILL C-30
An Act to enact the Investigating and Preventing Criminal Electronic Communications Act and to amend the Criminal Code and other Acts
first reading, February 14, 2012
MINISTER OF PUBLIC SAFETY
90639
RECOMMENDATION
His Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to enact the Investigating and Preventing Criminal Electronic Communications Act and to amend the Criminal Code and other Acts”.
SUMMARY
Part 1 enacts the Investigating and Preventing Criminal Electronic Communications Act, which requires telecommunications service providers to put in place and maintain certain capabilities that facilitate the lawful interception of information transmitted by telecommunications and to provide basic information about their subscribers to the Royal Canadian Mounted Police, the Canadian Security Intelligence Service, the Commissioner of Competition and any police service constituted under the laws of a province.
Part 2 amends the Criminal Code in respect of authorizations to intercept private communications, warrants and orders and adds to that Act new investigative powers in relation to computer crime and the use of new technologies in the commission of crimes. Among other things, it
(a) provides that if an authorization is given under certain provisions of Part VI, the judge may at the same time issue a warrant or make an order that relates to the investigation in respect of which the authorization is given;
(b) provides that the rules respecting confidentiality that apply in respect of a request for an authorization to intercept private communications also apply in respect of a request for a related warrant or order;
(c) requires the Minister of Public Safety and Emergency Preparedness to report on the interceptions of private communications made without authorizations;
(d) provides that a person who has been the object of an interception made without an authorization must be notified of the interception within a specified period;
(e) permits a peace officer or a public officer, in certain circumstances, to install and make use of a number recorder without a warrant;
(f) extends to one year the maximum period of validity of a warrant for a tracking device and a number recorder if the warrant is issued in respect of a terrorism offence or an offence relating to a criminal organization;
(g) provides the power to make preservation demands and orders to compel the preservation of electronic evidence;
(h) provides new production orders to compel the production of data relating to the transmission of communications and the location of transactions, individuals or things;
(i) provides a warrant to obtain transmission data that will extend to all means of telecommunication the investigative powers that are currently restricted to data associated with telephones; and
(j) provides warrants that will enable the tracking of transactions, individuals and things and that are subject to legal thresholds appropriate to the interests at stake.
It also amends offences in the Criminal Code relating to hate propaganda and its communication over the Internet, false information, indecent communications, harassing communications, devices used to obtain telecommunication services without payment and devices used to obtain the unauthorized use of computer systems or to commit mischief.
Part 2 also amends the Competition Act to make applicable, for the purpose of enforcing certain provisions of that Act, the new provisions being added to the Criminal Code respecting demands and orders for the preservation of computer data and orders for the production of documents relating to the transmission of communications or financial data. It also modernizes the provisions of the Act relating to electronic evidence and provides for more effective enforcement in a technologically advanced environment.
Lastly, it amends the Mutual Legal Assistance in Criminal Matters Act to make some of the new investigative powers being added to the Criminal Code available to Canadian authorities executing incoming requests for assistance and to allow the Commissioner of Competition to execute search warrants under the Mutual Legal Assistance in Criminal Matters Act.
Part 3 contains coordinating amendments and coming-into-force provisions.
Also available on the Parliament of Canada Web Site at the following address:
http://www.parl.gc.ca
http://www.parl.gc.ca
TABLE OF PROVISIONS
AN ACT TO ENACT THE INVESTIGATING AND PREVENTING CRIMINAL ELECTRONIC COMMUNICATIONS ACT AND TO AMEND THE CRIMINAL CODE AND OTHER ACTS
SHORT TITLE
1. Protecting Children from Internet Predators Act
PART 1
INVESTIGATING AND PREVENTING CRIMINAL ELECTRONIC COMMUNICATIONS ACT
Enactment of Act
2. Enactment
AN ACT REGULATING TELECOMMUNICATIONS FACILITIES TO SUPPORT INVESTIGATIONS
SHORT TITLE
1. Investigating and Preventing Criminal Electronic Communications Act
INTERPRETATION
2. Definitions
PURPOSE
3. Purpose
HER MAJESTY
4. Act binding on Her Majesty
APPLICATION
5. Exclusions — Schedule 1
OBLIGATIONS
Obligations Concerning Interceptions
6. Obligation to have capabilities
7. Operational requirements for transmission apparatus
8. No degradation of capabilities
9. Maintaining capabilities in respect of new services
10. Beginning to operate transmission apparatus
11. New software
12. Global limit
13. Order suspending obligations
14. Ministerial orders
15. Statutory Instruments Act does not apply
Obligations Concerning Subscriber Information
16. Provision of subscriber information
17. Exceptional circumstances
18. Creation of record by designated person
19. Use of information
20. Internal audit
21. Entitlement to fee
22. Preservation of existing authority
23. Deemed nature of information
Miscellaneous Provisions
24. Facility and service information
25. Obligation to assist — assessment and testing
26. Notification of change
27. Notification — simultaneous interception capability
28. Persons engaged in interceptions
29. Specialized telecommunications support
30. Mandatory reporting — acquisition of transmission apparatus
31. No redundant performance required
EXEMPTIONS
32. Exemption regulation
ADMINISTRATION AND ENFORCEMENT
33. Designation
34. Authority to enter
35. Warrant for dwelling-house
36. Entry onto private property
37. Use of force
38. False statements or information
ADMINISTRATIVE MONETARY PENALTIES
Violations
39. Violations
40. Designation
Notices of Violation
41. Issuance and service
Determination of Responsibility and Penalty
42. Options
43. Making representations
Appeal to Minister
44. Right of appeal
Rules About Violations
45. Vicarious liability — acts of employees, agents and mandataries
46. Officers of corporations, etc.
47. Defence of due diligence
48. Continuing violation
49. Limitation period or prescription
50. Violation or offence
51. Admissibility of documents
Recovery of Penalties and Other Amounts
52. Debts to Her Majesty
53. Certificate
OFFENCES AND PUNISHMENT
54. Misleading statements and information
55. Offence
56. Offence
57. Offence
58. Consent of Attorney General of Canada required
59. Defence of due diligence
60. Officers of corporations, etc.
61. Continuing offence
62. Limitation period or prescription
63. Injunctions
REGULATIONS
64. Regulations
COMPENSATION
65. Consolidated Revenue Fund
66. Compensation
REVIEW OF ACT
67. Review
SCHEDULE 1
EXCLUSIONS FROM THE APPLICATION OF THE ACT
SCHEDULE 2
PARTIAL APPLICATION OF THE ACT
Transitional Provisions
3. Delayed application — section 10 of Act
4. Presumption — operational requirements
5. Mandatory reporting — existing service providers
PART 2
AMENDMENTS TO THE CRIMINAL CODE AND OTHER ACTS
6-29. Criminal Code
30-37. Competition Act
38-47. Mutual Legal Assistance in Criminal Matters Act
PART 3
COORDINATING AMENDMENTS AND COMING INTO FORCE
Coordinating Amendments
48. 2010, c. 23
49. Bill C-12
Coming into Force
50. Order in council
SCHEDULE
1st Session, 41st Parliament,
60-61 Elizabeth II, 2011-2012
house of commons of canada
BILL C-30
An Act to enact the Investigating and Preventing Criminal Electronic Communications Act and to amend the Criminal Code and other Acts
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 Protecting Children from Internet Predators Act.
PART 1
INVESTIGATING AND PREVENTING CRIMINAL ELECTRONIC COMMUNICATIONS ACT
Enactment of Act
Enactment
2. The Investigating and Preventing Criminal Electronic Communications Act, whose text is as follows and whose Schedules 1 and 2 are set out in the schedule to this Act, is hereby enacted:
An Act regulating telecommunications facilities to support investigations
SHORT TITLE
Short title
1. This Act may be cited as the Investigating and Preventing Criminal Electronic Communications Act.
INTERPRETATION
Definitions
2. (1) The following definitions apply in this Act.
“authorized”
« autorisée »
« autorisée »
“authorized”, in relation to a person, means having authority, under the Criminal Code or the Canadian Security Intelligence Service Act, to intercept communications.
“communication”
« communication »
« communication »
“communication” means a communication effected by a means of telecommunication and includes any related telecommunications data or other ancillary information.
“intercept”
« intercepter »
« intercepter »
“intercept” includes listen to, record or acquire a communication or acquire the substance, meaning or purport of the communication.
“Minister”
« ministre »
« ministre »
“Minister” means the Minister of Public Safety and Emergency Preparedness.
“person”
« personne »
« personne »
“person” includes a partnership, an unincorporated organization, a government, a government agency and any other person or entity that acts in the name of or for the benefit of another.
“prescribed” Version anglaise seulement
“prescribed” means prescribed by the regulations.
“telecommunications data”
« données de télécommunication »
« données de télécommunication »
“telecommunications data” means data relating to the telecommunications functions of dialling, routing, addressing or signalling that identifies or purports to identify the origin, type, direction, date, time, duration, size, destination or termination of a telecommunication generated or received by means of a telecommunications facility or the type of telecommunications service used. It also means any transmission data that may be obtained under subsection 492.2(1) of the Criminal Code.
“telecommunications facility”
« installation de télécommunication »
« installation de télécommunication »
“telecommunications facility” means any facility, apparatus or other thing that is used for telecommunications or for any operation directly connected with telecommunications.
“telecommunications service”
« service de télécommunication »
« service de télécommunication »
“telecommunications service” means a service, or a feature of a service, that is provided by means of telecommunications facilities, whether the provider owns, leases or has any other interest in or right respecting the telecommunications facilities and any related equipment used to provide the service.
“telecommunications service provider”
« télécommunicateur »
« télécommunicateur »
“telecommunications service provider” means a person that, independently or as part of a group or association, provides telecommunications services.
“transmission apparatus”
« appareil de transmission »
« appareil de transmission »
“transmission apparatus” means any apparatus of a prescribed class whose principal functions are one or more of the following:
(a) the switching or routing of communications;
(b) the input, capture, storage, organization, modification, retrieval, output or other processing of communications;
(c) the control of the speed, code, protocol, content, format, switching or routing or similar aspects of communications; or
(d) any other function that is similar to one described in paragraphs (a) to (c).
Preservation of existing powers
(2) Nothing in this Act derogates from any power in the Criminal Code, the Canadian Security Intelligence Service Act or Part V.1 of the National Defence Act to intercept communications or to request that telecommunications service providers assist in such interceptions.
PURPOSE
Purpose
3. The purpose of this Act is to ensure that telecommunications service providers have the capability to enable national security and law enforcement agencies to exercise their authority to intercept communications and to require telecommunications service providers to provide subscriber and other information, without unreasonably impairing the privacy of individ-uals, the provision of telecommunications services to Canadians or the competitiveness of the Canadian telecommunications industry.
HER MAJESTY
Act binding on Her Majesty
4. This Act is binding on Her Majesty in right of Canada or of a province.
APPLICATION
Exclusions — Schedule 1
5. (1) This Act does not apply to telecommunications service providers in respect of the telecommunications services specified in Part 1 of Schedule 1 or to the telecommunications service providers in the classes listed in Part 2 of that Schedule in respect of the activities specified in that Part for that class.
Partial application — Schedule 2, Part 1
(2) This Act — other than sections 8, 9, 14, 15, 24 to 26, 28 and 32 to 64 — does not apply to the telecommunications service providers in the classes listed in Part 1 of Schedule 2 in respect of the activities specified in that Part for that class.
