Katherine Simonds
International Affairs, Trade and Finance Division

Parliamentary Information and Research Service
Library of Parliament

1 Background

1.1 Purpose of the Bill

Bill C-51: An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act (short title: Investigative Powers for the 21^st Century Act) was introduced in the House of Commons on 1 November 2010 by the Minister of Justice, the Honourable Robert Douglas Nicholson, together with Dave MacKenzie, Parliamentary Secretary to the Minister of Public Safety and Daniel Petit, Parliamentary Secretary to the Minister of Justice.

The purpose of the bill is to modernize certain offences in the Criminal Code (the Code) and the Competition Act to take into account new communications technol­ogies and to equip law enforcement agencies with new investigative tools that are adapted to computer crimes. To facilitate collaboration with foreign law enforcement agencies, the bill also amends the Mutual Legal Assistance in Criminal Matters Act. According to the Department of Justice, the new investigative powers within the proposed legislation give law enforcement agencies the ability to address organized crime and terrorism activities online by:

• enabling police to identify all the network nodes and jurisdictions involved in the transmission of data and trace the communications back to a suspect. Judicial authorizations would be required to obtain transmission data, which provides information on the routing but does not include the content of a private communication;
• requiring a telecommunications service provider to temporarily keep data so that it is not lost or deleted in the time it takes law enforcement agencies to return with a search warrant or production order to obtain it;
• making it illegal to possess a computer virus for the purposes of committing an offence of mischief; and
• enhancing international cooperation to help in investigating and prosecuting crime that goes beyond Canada’s borders.1

Bill C-51 is identical to Bill C-46, introduced in the House of Commons during the 2nd Session of the 40^th Parliament on 18 June 2009, with the exception that it does not contain provisions related to offences against children. Such provisions are proposed in this parliamentary session in Bill C-54, An Act to amend the Criminal Code (sexual offences against children).2 The proposed legislation complements Bill C-52, An Act regulating telecommunications facilities to support investigations, and Bill C-50, An Act to amend the Criminal Code (interception of private communications and related warrants and orders), as these bills address different aspects of a proposed lawful access regime.3

1.2 Principal Amendments in the Bill

The bill aims to update Canadian criminal law. More specifically, the principal amendments in the bill:

• provide that hate propaganda offences can be committed by any means of communication and including making hate material available (clause 5);
• create the offence of possession of a computer virus for the purpose of committing mischief (clause 10);
• make it possible for law enforcement agencies to make a demand or obtain a court order for the preservation of electronic evidence (clause 13);
• creating new judicial production orders for obtaining data relating to the transmission of communications or data for tracking a thing or individual (clause 13);
• create warrants for obtaining transmission data in real time and for the remote activation of tracking devices in certain types of technologies (clause 17);
• modernize the deceptive marketing practices offences in the Competition Act (clauses 24 to 26); and
• amend the Mutual Legal Assistance in Criminal Matters Act so the new production orders can be used by Canadian authorities who receive assistance requests from other countries (clause 32).

Some provisions of the bill came out of public consultations on lawful access held by representatives of Justice Canada, Industry Canada and the Solicitor General of Canada in 2002;4 these include, specifically, the provisions relating to preservation and production.

1.3 Convention on Cybercrime

Canada signed the Council of Europe’s Convention on Cybercrime in November 2001, and the Additional Protocol on hate propaganda in July 2005. The Convention criminalizes certain offences committed using computer systems, and it provides for legal tools that are adapted to new technologies, such as preservation and production orders.5

The Convention also provides for an order to produce data concerning subscribers6 that is similar in some ways to a request to provide subscriber information as set out in Bill C-52,7 which was introduced at the same time as Bill C-51. Together, bills C-51 and C-52 will mean that Canada is able to ratify the Convention on Cybercrime and the Additional Protocol to the Convention.

2 Description and Analysis

2.1 Amendments to the Criminal Code

2.1.1 Modernization of Offences

2.1.1.1 Hate Propaganda (Clauses 4 and 5)

Hate propaganda offences must be committed against an “identifiable group.” Clause 4 of the bill adds “national origin” to the definition of “identifiable group.”8

Clause 5 of the bill provides that the offences of public incitement of hatred and wilful promotion of hatred may be committed by any means of communication and include making hate material available, by creating a hyperlink that directs web surfers to a website where hate material is posted, for example.