Partial application — Schedule 2, Part 2
(3) This Act, other than section 24, does not apply to the telecommunications service providers in the classes listed in Part 2 of Schedule 2 in respect of the activities specified in that Part for that class.
Amendment of Schedules
(4) The Governor in Council may, by regulation, amend Schedule 1 or 2 by adding, deleting or changing a telecommunications service, an activity or a class of telecommunications service providers.
OBLIGATIONS
Obligations Concerning Interceptions
Obligation to have capabilities
6. (1) For the purpose of enabling authorized persons to exercise their authority to intercept communications, every telecommunications service provider must have the capa-bility to do the following:
(a) provide intercepted communications to authorized persons; and
(b) provide authorized persons with the prescribed information that is in the possession or control of the service provider respecting the location of equipment used in the transmission of communications.
Confidentiality and security measures
(2) A telecommunications service provider, in connection with the interception of communications, must comply with any prescribed confidentiality or security measures.
Obligations for treated communications
(3) If an intercepted communication is encoded, compressed, encrypted or otherwise treated by a telecommunications service provid-er, the service provider must use the means in its control to provide the intercepted communication in the same form as it was before the communication was treated by the service provider.
Exceptions
(4) Despite subsection (3), a telecommunications service provider is not required to make the form of an intercepted communication the same as it was before the communication was treated if
(a) the service provider would be required to develop or acquire decryption techniques or decryption tools; or
(b) the treatment is intended only for the purposes of generating a digital signature or for certifying a communication by a prescribed certification authority, and has not been used for any other purpose.
Providing information as requested
(5) A telecommunications service provider that is capable of providing intercepted communications to an authorized person in more than one form or manner that conforms with the regulations must provide them in whichever of those forms or manners the authorized person requires.
Operational requirements for transmission apparatus
7. The operational requirements in respect of any transmission apparatus are that the telecommunications service provider operating the apparatus have the capability to do the following:
(a) enable the interception of communications generated by or transmitted through the apparatus to or from any temporary or permanent user of the service provider’s telecommunications services;
(b) isolate the communication that is authorized to be intercepted from other information, including
(i) isolating the communications of the person whose communications are authorized to be intercepted from those of other persons, and
(ii) isolating the telecommunications data of the person whose communications are authorized to be intercepted from the rest of the person’s communications;
(c) provide prescribed information that permits the accurate correlation of all elements of intercepted communications; and
(d) enable simultaneous interceptions by authorized persons from multiple national security and law enforcement agencies of communications of multiple users, including enabling
(i) at least the minimum number of those interceptions, and
(ii) any greater number of those interceptions — up to the maximum number — for the period that an agency requests.
No degradation of capabilities
8. A telecommunications service provider that meets, in whole or in part, an operational requirement in respect of transmission apparatus that the service provider operates must continue to so meet that operational requirement.
Maintaining capabilities in respect of new services
9. A telecommunications service provider that meets, in whole or in part, an operational requirement in respect of transmission apparatus that the service provider operates in connection with any of the service provider’s telecommunications services must meet that operational requirement to the same extent in respect of any new service that the service provider begins to provide using that apparatus.
Beginning to operate transmission apparatus
10. (1) A telecommunications service pro-vider that begins to operate any transmission apparatus for the purpose of providing telecommunications services must meet the operational requirements in respect of the apparatus, whether by means of the apparatus itself or by any other means.
Acquisition from another provider
(2) Subsection (1) does not apply in respect of transmission apparatus that a telecommunications service provider acquires from another telecommunications service provider and operates in order to continue to provide the same telecommunications service to approximately the same users. However, the acquiring service provider must continue to meet any operational requirements in respect of the transmission apparatus that the service provider from whom it was acquired was obligated to meet.
New software
11. (1) When a telecommunications service provider installs new software for any transmission apparatus that the service provider operates, the service provider must meet the operational requirements in respect of that apparatus to the extent that would be enabled by the installation of the software in the form available from the software’s manufacturer that would most increase the service provider’s ability to meet those operational requirements.
Other software licences or telecommunications facilities
(2) Subsection (1) applies even if the form of the software in question would require the telecommunications service provider to acquire additional software licences or telecommunications facilities to achieve that increased ability.
Global limit
12. Subject to section 14, a telecommunications service provider is not required, under sections 8 to 11, to increase the service provider’s capability to enable simultaneous interceptions beyond the applicable global limit.
Order suspending obligations
13. (1) The Minister may, by order made on the application of a telecommunications service provider, suspend in whole or in part any obligation of the service provider to meet an operational requirement that would arise from the operation of section 10 or 11.
Applications
(2) The application must
(a) specify the operational requirement with respect to which an order is sought;
(b) set out the reasons for making the application;
(c) include a plan that
(i) sets out the measures by which and the time within which the telecommunica-tions service provider proposes to meet the operational requirement specified in accordance with paragraph (a),
(ii) describes any measures that the service provider proposes to take to improve the service provider’s capability to meet the operational requirements, even if they are not yet applicable, and
(iii) identifies the stages at which and methods by which the Minister can measure progress in the implementation of the plan and the time, manner and form for reports the service provider proposes to make to the Minister; and
(d) conform with the prescribed requirements relating to the content or form of the application or the manner in which it is to be made.
Considerations
(3) In deciding whether to make an order, the Minister must take into account the public interest in national security and law enforcement and the commercial interests of the telecommunications service provider as well as any other matter that the Minister considers relevant.
Notification of decision
(4) The Minister must, within 120 days after the day on which the Minister receives the application, notify the applicant of the Minister’s decision to accept or refuse it and, if no notification has been received by the applicant at the end of that period, the Minister is deemed to have refused the application.
Conditions and term of order
(5) In the order, the Minister may include any conditions that the Minister considers appropriate and must fix its term for a period of not more than three years.
Obligation to comply with conditions of order
(6) The telecommunications service provider must comply with the conditions of the order as soon as the service provider begins to operate the telecommunications apparatus or installs the new software, as the case may be.
Notice of revocation
(7) The Minister may revoke an order on written notice to the telecommunications service provider if
(a) the service provider has contravened this Act, the regulations or the conditions of the order; or
(b) the order was obtained through misrepresentation.
Amendment
(8) The Minister may amend an order with the consent of the telecommunications service provider.
Ministerial orders
14. (1) The Minister may, at the request of the Commissioner of the Royal Canadian Mounted Police or the Director of the Canadian Security Intelligence Service and if in the Minister’s opinion it is necessary to do so, order a telecommunications service provider
(a) to comply with any obligation under subsections 6(1) and (2) in a manner or within a time that the Minister specifies;
(b) to enable, in a manner or within a time that the Minister specifies, a number of simultaneous interceptions greater than any maximum or limit that would otherwise apply;
(c) to comply, in a manner or within a time that the Minister specifies, with any confidentiality or security measures respecting interceptions that the Minister specifies in addition to those referred to in subsection 6(2);
(d) to meet an operational requirement in respect of transmission apparatus operated by the service provider that the service provider would not otherwise be required to meet; or
(e) to meet an operational requirement in respect of transmission apparatus operated by the service provider in a manner or within a time that the Minister specifies.
Limitation
(2) The Minister is not authorized to make an order under subsection (1) in respect of a telecommunications service provider in relation to a telecommunications service specified in Part 1 of Schedule 1 or in respect of a telecommunications service provider in a class listed in Part 2 of Schedule 1 or Part 2 of Schedule 2 in relation to the activities specified for that class in Part 2 of Schedule 1 or Part 2 of Schedule 2, as the case may be.
Compensation
(3) The Commissioner of the Royal Canadian Mounted Police or the Director of the Canadian Security Intelligence Service, as the case may be, must pay the telecommunications service provider an amount that the Minister considers reasonable towards the expenses that the Minister considers are necessary for the service provider to incur initially to comply with an order made under this section.
Equipment
(4) The Minister may provide the telecommunications service provider with any equipment or other thing that the Minister considers the service provider needs to comply with an order made under this section.
Non-application of sections 8 and 9
(5) Sections 8 and 9 do not apply in respect of any equipment or other thing provided by the Minister under subsection (4). However, the telecommunications service provider must provide notice to the Minister of any problems with the equipment or other thing provided and provide assistance in resolving the problem.
Order prevails
(6) An order made by the Minister under subsection (1) prevails over any regulations, to the extent of any inconsistency.
Delegation
(7) The Commissioner of the Royal Canadian Mounted Police and the Director of the Canadian Security Intelligence Service may delegate his or her power to pay amounts under subsection (3) to, respectively, a member of a prescribed class of senior officers of the Royal Canadian Mounted Police or a member of a prescribed class of senior officials of the Canadian Security Intelligence Service.
Statutory Instruments Act does not apply
15. The Statutory Instruments Act does not apply in respect of an order made under section 13 or 14.
Obligations Concerning Subscriber Information
Provision of subscriber information
16. (1) On written request by a person designated under subsection (3) that includes prescribed identifying information, every telecommunications service provider must provide the person with identifying information in the service provider’s possession or control respecting the name, address, telephone number and electronic mail address of any subscriber to any of the service provider’s telecommunications services and the Internet protocol address and local service provider identifier that are associated with the subscriber’s service and equipment.
Purpose of the request
(2) A designated person must ensure that he or she makes a request under subsection (1) only in performing, as the case may be, a duty or function
(a) of the Canadian Security Intelligence Service under the Canadian Security Intelligence Service Act;
(b) of a police service, including any related to the enforcement of any laws of Canada, of a province or of a foreign jurisdiction; or
(c) of the Commissioner of Competition under the Competition Act.
Designated persons
(3) The Commissioner of the Royal Canadian Mounted Police, the Director of the Canadian Security Intelligence Service, the Commissioner of Competition and the chief or head of a police service constituted under the laws of a province may designate for the purposes of this section any employee of his or her agency, or a class of such employees, whose duties are related to protecting national security or to law enforcement.
Limit on number of designated persons
(4) The number of persons designated under subsection (3) in respect of a particular agency may not exceed the greater of five and the number that is equal to five per cent of the total number of employees of that agency.
Delegation
(5) The Commissioner of the Royal Canadian Mounted Police and the Director of the Canadian Security Intelligence Service may delegate his or her power to designate persons under subsection (3) to, respectively, a member of a prescribed class of senior officers of the Royal Canadian Mounted Police or a member of a prescribed class of senior officials of the Canadian Security Intelligence Service.
Exceptional circumstances
17. (1) Any police officer may, orally or in writing, request a telecommunications service provider to provide the officer with the information referred to in subsection 16(1) in the following circumstances:
(a) the officer believes on reasonable grounds that the urgency of the situation is such that the request cannot, with reasonable diligence, be made under that subsection;
(b) the officer believes on reasonable grounds that the information requested is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property; and
(c) the information directly concerns either the person who would perform the act that is likely to cause the harm or is the victim, or intended victim, of the harm.
The police officer must inform the telecommunications service provider of his or her name, rank, badge number and the agency in which he or she is employed and state that the request is being made in exceptional circumstances and under the authority of this subsection.
Obligation of telecommunications service provider
(2) The telecommunications service provider must provide the information to the police officer as if the request were made by a designated person under subsection 16(1).
Communication
(3) The police officer must, within 24 hours after making a request under subsection (1), communicate to a designated person employed in the same agency as the officer all of the information relating to the request that would be necessary if it had been made under subsection 16(1) and inform that person of the circumstances referred to in paragraphs (1)(a) to (c).
Notice
(4) On receiving the information, the designated person must in writing inform the telecommunications service provider that the request was made in exceptional circumstances under the authority of subsection (1).
Creation of record by designated person
18. (1) A designated person who makes a request under subsection 16(1), or who receives information under subsection 17(3), must create a record that
(a) in the case of a request made under subsection 16(1), identifies the duty or function referred to in subsection 16(2) in the performance of which the request is made, describes the relevance of the information requested to that duty or function and includes any other information that justifies the request and any other prescribed information; and
(b) in the case where the designated person receives information under subsection 17(3), includes the information referred to in paragraph (a) as well as the circumstances referred to in paragraphs 17(1)(a) to (c).
Retention of records and dealing with information
(2) The agency that employs the designated person must retain records created under subsection (1) and deal with the information provided in response to requests made under subsection 16(1) or 17(1).
Use of information
19. Information that is provided in response to a request made under subsection 16(1) or 17(1) must not, without the consent of the individual to whom it relates, be used by the agency in which the designated person or police officer is employed except for the purpose for which the information was obtained or for a use consistent with that purpose.
Internal audit
20. (1) The Commissioner of the Royal Canadian Mounted Police, the Director of the Canadian Security Intelligence Service, the Commissioner of Competition and any chief or head of a police service constituted under the laws of a province who makes a designation under subsection 16(3) must cause internal audits to be regularly conducted of the practices of his or her agency to ensure compliance with sections 16 to 19 and the regulations made for the purposes of those sections and of the internal management and information systems and controls concerning requests made under sections 16 and 17.
Report to responsible minister
(2) The person who causes an internal audit to be conducted must, without delay, report on the findings of the audit to the responsible minister.
Copy of report
(3) A copy of the report on the findings of the audit must be provided by that person
(a) if it concerns the Royal Canadian Mounted Police or the Commissioner of Competition, to the Privacy Commissioner appointed under section 53 of the Privacy Act;
(b) if it concerns the Canadian Security Intelligence Service, to the Security Intelligence Review Committee established by subsection 34(1) of the Canadian Security Intelligence Service Act; and
(c) if it concerns a police service constituted under the laws of a province, to the public officer for that province whose duties include investigations relating to the protection of privacy.
Audit — Privacy Commissioner
(4) The Privacy Commissioner may, on reasonable notice, conduct an audit of the practices of the Royal Canadian Mounted Police or the Commissioner of Competition to ensure compliance with sections 16 to 19 and the regulations made for the purposes of those sections and of the internal management and information systems and controls concerning requests made under sections 16 and 17. The provisions of the Privacy Act apply, with any necessary modifications, in respect of the audit as if it were an investigation under that Act.
Audit — Security Intelligence Review Committee
(5) For greater certainty, the functions of the Security Intelligence Review Committee under section 38 of the Canadian Security Intelligence Service Act include the power to conduct an audit of the practices of the Canadian Security Intelligence Service to ensure compliance with sections 16, 18 and 19 and the regulations made for the purposes of those sections and of the internal management and information systems and controls concerning requests made under section 16.
Report concerning provincial audit capability
(6) The Privacy Commissioner must, in the report made to Parliament for each financial year, identify the public officers to whom copies of reports are to be provided under paragraph (3)(c) and report on the powers that they have to conduct audits similar to those referred to in subsection (4) with respect to the police services constituted under the laws of their province.
Records of service provider
(7) A person conducting an internal audit under this section may require a telecommunications service provider to give the person access to any records in the possession or control of the service provider that are relevant to the audit.
Definition of “responsible minister”
(8) For the purposes of this section, “responsible minister” means
(a) in relation to the Commissioner of the Royal Canadian Mounted Police and the Director of the Canadian Security Intelligence Service, the Minister of Public Safety and Emergency Preparedness;
(b) in relation to the Commissioner of Competition, the Minister of Industry; and
(c) in relation to the chief or head of a police service constituted under the laws of a province, the Attorney General of that province.
Entitlement to fee
21. (1) A telecommunications service pro-vider that provides information to a person under section 16 or 17 is entitled to be paid the prescribed fee for providing the information.
Payment of fee by designating authority
(2) If the information is requested by a designated person under section 16, the fee is to be paid by the designating authority.
Payment of fee by police service
(3) If the information is requested by a police officer under section 17, the fee is to be paid by the chief or head of the police service that employs the police officer.
Preservation of existing authority
22. Nothing in this Act derogates from any other authority under law to obtain the information referred to in subsection 16(1) from a telecommunications service provider.
Deemed nature of information
23. Personal information, as defined in subsection 2(1) of the Personal Information Protection and Electronic Documents Act, that is provided under subsection 16(1) or 17(1) is deemed, for the purposes of subsections 9(2.1) to (2.4) of that Act, to be disclosed under subparagraph 7(3)(c.1)(i) or (ii), and not under paragraph 7(3)(i), of that Act. This section operates despite the other provisions of Part 1 of that Act.
Miscellaneous Provisions
Facility and service information
24. (1) A telecommunications service provider must, on the request of a police officer or of an employee of the Royal Canadian Mounted Police or the Canadian Security Intelligence Service,
(a) provide the prescribed information relating to the service provider’s telecommunications facilities;
(b) indicate what telecommunications serv-ices the service provider offers to subscribers; and
(c) provide the name, address and telephone number of any telecommunications service providers from whom the service provider obtains or to whom the service provider provides telecommunications services, if the service provider has that information.
Obligation to provide information to authorized persons
(2) A telecommunications service provider must, on the request of an authorized person, provide the prescribed information concerning
(a) telecommunications services that are provided by the service provider to a person whose communications are the subject of a court order authorizing their interception; and
(b) telecommunications facilities that are used by the service provider in providing those telecommunications services.
Obligation to assist — assessment and testing
25. A telecommunications service provider must, on the request of a police officer or of an employee of the Royal Canadian Mounted Police or the Canadian Security Intelligence Service, provide all reasonable assistance to permit the police officer or employee to assess or to test the service provider’s telecommunications facilities that may be used to intercept communications.
Notification of change
26. If the Canadian Security Intelligence Service or a law enforcement agency has provided a telecommunications service provider with any equipment or other thing for intercepting communications, the service provider must, before making any change to the service provider’s telecommunications facilities that is likely to impair or reduce the interception capability of the equipment or other thing, notify the Canadian Security Intelligence Serv-ice or law enforcement agency, as the case may be, of the change.
Notification — simultaneous interception capability
27. A telecommunications service provider must notify the Minister when
(a) in respect of any particular transmission apparatus, the increased number of simultaneous interceptions that the service provider is required, as a result of a request referred to in subparagraph 7(d)(ii), to be capable of enabling is 75% or more of the maximum number that is applicable under that subparagraph; or
(b) the number of simultaneous interceptions that the service provider is required, under sections 8 to 11, to be capable of enabling is 75% or more of the global limit that is applicable under section 12.
Persons engaged in interceptions
28. (1) A telecommunications service provider must, on the request of the Royal Canadian Mounted Police or the Canadian Security Intelligence Service, provide a list of the names of the persons who are employed by or carrying out work for the service provider who may assist in the interception of communications.
Changes to the list
(2) A telecommunications service provider must provide any changes to the list to the agency who made the request.
Security assessments
(3) The Royal Canadian Mounted Police or the Canadian Security Intelligence Service may conduct an investigation for the purposes of a security assessment of any of those persons who consent to the investigation.
Specialized telecommunications support
29. (1) If the prescribed conditions are met, a telecommunications service provider that provides under this Act prescribed specialized telecommunications support to the Canadian Security Intelligence Service or a law enforcement agency is entitled, on request, to be paid an amount determined in accordance with the regulations for providing that support.
Payment
(2) The amount must be paid by the agency that received the specialized telecommunications support.
Mandatory reporting — acquisition of transmission apparatus
30. (1) A telecommunications service pro-vider that acquires transmission apparatus referred to in subsection 10(2) must, before using it in providing telecommunications serv-ices, submit to the Minister a report in the prescribed form and manner containing the following information:
(a) the prescribed information concerning the extent to which the service provider meets operational requirements in respect of the transmission apparatus; and
(b) any prescribed information relevant to the administration of this Act.
Other reporting
(2) A telecommunications service provider must, at the request of the Minister, submit a report in the form and manner, and within the period, that the Minister specifies containing the information referred to in paragraphs (1)(a) and (b) and any additional related information that the Minister specifies.
Statement
(3) Every report submitted under this section must include a written statement certifying that it does not contain any untrue statements or omissions of material facts, that it fairly presents the telecommunications service provider’s operations at the time of submission and that the signator has taken steps to ensure the report’s accuracy and promises to correct any material error that is detected in the report after its submission and to submit a revised report to the Minister as soon as possible, with another similar written statement accompanying it.
Signator of statement
(4) The statement must be signed
(a) if the telecommunications service provid-er is a corporation, by one of its officers or directors; and
(b) in any other case, by an individual who is an owner of the telecommunications service provider or by an officer or a director of a corporation that is an owner of the telecommunications service provider.
No redundant performance required
31. If two or more telecommunications service providers have, in effect, the same obligation under this Act in connection with any given transmission apparatus or a given interception and any one of them performs that obligation, it is deemed to be performed by all.
EXEMPTIONS
Exemption regulation
32. (1) The Governor in Council may, on the recommendation of the Minister and the Minister of Industry, by regulation, exempt any class of telecommunications service providers from all or part of the obligations under any of sections 6, 9 to 11, 16, 17 and 30 or under any regulations made for the purposes of those sections.
Considerations
(2) Before making or amending such a regulation, the Governor in Council must consider
(a) the extent to which the exemption would adversely affect national security or law enforcement;
(b) whether the telecommunications service providers can comply with the obligations from which they would be exempted;
(c) whether the costs of compliance with those obligations would have an unreasonable adverse effect on the business of the telecommunications service providers; and
(d) whether compliance with those obligations would unreasonably impair the provision of telecommunications services to Canadians or the competitiveness of the Canadian telecommunications industry.
Conditions and term of regulation
(3) In the regulation, the Governor in Council may include any conditions that the Governor in Council considers appropriate and must fix its term for a period of not more than two years.
Exemptions related to section 10 or 11
(4) When a regulation under which a telecommunications service provider is exempted from an obligation under section 10 or 11 expires or is repealed, section 10 or 11, as the case may be, applies to the telecommunications service provider that was exempted as of the date of expiry or repeal as if the exemption had never been made.
ADMINISTRATION AND ENFORCEMENT
Designation
33. (1) The Minister may designate persons or classes of persons as inspectors for the purposes of the administration and enforcement of this Act.
Certificate of designation
(2) An inspector is to receive a certificate attesting to their designation and must, on request, present the certificate to any person appearing to be in charge of any place that the inspector enters under subsection 34(1).
Authority to enter
34. (1) An inspector may, for a purpose related to verifying compliance with this Act, enter any place owned by, or under the control of, any telecommunications service provider in which the inspector has reasonable grounds to believe there is any document, information, transmission apparatus, telecommunications facility or any other thing to which this Act applies.
Powers on entry
(2) The inspector may, for that purpose,
(a) examine any document, information or thing found in the place and open or cause to be opened any container or other thing;
(b) examine or test or cause to be tested any telecommunications facility or transmission apparatus or related equipment found in the place;
(c) use, or cause to be used, any computer system in the place to search and examine any information contained in or available to the system;
(d) reproduce, or cause to be reproduced, any information in the form of a printout, or other intelligible output, and remove the printout, or other output, for examination or copying; or
(e) use, or cause to be used, any copying equipment or means of telecommunication at the place.
Duty to assist
(3) The owner or person in charge of the place and every person in the place must give all assistance that is reasonably required to enable the inspector to perform their functions under this section and must provide any documents or information, and access to any data, that are reasonably required for that purpose.
Inspector may be accompanied
(4) The inspector may be accompanied by any other person that they believe is necessary to help them perform their functions under this section.
Warrant for dwelling-house
35. (1) If the place referred to in subsection 34(1) is a dwelling-house, the inspector may enter it without the occupant’s consent only under the authority of a warrant issued under subsection (2).
Authority to issue warrant
(2) On ex parte application, a justice of the peace may issue a warrant authorizing the inspector to enter a dwelling-house, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that
(a) the dwelling-house is a place referred to in subsection 34(1);
(b) entry to the dwelling-house is necessary for a purpose related to verifying compliance with this Act; and
(c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused by, or that consent to entry cannot be obtained from, the occupant.
Entry onto private property
36. An inspector and any person accompanying them may enter private property — other than a dwelling-house — and pass through it in order to gain entry to a place referred to in subsection 34(1). For greater certainty, they are not liable for doing so.
Use of force
37. In executing a warrant to enter a dwelling-house, an inspector may use force only if the use of force has been specifically authorized in the warrant and they are accompanied by a peace officer.
False statements or information
38. (1) A person must not knowingly make a false or misleading statement or provide false or misleading information, in connection with any matter under this Act, to an inspector who is performing their functions under section 34.
Obstruction
(2) A person must not obstruct or hinder an inspector who is performing their functions under section 34.
ADMINISTRATIVE MONETARY PENALTIES
Violations
Violations
39. Every person who contravenes a provision, order, requirement or condition designated under subparagraph 64(1)(p)(i) commits a violation and is liable to an administrative monetary penalty not exceeding the prescribed maximum or, if no maximum has been prescribed, to a penalty not exceeding $50,000, in the case of an individual, and $250,000, in any other case.
Designation
40. For the purposes of any of sections 39 and 41 to 53, the Minister may designate persons or classes of persons to exercise powers in relation to any matter referred to in the designation.
Notices of Violation
Issuance and service
41. (1) A designated person may issue a notice of violation and cause it to be served on a person if they believe on reasonable grounds that the person has committed a violation.
Contents of notice
(2) The Minister may establish the form and content of notices of violation, but each notice of violation must
(a) set out the name of the person believed to have committed the violation;
(b) identify the violation;
(c) set out the penalty that the person is liable to pay;
(d) inform the person that they may, within 30 days after the day on which the notice is served or within any longer period specified in it, either pay the penalty set out in the notice or make representations with respect to the alleged violation or penalty — including any representations about entering into a compliance agreement — and set out the manner for doing so; and
(e) inform the person that, if they fail to pay the penalty or make representations in accordance with the notice, they will be considered to have committed the violation and the penalty will be imposed.
Criteria for penalty
(3) The amount of a penalty is, in each case, to be determined taking into account the following matters:
(a) that administrative monetary penalties have as their purpose to encourage compliance rather than to punish;
(b) the nature and scope of the violation;
(c) the person’s history of prior violations or convictions — or compliance agreements entered into — under this Act during the five-year period immediately before the violation;
(d) the cumulative amount of the penalties that may be imposed for any violation in respect of which section 48 applies;
(e) any prescribed criteria; and
(f) any other relevant matter.
Determination of Responsibility and Penalty
Options
42. (1) A person who is served with a notice of violation must, in accordance with the notice, pay the penalty set out in the notice or make representations with respect to the amount of the penalty or the acts or omissions that constitute the alleged violation.
Deemed violation
(2) A person is deemed to have committed the violation if they either pay the penalty in accordance with the notice of violation or do not pay the penalty and do not make representations in accordance with the notice of violation.
Making representations
43. (1) The person alleged to have committed a violation may make representations to a designated person other than the one who issued the notice of violation.
Compliance agreement or decision
(2) The designated person to whom the representations are made must either
(a) enter into a compliance agreement with the person on behalf of the Minister; or
(b) decide on a balance of probabilities whether the person committed the violation and, if so, impose the penalty set out in the notice of violation, a lesser penalty or no penalty, taking into account the matters mentioned in subsection 41(3).
The designated person must cause notice of any decision made under paragraph (b) to be issued and served on the person together with written reasons for the decision and notice of the person’s right of appeal under subsection 44(1).
Terms of compliance agreements
(3) A compliance agreement
(a) may include any terms that the designated person considers appropriate including a requirement that the person alleged to have committed a violation give reasonable securi-ty — in a form and an amount that the designated person considers satisfactory — for the person’s performance of the agreement; and
(b) must provide for payment by the person alleged to have committed a violation to the Receiver General of a specified amount not greater than the penalty set out in the notice of violation if the person does not comply with the agreement.
Agreement ends proceedings
(4) Entry into a compliance agreement ends the violation proceedings and precludes any further violation or offence proceedings in relation to the act or omission in question.
If agreement not complied with
(5) The Minister may issue and serve a notice of default on a person who has entered into a compliance agreement but has not complied with it. On service of the notice, the person is liable to pay without delay the amount provided for in the agreement, failing which, the Minister may realize any security for the person’s performance of the agreement.
Appeal to Minister
Right of appeal
44. (1) A person served with notice of a decision made under paragraph 43(2)(b) may, within 30 days after the day on which the notice is served or within any longer period that the Minister allows in accordance with the regulations, appeal the decision to the Minister.
Powers of Minister
(2) On an appeal, the Minister may confirm, set aside or vary the decision of the designated person.
Rules About Violations
Vicarious liability — acts of employees, agents and mandataries
45. A person is liable for a violation that is committed by the person’s employee acting in the course of his or her employment or the person’s agent or mandatary acting within the scope of his or her authority, whether or not the employee, agent or mandatary who actually committed the violation is identified or proceeded against.
Officers of corporations, etc.
46. An officer, director, agent or mandatary of a person other than an individual that commits a violation is a party to the violation if he or she directed, authorized, assented to, acquiesced in or participated in the commission of the violation and is liable to the administrative monetary penalty provided for that violation whether or not the person that committed the violation has been proceeded against under sections 41 to 43. For greater certainty, an officer or director, or any agent or mandatary who is an individual, is liable only to the penalty provided in respect of an individual.
Defence of due diligence
47. A person is not liable for a violation if they establish that they exercised due diligence to prevent the commission of the violation.
Continuing violation
48. A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.
Limitation period or prescription
49. Any proceedings in respect of a violation may be instituted at any time within, but not later than, two years after the day on which the subject matter of the proceedings arose.
Violation or offence
50. (1) If it is possible to proceed with any act or omission as a violation and it is also possible to proceed with it as an offence, proceeding in one manner precludes proceeding in the other.
Violation not an offence
(2) For greater certainty, a violation is not an offence.
Non-application of section 126 of Criminal Code
(3) Section 126 of the Criminal Code does not apply in respect of any obligation or prohibition under this Act whose contravention is a violation under this Act.
Admissibility of documents
51. In any proceeding, in the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 41(1) or 43(2) or (5) or a certificate issued under subsection 53(1) is presumed to be authentic and is proof of its contents.
Recovery of Penalties and Other Amounts
Debts to Her Majesty
52. (1) A penalty imposed under this Act and an amount referred to in subsection 43(5) each constitute a debt due to Her Majesty in right of Canada and may be recovered in the Federal Court or any other court of competent jurisdiction.
Limitation period or prescription
(2) No proceedings to recover such a debt may be commenced later than five years after the day on which the debt became payable.
Proceeds payable to Receiver General
(3) Each such debt is payable to the Receiver General.
Certificate
53. (1) The Minister may issue a certificate certifying the unpaid amount of any debt referred to in subsection 52(1).
Registration in Federal Court
(2) Registration in the Federal Court or in any other court of competent jurisdiction of the certificate has the same effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs.
OFFENCES AND PUNISHMENT
Misleading statements and information
54. A person must not do any of the following things in performing any obligation under this Act or in any application, declaration or report made under it:
(a) knowingly make a false or misleading statement or knowingly provide false or misleading information; or
(b) knowingly omit to state a material fact or to provide material information.
Offence
55. Every person who wilfully contravenes subsection 6(1) or (2), any of sections 8 to 11, an order made under subsection 14(1) or any regulations made under paragraph 64(1)(a) commits an offence and is liable on prosecution by summary conviction
(a) in the case of an individual, to a fine not exceeding $100,000; or
(b) in any other case, to a fine not exceeding $500,000.
Offence
56. (1) Every person who contravenes subsection 13(6), section 26, 30 or 54 or a condition referred to in subsection 32(3) is guilty of an offence punishable on summary conviction and liable
(a) in the case of an individual, to a fine not exceeding $25,000 for a first offence, or $50,000 for a subsequent offence; or
(b) in any other case, to a fine not exceeding $100,000 for a first offence, or $250,000 for a subsequent offence.
Obstruction of designated person
(2) Every person who contravenes subsection 34(3) or 38(1) or (2) is guilty of an offence punishable on summary conviction and liable to a fine not exceeding $15,000.
Offence
57. Every person who contravenes any provision of this Act or a regulation made under this Act, except in the case of an offence referred to in sections 55 and 56, is guilty of an offence punishable on summary conviction and liable to a fine not exceeding $250,000.
Consent of Attorney General of Canada required
58. A prosecution is not to be commenced in respect of an offence referred to in section 55 or subsection 56(1) without the consent of the Attorney General of Canada.
Defence of due diligence
59. A person is not to be convicted of an offence under this Act, other than for a contravention of subsection 38(1) or section 54 or an offence referred to in section 55, if they establish that they exercised due diligence to prevent the commission of the offence.
Officers of corporations, etc.
60. If a person other than an individual commits an offence under this Act, every officer, director, agent or mandatary of the person who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and liable on conviction to the punishment provided for the offence whether or not the person that committed the offence has been prosecuted or convicted. For greater certainty, an officer or director, or any agent or mandatary who is an individual, is liable only to the punishment provided in respect of an individual.
Continuing offence
61. If an offence under this Act is committed or continued on more than one day, the person who committed the offence is liable to be convicted for a separate offence for each day on which the offence is committed or continued.
Limitation period or prescription
62. Proceedings in respect of an offence under this Act may be instituted at any time within, but not later than, two years after the day on which the subject matter of the proceedings arose.
Injunctions
63. (1) If a court of competent jurisdiction is satisfied that a contravention of subsection 10(1) or section 11 is being or is likely to be committed, the court may, on application by the Minister, grant an injunction, subject to any conditions that it considers appropriate, ordering any person to cease or refrain from operating the transmission apparatus referred to in subsection 10(1) or to refrain from acquiring, installing or operating the new software referred to in section 11.
Federal Court
(2) For the purposes of subsection (1), the Federal Court is a court of competent jurisdiction.
REGULATIONS
Regulations
64. (1) The Governor in Council may make regulations
(a) respecting the obligations to be performed under subsections 6(1) and (2), including specifying the circumstances in which those obligations do not apply or need not be performed;
(b) respecting the time, manner and form in which the information referred to in paragraph 6(1)(b) is to be provided to an authorized person;
(c) respecting the time, manner and form in which an intercepted communication is to be provided to an authorized person;
(d) requiring telecommunications service providers to specify the locations where intercepted communications will be provided, respecting the time, manner and form in which the locations are specified and respecting which locations may be so specified;
(e) requiring telecommunications service providers to create and keep records with respect to interceptions;
(f) respecting the operational requirements referred to in section 7, including matters of time, manner and form in relation to them and the circumstances in which they do not apply or need not be met;
(g) for the purposes of paragraph 7(a), specifying what is a communication;
(h) for the purposes of paragraph 7(d)
(i) providing for the minimum number and maximum number of simultaneous interceptions or the manner of determining them,
(ii) prescribing what is to be counted as a single interception,
(iii) respecting the time, manner and form in which a request to increase the number of those interceptions is to be made, the circumstances in which such a request may be made, the time within which the increase is to be made and the duration of the increase, and
(iv) respecting the maximum number of agencies for which a telecommunications service provider is to simultaneously enable interceptions;
(i) providing for the global limit referred to in section 12, or the manner of determining it, respecting the circumstances in which it does not apply or need not be met and prescribing what is to be counted as a single interception;
(j) for the purposes of subsection 14(3), prescribing expenses and prescribing matters that the Minister is to consider in deciding what amount is reasonable or what prescribed expenses are necessary;
(k) for the purposes of subsection 14(5), respecting the provision of notice and assistance;
(l) for the purposes of sections 16 and 17, respecting requests made under those sections and the provision of information under those sections, including
(i) respecting the form of that information, the manner of — and time for — providing it and the circumstances under which particular information is to be provided, and
(ii) prescribing any confidentiality or security measures with which the telecommunications service provider must comply;
(m) for the purposes of section 18, respecting the creation and retention of records and the dealing with information;
(n) for the purposes of section 25, respecting the assistance to be provided in the assessment and testing of telecommunications facilities;
(o) for the purposes of section 29, respecting requests for payment and the making of payments;
(p) for carrying out sections 39 to 53, including
(i) designating any provision of this Act or of any regulation, or any order or class of orders made under this Act or any requirement or condition of such a provision or order or class of orders — or class of such requirements or conditions — as a provision, order, requirement or condition whose contravention may be proceeded with as a violation,
(ii) prescribing the maximum administrative monetary penalty for a particular violation, which maximum may not exceed $50,000, in the case of an individual, and $250,000, in any other case,
(iii) respecting compliance agreements referred to in subsection 43(3),
(iv) respecting the service of notices referred to in those sections, including the manner of serving them, the proof of their service and the circumstances under which they are deemed to have been served, and
(v) respecting procedure on appeals, which procedure must provide for a reasonable opportunity for the appellant to present written evidence and make representations in writing;
(q) prescribing anything that is to be prescribed under this Act; and
(r) generally, for carrying out the purposes and provisions of this Act.
Regulations may be limited or vary
(2) Regulations made under subsection (1) may apply generally or to particular classes of telecommunications service providers and may vary by class of telecommunications serv-ice provider, by class of telecommunications service provided, by class of telecommunications facility, according to the population of the region in which a telecommunications facility of a given class is located or by the manner in which information is provided.
Incorporation by reference
(3) Regulations made under subsection (1) that incorporate documents by reference may incorporate them as amended from time to time.
COMPENSATION
Consolidated Revenue Fund
65. There is to be paid out of the Consolidated Revenue Fund the sums required to meet the monetary obligations of Her Majesty in right of Canada under subsections 14(3), 21(1) and 29(1).
Compensation
66. If compensation for the provision of information or specialized telecommunications support is to be paid under section 21 or 29, no such compensation is to be paid under any other Act of Parliament.
REVIEW OF ACT
Review
67. Five years after the day on which this section comes into force, a committee of the House of Commons, of the Senate or of both Houses of Parliament is to be designated or established for the purpose of reviewing this Act.
Transitional Provisions
Delayed application — section 10 of Act
3. (1) The application of section 10 of the Investigating and Preventing Criminal Electronic Communications Act, as enacted by section 2, with respect to transmission apparatus that a telecommunications service provider begins to operate in the 18-month period beginning on the day on which that section 10 comes into force is suspended for the duration of that period.
Delayed application — section 11 of Act
(2) The application of section 11 of the Investigating and Preventing Criminal Electronic Communications Act with respect to transmission apparatus for which a telecommunications service provider installs new software in the 18-month period beginning on the day on which that section comes into force is suspended for the duration of that period.
Presumption — operational requirements
4. (1) A telecommunications service provider that, together with any affiliated or associated telecommunications service provid-er, has fewer than 100,000 subscribers, without regard to the telecommunications service to which they subscribe, is considered — during the three years after the day on which section 10 or 11 of the Investigating and Preventing Criminal Electronic Communications Act, as enacted by section 2, comes into force, as the case may be — to meet any operational requirement in respect of transmission apparatus that the service provider is obligated to meet by virtue of that section 10 or 11, as the case may be, if the service provider provides a physical connection point for the transmission apparatus permitting an authorized person to effect an interception.
Regulations
(2) For the purposes of subsection (1), the Governor in Council may make regulations defining the expression “affiliated or associated telecommunications service provider” and respecting the provision of a physical connection point.
Mandatory reporting — existing service providers
5. Every telecommunications service provider that is providing telecommunications services on the day on which section 30 of the Investigating and Preventing Criminal Electronic Communications Act, as enacted by section 2, comes into force must, within six months after that day and in accordance with that section 30, submit a report to the Minister of Public Safety and Emergency Preparedness respecting the telecommunications facilities that it operates on that day.
PART 2
AMENDMENTS TO THE CRIMINAL CODE AND OTHER ACTS
R.S., c. C-46
Criminal Code
2005, c. 32, s. 9(1)
6. (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 pornog-raphy 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).
2004, c. 15, s. 108
7. (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),
8. Section 184.2 of the Act is amended by adding the following after subsection (4):
Related warrant or order
(5) A judge who gives an authorization under this section may, at the same time, issue a warrant or make an order under any of sections 487, 487.01, 487.014 to 487.018, 487.02, 492.1 and 492.2 if the judge is of the opinion that the requested warrant or order relates to the investigation in respect of which the application for the authorization is made.
1993, c. 40, s. 4
9. Section 184.4 of the Act is replaced by the following:
Interception in exceptional circumstances
184.4 A peace officer may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication if the peace officer has reasonable grounds to believe that
(a) the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained under any other provision of this Part;
(b) the interception is immediately necessary to prevent an offence that would cause serious harm to any person or to property; and
(c) either the originator of the private communication or the person intended by the originator to receive it is the person who would commit the offence that is likely to cause the harm or is the victim, or intended victim, of the harm.
10. Section 186 of the Act is amended by adding the following after subsection (7):
Related warrant or order
(8) A judge who gives an authorization under this section may, at the same time, issue a warrant or make an order under any of sections 487, 487.01, 487.014 to 487.018, 487.02, 492.1 and 492.2 if the judge is of the opinion that the requested warrant or order relates to the investigation in respect of which the application for the authorization is made.
11. Section 187 of the Act is amended by adding the following after subsection (7):
Documents to be kept secret — related warrant or order
(8) The rules provided for in this section apply to all documents relating to a request for a related warrant or order referred to in subsection 184.2(5), 186(8) or 188(6) with any necessary modifications.
12. Section 188 of the Act is amended by adding the following after subsection (5):
Related warrant or order
(6) A judge who gives an authorization under this section may, at the same time, issue a warrant or make an order under section 487, 487.02, 492.1 or 492.2 if the judge is of the opinion that the requested warrant or order relates to the investigation in respect of which the authorization is given.
2005, c. 10, subpar. 34(1)(f)(ix)
13. (1) Subsection 195(1) of the Act is replaced by the following:
Annual report
195. (1) The Minister of Public Safety and Emergency Preparedness shall, as soon as possible after the end of each year, prepare a report relating to
(a) authorizations for which that Minister and agents to be named in the report who were specially designated in writing by that Minister for the purposes of section 185 applied and to the interceptions made under those authorizations in the immediately preceding year;
(b) authorizations given under section 188 for which peace officers to be named in the report who were specially designated by that Minister for the purposes of that section applied and to the interceptions made under those authorizations in the immediately preceding year; and
(c) interceptions made under section 184.4 in the immediately preceding year if the interceptions relate to an offence for which proceedings may be commenced by the Attorney General of Canada.
(2) The portion of subsection 195(2) of the Act before paragraph (a) is replaced by the following:
Information respecting authorizations — sections 185 and 188
(2) The report shall, in relation to the authorizations and interceptions referred to in paragraphs (1)(a) and (b), set out
(3) Section 195 of the Act is amended by adding the following after subsection (2):
Information respecting interceptions — section 184.4
(2.1) The report shall, in relation to the interceptions referred to in paragraph (1)(c), set out
(a) the number of interceptions made;
(b) the number of parties to each intercepted private communication against whom proceedings were commenced in respect of the offence that the peace officer sought to prevent in intercepting the private communication or in respect of any other offence that was detected as a result of the interception;
(c) the number of persons who were not parties to an intercepted private communication but whose commission or alleged commission of an offence became known to a peace officer as a result of the interception of a private communication, and against whom proceedings were commenced in respect of the offence that the peace officer sought to prevent in intercepting the private communication or in respect of any other offence that was detected as a result of the interception;
(d) the number of notifications given under section 196.1;
(e) the offences in respect of which interceptions were made and any other offences for which proceedings were commenced as a result of an interception, as well as the number of interceptions made with respect to each offence;
(f) a general description of the methods of interception used for each interception;
(g) the number of persons arrested whose identity became known to a peace officer as a result of an interception;
(h) the number of criminal proceedings commenced in which private communications obtained by interception were adduced in evidence and the number of those proceedings that resulted in a conviction;
(i) the number of criminal investigations in which information obtained as a result of the interception of a private communication was used even though the private communication was not adduced in evidence in criminal proceedings commenced as a result of the investigations; and
(j) the duration of each interception and the aggregate duration of all the interceptions related to the investigation of the offence that the peace officer sought to prevent in intercepting the private communication.
(4) The portion of subsection 195(3) of the Act before paragraph (a) is replaced by the following:
Other information
(3) The report shall, in addition to the information referred to in subsections (2) and (2.1), set out
(5) Subsection 195(5) of the Act is replaced by the following:
Report by Attorneys General
(5) The Attorney General of each province shall, as soon as possible after the end of each year, prepare and publish or otherwise make available to the public a report relating to
(a) authorizations for which the Attorney General and agents specially designated in writing by the Attorney General for the purposes of section 185 applied and to the interceptions made under those authorizations in the immediately preceding year;
(b) authorizations given under section 188 for which peace officers specially designated by the Attorney General for the purposes of that section applied and to the interceptions made under those authorizations in the immediately preceding year; and
(c) interceptions made under section 184.4 in the immediately preceding year, if the interceptions relate to an offence not referred to in paragraph (1)(c).
The report must set out, with any modifications that the circumstances require, the information described in subsections (2) to (3).
14. The Act is amended by adding the following after section 196:
Written notice — interception in exceptional circumstances
196.1 (1) Subject to subsections (3) and (5), the Attorney General of the province in which a peace officer intercepts a private communication under section 184.4 or, if the interception relates to an offence for which proceedings may be commenced by the Attorney General of Canada, the Minister of Public Safety and Emergency Preparedness shall give notice in writing of the interception to any person who was the object of the interception within 90 days after the day on which it occurred.
Extension of period for notification
(2) The running of the 90-day period or of any extension granted under subsection (3) or (5) is suspended until any application made by the Attorney General of the province or the Minister to a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 for an extension or a subsequent extension of the period has been heard and disposed of.
Where extension to be granted
(3) The judge to whom an application under subsection (2) is made shall grant an extension or a subsequent extension of the 90-day period — each extension not to exceed three years — if the judge is of the opinion that the interests of justice warrant granting the application and is satisfied, on the basis of an affidavit submitted in support of the application, that one of the following investigations is continuing:
(a) the investigation of the offence to which the interception relates; or
(b) a subsequent investigation of an offence commenced as a result of information obtained from the investigation referred to in paragraph (a).
Application to be accompanied by affidavit
(4) An application shall be accompanied by an affidavit deposing to
(a) the facts known or believed by the deponent and relied on to justify the belief that an extension should be granted; and
(b) the number of instances, if any, on which an application has, to the knowledge or belief of the deponent, been made under subsection (2) in relation to the particular interception and on which the application was withdrawn or the application was not granted, the date on which each application was made and the judge to whom each application was made.
Exception — criminal organization or terrorism offence
(5) Despite subsection (3), the judge to whom an application under subsection (2) is made shall grant an extension or a subsequent extension of the 90-day period — each extension not to exceed three years — if the judge is of the opinion that the interests of justice warrant granting the application and is satisfied, on the basis of an affidavit submitted in support of the application, that the interception of the communication relates to an investigation of
(a) an offence under section 467.11, 467.12 or 467.13;
(b) an offence committed for the benefit of, at the direction of or in association with a criminal organization; or
(c) a terrorism offence.
2004, c. 14, s. 1
15. 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.
16. The definition “identifiable group” in subsection 319(7) of the Act is replaced by the following:
“identifiable group”
« groupe identifiable »
« groupe identifiable »
“identifiable group” means any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation or mental or physical disability;
2001, c. 41, s. 10
17. (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).
18. (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.
19. 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)
20. (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 »
« 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 »
« 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 »
« service d’ordinateur »
“computer service” includes data processing and the storage or retrieval of computer data;
“computer system”
« ordinateur »
« 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 »
« 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
21. (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).
22. 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)
23. (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;
(c) obstructs, interrupts or interferes with the lawful use of computer data; or
(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
24. 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 »
« données informatiques »
“computer data” has the same meaning as in subsection 342.1(2).
“data”
« données »
« 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 »
“document” means a medium on which data is registered or marked.
“judge”
« juge »
« juge »
“judge” means a judge of a superior court of criminal jurisdiction or a judge of the Court of Quebec.
“public officer”
« fonctionnaire public »
« 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 »
« données de localisation »
“tracking data” means data that relates to the location of a transaction, individual or thing.
“transmission data”
« données de transmission »
« 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
(c) does not reveal the substance, meaning or purpose of the communication.
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
(c) the computer data is in the person’s possession or control and will assist in the investigation of the offence.
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
(a) in the case of an offence that has been or will be committed under this or any other Act of Parliament, 21 days after the day on which it is made; and
(b) in the case of an offence committed under a law of a foreign state, 90 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 related to that purpose and that is, when they are served with the order, in their possession or control.
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;
(c) the status of the account; and
(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
(c) any previous addresses of that person.
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 and, for greater certainty, no endorsement is needed for the order to be effective in a territorial division that is not the one in which the order is made.
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 under any of sections 487.014 to 487.018 may specify that a document may be produced on or through an electro-magnetic medium.
Non-application
(4) For greater certainty, sections 489.1 and 490 do not apply to a document that is produced under an order under any of sections 487.014 to 487.018.
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) A document that is prepared for the purpose of production is considered to be original for the purposes of the Canada Evidence Act.
Application for review of production order
487.0193 (1) 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 within 30 days after the day on which the order is made and only if they give notice of their intention to do so to a peace officer or public officer named in the order within 15 days after that day.
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 preservation 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 preservation 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.
1995, c. 27, s. 1
25. 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
26. 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)
27. (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.
1993, c. 40, s. 18; 1999, c. 5, ss. 18 and 19
28. 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
(c) a terrorism offence.
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 »
« 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 »
« juge »
“judge” means a judge of a superior court of criminal jurisdiction or a judge of the Court of Quebec.
“public officer”
« fonctionnaire public »
« 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 »
« données de localisation »
“tracking data” means data that relates to the location of a transaction, individual or thing.
“tracking device”
« dispositif de localisation »
« 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
(c) a terrorism offence.
Definitions
(6) The following definitions apply in this section.
“data”
« données »
« 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 »
« juge »
“judge” means a judge of a superior court of criminal jurisdiction or a judge of the Court of Quebec.
“public officer”
« fonctionnaire public »
« 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.
“transmission data”
« données de transmission »
« 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
(c) does not reveal the substance, meaning or purpose of the communication.
“transmission data recorder”
« enregistreur de données de transmission »
« 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.
29. 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 ..........:
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 applicable, 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 ..........:
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 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.
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)
FORM 5.005
(Subsection 487.014(3))
PRODUCTION ORDER FOR DOCUMENTS
Canada,
Province of .........
(territorial division)
To (name of person), of ..........:
Whereas I am satisfied by information on oath of (name of peace officer or public officer), of .........., that there are reasonable grounds to believe that an offence has been or will be committed under (specify the provision of the Criminal Code or other Act of Parliament) and that (specify the document or data) is in your possession or control and will afford evidence respecting the commission of the offence;
Therefore, you are ordered to
produce a document that is a copy of (specify the document) that is in your possession or control when you receive this order
(and/or)
prepare and produce a document containing (specify the data) that is in your possession or control when you receive this order.
The document must be produced to (name of peace officer or public officer) within (time) at (place) in (form).
This order is subject to the following conditions:
You have the right to apply to revoke or vary this order.
If you contravene this order 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 5.006
(Subsection 487.015(3))
PRODUCTION ORDER TO TRACE A COMMUNICATION
Canada,
Province of ..........
(territorial division)
Whereas I am satisfied by information on oath of (name of peace officer or public officer), of ..........., 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), 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 one or more persons whose identity was unknown when the application was made have possession or control of (specify the transmission data) that will enable that identification;
Therefore, on being served with this order in accordance with subsection 487.015(4) of the Criminal Code, you are ordered to prepare and produce a document containing (specify the transmission data) that is in your possession or control when you are served with this order.
The document must be produced to (name of peace officer or public officer) as soon as feasible at (place) in (form).
This order is subject to the following conditions:
You have the right to apply to revoke or vary this order.
If you contravene this order without lawful excuse, you may be subject to a fine, to imprisonment or to both.
Dated (date), at (place).
..................................................
(Signature of justice or judge)
Served on (name of person) on (date), at (place).
..................................................
(Signature of peace officer or public officer)
..................................................
(Signature of person served)
FORM 5.007
(Subsections 487.016(3) and 487.017(3))
PRODUCTION ORDER FOR TRANSMISSION DATA OR TRACKING DATA
Canada,
Province of ..........
(territorial division)
To (name of person), of ..........:
Whereas I am satisfied by information on oath of (name of peace officer or public officer), of .........., 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) and that (if the order is made under section 487.016 of the Criminal Code, specify the transmission data) (or, if the order is made under section 487.017 of the Criminal Code, specify the tracking data) is in your possession or control and will assist in the investigation of the offence;
Therefore, you are ordered to prepare and produce a document containing the data specified that is in your possession or control when you receive this order.
The document must be produced to (name of peace officer or public officer) within (time) at (place) in (form).
This order is subject to the following conditions:
You have the right to apply to revoke or vary this order.
If you contravene this order 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 5.008
(Subsection 487.018(4))
PRODUCTION ORDER FOR FINANCIAL DATA
Canada,
Province of ..........
(territorial division)
To (name of financial institution, person or entity), of ..........:
Whereas I am satisfied by information on oath of (name of peace officer or public officer), of .........., 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) and that (specify the data) is in your possession or control and will assist in the investigation of the offence;
Therefore, you are ordered to prepare and produce a document setting out (specify the data) that is in your possession or control when you receive this order.
The document must be produced to (name of the peace officer or public officer) within (time) at (place) in (form).
This order is subject to the following conditions:
You have the right to apply to revoke or vary this order.
If you contravene this order 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 5.0081
(Subsection 487.019(3))
INFORMATION TO REVOKE OR VARY AN ORDER MADE UNDER ANY OF SECTIONS 487.013 TO 487.018 OF THE CRIMINAL CODE
Canada,
Province of ...........
(territorial division)
This is the information of (name of peace officer or public officer), of .......... (“the informant”).
The informant says that on or after (insert date) the informant became aware of the following facts that justify the revocation (or variation) of an order made on (insert date) under (specify the provision of the Criminal Code):
..........
The informant therefore requests that the order be revoked (or be varied as follows: ..........).
Sworn before me on (date), at (place).
..................................................
(Signature of informant)
..................................................
(Signature of justice or judge)
FORM 5.009
(Subsection 487.0191(2))
INFORMATION TO OBTAIN A NON-DISCLOSURE 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 believe that the disclosure of the existence (or any of the contents or any of the following portion or portions) of (identify the preservation demand made under section 487.012 of the Criminal Code, the preservation order made under section 487.013 of that Act or the production order made under any of sections 487.014 to 487.018 of that Act, as the case may be) during (identify the period) would jeopardize the conduct of the investigation of the offence to which it relates:
(specify portion or portions)
The reasonable grounds are:
The informant therefore requests an order prohibiting (name of the person, financial institution or entity) from disclosing the existence (or any of the contents or any of the specified portion or portions) of the demand (or the order) during a period of (identify the period) 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 5.0091
(Subsection 487.0191(3))
NON-DISCLOSURE ORDER
Canada,
Province of ...........
(territorial division)
To (name of person, financial institution or entity), of ..........:
Whereas I am satisfied by information on oath of (name of peace officer or public officer), of .........., that there are reasonable grounds to believe that the disclosure of the existence (or any of the contents or any of the portion or portions, specified in the information,) of (identify the preservation demand made under section 487.012 of the Criminal Code, the preservation order made under section 487.013 of that Act or the production order made under any of sections 487.014 to 487.018 of that Act, as the case may be) during (identify the period) would jeopardize the conduct of the investigation of the offence to which it relates;
Therefore, you are prohibited from disclosing the existence (or any of the contents or any of the following portion or portions) of the demand (or the order) during a period of (identify the period) after the day on which this order is made.
(specify portion or portions)
You have the right to apply to revoke or vary this order.
If you contravene this order without lawful excuse, you may be subject to a fine, to imprisonment or to both.
Dated (date), at (place).
..................................................
(Signature of justice or judge)
R.S., c. C-34; R.S., c. 19 (2nd Supp.), s. 19
Competition Act
R.S., c. 19 (2nd Supp.), s. 20(3)
30. (1) The definition “record” in subsection 2(1) of the Competition Act is replaced by the following:
“record”
« document »
« document »
“record” means a medium on which information is registered or marked;
(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
“computer system”
« ordinateur »
« ordinateur »
“computer system” has the same meaning as in subsection 342.1(2) of the Criminal Code;
“data”
« données »
« 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;
“information”
« renseignement »
« renseignement »
“information” includes data;
31. The Act is amended by adding the following after section 14:
Application of Criminal Code — preservation demand and orders for preservation or production of data
14.1 (1) Sections 487.012, 487.013, 487.015, 487.016 and 487.018 of the Criminal Code, which apply to the investigation of offences under any Act of Parliament, also apply, with any modifications that the circumstances require,
(a) to an investigation in relation to a contravention of an order made under section 32, 33 or 34 or Part VII.1 or VIII; or
(b) to an investigation in relation to whether grounds exist for the making of an order under Part VII.1 or VIII.
Clarification
(2) The provisions of the Criminal Code referred to in subsection (1) apply whether or not an inquiry has been commenced under section 10.
R.S., c. 19 (2nd Supp.), s. 24
32. Subsection 16(6) of the Act is repealed.
R.S., c. 19 (2nd Supp.), s. 24
33. Subsection 20(2) of the Act is replaced by the following:
Copies
(2) Copies of any records referred to in subsection (1), made by any process of reproduction, on proof orally or by affidavit that they are true copies, are admissible in evidence in any proceedings under this Act and have the same probative force as the original.
2002, c. 16, s. 3
34. The definition “data” in section 30 of the Act is repealed.
1999, c. 2, s. 12(1)
35. Paragraph 52(2)(d) of the Act is replaced by the following:
(d) made in the course of in-store or door-to-door selling to a person as ultimate user, or by communicating orally by any means of telecommunication to a person as ultimate user, or
1999, c. 2, s. 13
36. (1) Subsection 52.1(1) of the Act is replaced by the following:
Definition of “telemarketing”
52.1 (1) In this section, “telemarketing” means the practice of communicating orally by any means of telecommunication for the purpose of promoting, directly or indirectly, any business interest or the supply or use of a product.
1999, c. 2, s. 13
(2) Paragraph 52.1(2)(a) of the Act is replaced by the following:
(a) disclosure is made, in a fair and reasonable manner at the beginning of each communication, of the identity of the person on behalf of whom the communication is made, the nature of the business interest or product being promoted and the purposes of the communication;
1999, c. 2, s. 13
(3) Subsection 52.1(5) of the Act is replaced by the following:
Time of disclosure
(5) The disclosure of information referred to in paragraph (2)(b) or (c) or (3)(b) or (c) must be made during the course of a communication unless it is established by the accused that the information was disclosed within a reasonable time before the communication, by any means, and the information was not requested during the communication.
1999, c. 2, s. 22
37. Paragraph 74.03(1)(d) of the Act is replaced by the following:
(d) made in the course of in-store or door-to-door selling to a person as ultimate user, or by communicating orally by any means of telecommunication to a person as ultimate user, or
R.S., c. 30 (4th Supp.)
Mutual Legal Assistance In Criminal Matters Act
38. The definitions “data” and “record” in subsection 2(1) of the Mutual Legal Assistance in Criminal Matters Act are replaced by the following:
“data”
« données »
« 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;
“record”
« document »
« document »
“record” means a medium on which data is registered or marked;
39. Section 12 of the Act is amended by adding the following after subsection (1):
Commissioner of Competition
(1.1) The judge may, in addition to or instead of a peace officer, authorize the Commissioner of Competition appointed under subsection 7(1) of the Competition Act or his or her authorized representative named in the warrant to execute the search warrant, in which case the Commissioner or his or her representative, as the case may be, has, in relation to the warrant, all of the powers and duties that are set out for a peace officer in this section and sections 13 and 14.
2000, c. 24, s. 61
40. Section 13.1 of the Act is repealed.
41. The Act is amended by adding the following after section 16:
Other warrants
16.1 (1) A judge of the province to whom an application is made under subsection 11(2) may, in the manner provided for by the Criminal Code, issue a warrant, other than a warrant referred to in section 12, to use any device or investigative technique or do anything described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property.
Criminal Code applies
(2) Subject to subsection (3), a warrant issued under subsection (1) may be obtained, issued and executed in the manner provided for by the Criminal Code, with any necessary modifications.
Exception — certain warrants
(3) Subsections 12(3) and (4) and sections 14 to 16 apply in respect of a warrant issued under subsection (1) — other than a warrant issued in the manner provided for by section 492.1 or 492.2 of the Criminal Code — and prevail over any provisions of the Criminal Code that are inconsistent with them.
Sending abroad — certain warrants
16.2 (1) If a judge referred to in subsection 16.1(1) issues a warrant in the manner provided for under section 492.1 or 492.2 of the Criminal Code, the judge must also order
(a) that the peace officer who executes the warrant send a record containing the data obtained under the warrant directly to the state or entity that made the request under subsection 11(1); or
(b) that sections 20 and 21 apply to the warrant with any necessary modifications.
Report
(2) The peace officer who executes the warrant must
(a) make a report concerning the execution of the warrant to the judge who issued the warrant or to another judge of the same court, accompanied by a general description of the data obtained under the warrant and, if the judge requires it, a record containing the data; and
(b) send a copy of the report to the Minister without delay.
Timing of report and sending abroad
(3) If the judge makes an order under paragraph (1)(a), the peace officer must make the report to the judge and send a record containing the data to the state or entity that made the request no later than five days after the day on which all of the data is obtained under the warrant.
42. The heading before section 17 of the Act is replaced by the following:
Production Orders
43. The Act is amended by adding the following after section 22:
Application of Criminal Code
22.01 The Criminal Code applies, with any necessary modifications, in respect of an order made under subsection 22.03(1) in the manner provided for under any of sections 487.015 to 487.018 and 487.0191 of the Criminal Code, except to the extent that that Act is inconsistent with this Act.
Approval of request to obtain production
22.02 (1) If the Minister approves a request of a state or entity to obtain an order under this Act made in the manner provided for under any of sections 487.015 to 487.018 of the Criminal Code to require the production of a record containing data, the Minister must provide a competent authority with any documents or information necessary to apply for the order.
Application for orders
(2) The competent authority must apply ex parte for an order made in the manner provided for under any of sections 487.015 to 487.018 and 487.0191 of the Criminal Code to a justice as defined in section 2 of the Criminal Code, a judge of a superior court of criminal jurisdiction as defined in that section or a judge of the Court of Quebec.
Production and non-disclosure orders
22.03 (1) The justice or judge to whom the application is made may make an order in the manner provided for under any of sections 487.015 to 487.018 and 487.0191 of the Criminal Code if the conditions set out in that section have been met.
Condition in order
(2) An order made in the manner provided for under any of sections 487.015 to 487.018 of the Criminal Code must require that a record containing the data be given to a designated person.
Sending abroad
22.04 (1) If the justice or judge makes an order in the manner provided for under any of sections 487.015 to 487.018 of the Criminal Code, the justice or judge must also order
(a) that the person designated in the order send a record containing the data directly to the state or entity that made the request under subsection 22.02(1); or
(b) that sections 20 and 21 apply to the order with any necessary modifications.
Report
(2) The person designated in the order must
(a) make a report concerning the execution of the order to the justice or judge who made it — or to another justice for the same territorial division or another judge in the judicial district where the order was made — accompanied by a general description of the data contained in the record obtained under the order and, if the justice or judge requires it, a record containing the data; and
(b) send a copy of the report to the Minister without delay.
Timing of report and sending abroad
(3) If the justice or judge makes an order under paragraph (1)(a), the person designated in the order must make the report to the justice or judge and send a record containing the data to the state or entity that made the request no later than five days after the day on which such a record is obtained under the order.
Offence
22.05 Section 487.0198 of the Criminal Code applies to everyone who is subject to an order made under subsection 22.03(1) in the manner provided for under any of sections 487.015 to 487.018 of the Criminal Code.
Video Link
44. The Act is amended by adding the following after section 22.4:
Arrest Warrant
45. The Act is amended by adding the following after section 23:
Examination of Place or Site
1999, c. 18, s. 120
46. Subsection 36(2) of the Act is replaced by the following:
Probative value
(2) For the purpose of determining the probative value of a record or a copy of a record admitted in evidence under this Act, the trier of fact may examine the record or copy, receive evidence orally or by affidavit, or by a certificate or other statement pertaining to the record in which a person attests that the certificate or statement is made in conformity with the laws that apply to a state or entity, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the state or entity, including evidence as to the circumstances in which the data contained in the record or copy was written, stored or reproduced, and draw any reasonable inference from the form or content of the record or copy.
1999, c. 18, s. 127
47. (1) Subsection 44(1) of the French version of the Act is replaced by the following:
Documents protégés
44. (1) Sous réserve du paragraphe 38(2), les documents transmis au ministre par un État ou entité en conformité avec une demande canadienne sont protégés. Jusqu’à ce qu’ils aient été, en conformité avec les conditions attachées à leur transmission au ministre, rendus publics ou révélés au cours ou aux fins d’une déposition devant un tribunal, il est interdit de communiquer à quiconque ces documents, leur teneur ou des données qu’ils contiennent.
(2) Subsection 44(2) of the English version of the Act is replaced by the following:
Privilege
(2) No person in possession of a record mentioned in subsection (1) or of a copy of such a record, or who has knowledge of any data contained in the record, shall be required, in connection with any legal proceedings, to produce the record or copy or to give evidence relating to any data that is contained in it.
PART 3
COORDINATING AMENDMENTS AND COMING INTO FORCE
Coordinating Amendments
2010, c. 23
48. (1) In this section, “other Act” means An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act.
(2) If subsection 30(1) of this Act comes into force before subsection 70(1) of the other Act, then that subsection 70(1) is repealed.
(3) If subsection 70(1) of the other Act comes into force on the same day as subsection 30(1) of this Act, then that subsection 70(1) is deemed to have come into force before that subsection 30(1).
(4) If subsection 70(2) of the other Act comes into force before subsection 30(2) of this Act, then that subsection 30(2) is replaced by the following:
(2) The definition “data” in subsection 2(1) of the Act is replaced by the following:
“data”
« données »
« 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;
(5) If subsection 30(2) of this Act comes into force before subsection 70(2) of the other Act, then that subsection 70(2) is replaced by the following:
(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
“electronic message”
« message électronique »
« message électronique »
“electronic message” means a message sent by any means of telecommunication, including a text, sound, voice or image message;
“locator”
« localisateur »
« localisateur »
“locator” means a name or information used to identify a source of data on a computer system, and includes a URL;
“sender information”
« renseigne- ments sur l’expéditeur »
« renseigne- ments sur l’expéditeur »
“sender information” means the part of an electronic message — including the data relating to source, routing, addressing or signalling — that identifies or purports to identify the sender or the origin of the message;
“subject matter information”
« objet »
« objet »
“subject matter information” means the part of an electronic message that purports to summa-rize the contents of the message or to give an indication of them;
(6) If subsection 70(2) of the other Act comes into force on the same day as subsection 30(2) of this Act, then that subsection 70(2) is deemed to have come into force before that subsection 30(2) and subsection (4) applies as a consequence.
(7) If section 71 of the other Act comes into force before section 32 of this Act, then that section 32 is repealed.
(8) If section 32 of this Act comes into force before section 71 of the other Act, then that section 71 is repealed.
(9) If section 71 of the other Act comes into force on the same day as section 32 of this Act, then that section 71 is deemed to have come into force before that section 32 and subsection (7) applies as a consequence.
(10) If section 72 of the other Act comes into force before section 33 of this Act, then that section 33 is repealed.
(11) If section 33 of this Act comes into force before section 72 of the other Act, then that section 72 is repealed.
(12) If section 72 of the other Act comes into force on the same day as section 33 of this Act, then that section 72 is deemed to have come into force before that section 33 and subsection (10) applies as a consequence.
(13) If section 35 of this Act comes into force before subsection 74(2) of the other Act, then that subsection 74(2) is repealed.
(14) If subsection 74(2) of the other Act comes into force on the same day as section 35 of this Act, then that subsection 74(2) is deemed to have come into force before that section 35.
(15) If subsection 36(1) of this Act comes into force before subsection 76(1) of the other Act, then that subsection 76(1) is repealed.
(16) If subsection 76(1) of the other Act comes into force on the same day as subsection 36(1) of this Act, then that subsection 76(1) is deemed to have come into force before that subsection 36(1).
(17) If subsection 76(2) of the other Act comes into force before subsection 36(2) of this Act, then that subsection 36(2) is repealed.
(18) If subsection 36(2) of this Act comes into force before subsection 76(2) of the other Act, then that subsection 76(2) is repealed.
(19) If subsection 76(2) of the other Act comes into force on the same day as subsection 36(2) of this Act, then that subsection 76(2) is deemed to have come into force before that subsection 36(2) and subsection (17) applies as a consequence.
(20) If subsection 76(3) of the other Act comes into force before subsection 36(3) of this Act, then that subsection 36(3) is repealed.
(21) If subsection 36(3) of this Act comes into force before subsection 76(3) of the other Act, then that subsection 76(3) is repealed.
(22) If subsection 76(3) of the other Act comes into force on the same day as subsection 36(3) of this Act, then that subsection 76(3) is deemed to have come into force before that subsection 36(3) and subsection (20) applies as a consequence.
(23) If section 37 of this Act comes into force before section 78 of the other Act, then that section 78 is repealed.
(24) If section 78 of the other Act comes into force on the same day as section 37 of this Act, then that section 78 is deemed to have come into force before that section 37.
Bill C-12
49. If Bill C-12, introduced in the 1st session of the 41st Parliament and entitled the Safeguarding Canadians’ Personal Information Act, receives royal assent, then, on the first day on which both section 8 of that Act and section 23 of the Investigating and Preventing Criminal Electronic Communications Act, as enacted by section 2 of this Act, are in force, that section 23 is replaced by the following:
Deemed nature of information
23. Personal information, as defined in subsection 2(1) of the Personal Information Protection and Electronic Documents Act, that is provided under subsection 16(1) or 17(1) is deemed, for the purposes of section 7.5 and subsections 9(2.1) to (2.4) of that Act, to be disclosed under subparagraph 7(3)(c.1)(i) or (ii), and not under paragraph 7(3)(i), of that Act. This section operates despite the other provisions of Part 1 of that Act.
Coming into Force
Order in council
50. (1) Subject to subsection (2), the provisions of this Act, other than sections 3 to 5, 9, 13, 14, 48 and 49, come into force on a day or days to be fixed by order of the Governor in Council.
Order in council
(2) The provisions of the Investigating and Preventing Criminal Electronic Communications Act, as enacted by section 2, come into force on a day or days to be fixed by order of the Governor in Council.
Explanatory Notes
Criminal Code
Clause 6: (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 7: (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 8: New.
Clause 9: Existing text of section 184.4:
184.4 A peace officer may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication where
(a) the peace officer believes on reasonable grounds that the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained under any other provision of this Part;
(b) the peace officer believes on reasonable grounds that such an interception is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property; and
(c) either the originator of the private communication or the person intended by the originator to receive it is the person who would perform the act that is likely to cause the harm or is the victim, or intended victim, of the harm.
Clause 10: New.
Clause 11: New.
Clause 12: New.
Clause 13: (1) Existing text of subsection 195(1):
195. (1) The Minister of Public Safety and Emergency Preparedness shall, as soon as possible after the end of each year, prepare a report relating to
(a) authorizations for which he and agents to be named in the report who were specially designated in writing by him for the purposes of section 185 made application, and
(b) authorizations given under section 188 for which peace officers to be named in the report who were specially designated by him for the purposes of that section made application,
and interceptions made thereunder in the immediately preceding year.
(2) Relevant portion of subsection 195(2):
(2) The report referred to in subsection (1) shall, in relation to authorizations and interceptions made thereunder, set out
(3) New.
(4) Relevant portion of subsection 195(3):
(3) The report referred to in subsection (1) shall, in addition to the information referred to in subsection (2), set out
(5) Existing text of subsection 195(5):
(5) The Attorney General of each province shall, as soon as possible after the end of each year, prepare and publish or otherwise make available to the public a report relating to
(a) authorizations for which he and agents specially designated in writing by him for the purposes of section 185 made application, and
(b) authorizations given under section 188 for which peace officers specially designated by him for the purposes of that section made application,
and interceptions made thereunder in the immediately preceding year setting out, with such modifications as the circumstances require, the information described in subsections (2) and (3).
Clause 14: New.
Clause 15: 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 16: Existing text of the definition:
“identifiable group” has the same meaning as in section 318;
Clause 17: (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 18: (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 19: 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 20: (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 21: (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 22: 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 23: (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;
(c) obstructs, interrupts or interferes with the lawful use of data; or
(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 24: 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
(c) the person who is subject to the order has possession or control of the documents or data.
(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
(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.
(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
(c) the institution, person or entity that is subject to the order has possession or control of the information.
(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
(c) the document, data or information is not in the possession or control of the applicant.
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 25: Existing text of the heading:
Other Provisions respecting Search Warrants
Clause 26: 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 27: (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 28: 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 29: New.
Competition Act
Clause 30: (1) Existing text of the definition:
“record” includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine readable record, and any other documentary material, regardless of physical form or characteristics, and any copy or portion thereof;
(2) New.
Clause 31: New.
Clause 32: Existing text of subsection 16(6):
(6) In this section, “computer system” and “data” have the meanings set out in subsection 342.1(2) of the Criminal Code.
Clause 33: Existing text of subsection 20(2):
(2) Copies of any records referred to in subsection (1), including copies by any process of photographic reproduction, on proof orally or by affidavit that they are true copies, are admissible in evidence in any proceedings under this Act and have the same probative force as the original.
Clause 34: Existing text of the definition:
“data” means representations, in any form, of information or concepts.
Clause 35: Relevant portion of subsection 52(2):
(2) For the purposes of this section, a representation that is
...
(d) made in the course of in-store, door-to-door or telephone selling to a person as ultimate user, or
...
is deemed to be made to the public by and only by the person who causes the representation to be so expressed, made or contained, subject to subsection (2.1).
Clause 36: (1) Existing text of subsection 52.1(1):
52.1 (1) In this section, “telemarketing” means the practice of using interactive telephone communications for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest.
(2) Relevant portion of subsection 52.1(2):
(2) No person shall engage in telemarketing unless
(a) disclosure is made, in a fair and reasonable manner at the beginning of each telephone communication, of the identity of the person on behalf of whom the communication is made, the nature of the product or business interest being promoted and the purposes of the communication;
(3) Existing text of subsection 52.1(5):
(5) The disclosure of information referred to in paragraph (2)(b) or (c) or (3)(b) or (c) must be made during the course of a telephone communication unless it is established by the accused that the information was disclosed within a reasonable time before the communication, by any means, and the information was not requested during the telephone communication.
Clause 37: Relevant portion of subsection 74.03(1):
74.03 (1) For the purposes of sections 74.01 and 74.02, a representation that is
...
(d) made in the course of in-store, door-to-door or telephone selling to a person as ultimate user, or
...
is deemed to be made to the public by and only by the person who causes the representation to be so expressed, made or contained, subject to subsection (2).
Mutual Legal Assistance in Criminal Matters Act
Clause 38: Existing text of the definitions:
“data” means representations, in any form, of information or concepts;
“record” means any material on which data are recorded or marked and which is capable of being read or understood by a person or a computer system or other device;
Clause 39: New.
Clause 40: Existing text of section 13.1:
13.1 (1) A judge of the province to whom an application is made under subsection 11(2) may, in a manner provided for by the Criminal Code, issue a warrant, other than a warrant referred to in section 12, to use any device or other investigative technique or do anything described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property.
(2) A warrant issued under subsection (1) may be obtained, issued and executed in the manner prescribed by the Criminal Code, with any modifications that the circumstances may require.
(3) Despite subsection (2), subsections 12(3) and (4) and sections 14 to 16 apply in respect of a warrant issued under subsection (1), and any sections of the Criminal Code inconsistent with those provisions do not apply.
Clause 41: New.
Clause 42: Existing text of the heading:
Evidence for Use Abroad
Clause 43: New.
Clause 44: New.
Clause 45: New.
Clause 46: Existing text of subsection 36(2):
(2) For the purpose of determining the probative value of a record or a copy of a record admitted in evidence under this Act, the trier of fact may examine the record or copy, receive evidence orally or by affidavit, or by a certificate or other statement pertaining to the record in which a person attests that the certificate or statement is made in conformity with the laws that apply to a state or entity, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the state or entity, including evidence as to the circumstances in which the information contained in the record or copy was written, stored or reproduced, and draw any reasonable inference from the form or content of the record or copy.
Clause 47: (1) and (2) Existing text of section 44:
44. (1) Subject to subsection 38(2), a record sent to the Minister by a state or entity in accordance with a Canadian request is privileged and no person shall disclose to anyone the record or its purport or the contents of the record or any part of it before the record, in compliance with the conditions on which it was so sent, is made public or disclosed in the course or for the purpose of giving evidence.
(2) No person in possession of a record mentioned in subsection (1) or of a copy thereof, or who has knowledge of any information contained in the record, shall be required, in connection with any legal proceedings, to produce the record or copy or to give evidence relating to any information that is contained therein.
SCHEDULE
(Section 2)
SCHEDULE 1
(Subsections 5(1) and (4) and 14(2))
EXCLUSIONS FROM THE APPLICATION OF THE ACT
PART 1
1. A telecommunications service intended principally for the use of its provider and the provider’s household or employees and not by the public.
2. A telecommunications service intended principally for the sale or purchase of goods or services other than telecommunications services to the public.
3. A telecommunications service provided by a financial institution, as defined in section 2 of the Bank Act, that enables the business of banking, the trust, loan or insurance business, the business of a cooperative credit society or the business of dealing in securities or other business primarily related to the business of providing financial services.
PART 2
1. Telecommunications service providers whose principal function is operating a registered charity within the meaning of the Income Tax Act, other than any service provider in a class listed in Schedule 2, or operating an educational institution other than a post-secondary institution, or operating a hospital, a place of worship, a retirement home or a telecommunications research network, only in respect of telecommunications services that they provide ancillary to their principal function.
2. Telecommunications service providers that are also broadcasting undertakings, as defined in subsection 2(1) of the Broadcasting Act, only in respect of broadcasting.
SCHEDULE 2
(Subsections 5(2) to (4) and 14(2) and Schedule 1)
PARTIAL APPLICATION OF THE ACT
PART 1
1. Telecommunications service providers that transmit communications on behalf of other telecommunications service providers, that do not modify particular communications transmitted and that do not authenticate the end users of the telecommunications services of those other service providers, only in respect of the telecommunications services provided to the other service providers.
PART 2
1. Telecommunications service providers whose principal business or function is operating a post-secondary educational institution, a library, a community centre, a restaurant or an establishment that provides lodgings or residential accommodations, such as a hotel, an apartment building or a condominium, only in respect of telecommunications services that they provide ancillary to their principal business or function.
Published under authority of the Speaker of the House of Commons
Available from:
Publishing and Depository Services
Public Works and Government Services Canada
Available from:
Publishing and Depository Services
Public Works and Government Services Canada
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