2.1.1.2 Device for Theft of Telecommunication Services (Clause 8)

At present, section 327 of the Code makes it a crime to possess, manufacture or sell a device used for the theft of telecommunication services. Clause 8 of the bill essentially adds importing such a device or making it available. As well, the bill makes this indictable offence a hybrid offence; that is, the prosecutor will have the option of proceeding by indictment or summary conviction.

2.1.1.3 Computer Virus (Clause 10)

Under the existing provisions of the Code, only spreading or attempting to spread a computer virus9 constitutes an offence.10 In accordance with the requirements of the Convention on Cybercrime,11 Clause 10 of the bill makes it illegal to possess a computer virus for the purpose of committing mischief, and also makes it an offence to import and make available a computer virus. 

2.1.1.4 False, Indecent or Harassing Communications (Clause 11)

The existing provisions of the Code regarding the offences of sending a message in a false name and sending false information, indecent remarks or “harassing” messages (the French term “harassants” currently used in subsection 372(3) of the Code is replaced by “harcelants” in the bill) refer to certain communication technol­ogies used to commit those offences, such as telegram, radio and telephone.12 Clause 11 of the bill amends those offences by removing the references to those specific communication technologies and, for some of those offences, substituting a reference to any means of telecommunication. As a result, it will be possible to lay charges in respect of those offences regardless of the transmission method or technology used.

Additionally, the bill provides that the offences consisting of transmitting false information, indecent remarks or harassing messages will now be hybrid offences. Accordingly, the maximum sentence for the offences relating to indecent and harassing communications will be increased to imprisonment for two years, in the event that the prosecutor decides to proceed by indictment.

2.1.2 New Investigative Tools

2.1.2.1 Preservation Demand and Order (Clause 13)

Information in electronic form may be easily and quickly destroyed or altered. Clause 13 of the bill therefore adds a new investigative tool to the Code to preserve this type of evidence, which may take one of two forms: a preservation demand or a preservation order. A preservation demand is made by a peace officer (new s. 487.012 of the Code), while a preservation order is made by a judge, on application by a peace officer (new s. 487.013 of the Code).

A preservation demand or order directs a person, such as a telecommunications service provider (TSP), to preserve “computer data”13 that is “in their possession or control”14 when they receive the demand or order. However, a TSP may still voluntarily preserve data and provide it to a law enforcement agency, even where there is no demand or order (new s. 487.0195 of the Code).

This new investigative tool is different from the data retention measure in effect in some countries,15 which compels TSPs to collect and retain data for a prescribed period for all their subscribers, whether or not they are the subjects of an investi­gation. On the other hand, a preservation demand or order relates only to a particular telecommunication or person, in the context of a police investigation. A preservation demand or order may be given to a TSP only where there are “reasonable grounds to suspect”16 that an offence has been or will be committed17 (new subsections 487.012(2) and 487.013(2) of the Code). However, the person who is suspected of the offence may not be compelled to retain data under a preservation demand or order (new subsections 487.012(3) and 487.013(5) of the Code).18

Preservation demands and orders are temporary measures: they are generally in effect long enough to allow the law enforcement agency to obtain a search warrant or production order. The maximum length of a preservation demand is 21 days, and the demand may be made only once (new subsections 487.012(4) and (6) of the Code); the maximum length of a preservation order is 90 days (new subsection 487.013(6) of the Code).

A person to whom a preservation demand or order is made is required, after the demand or order expires, or after the data have been given to the law enforcement agency under a production order or search warrant, to destroy the computer data that would not be retained in the ordinary course of business (new ss. 487.0194 and 487.0199 of the Code).

Contravention of a preservation demand or order is an offence punishable, respectively, by a fine of not more than $5,000 (new s. 487.0197 of the Code) or a fine of not more than $250,000 and imprisonment for a term of not more than six months or both (new s. 487.0198 of the Code).

2.1.2.2 Production Orders (Clause 13)

A production order is made by a judge and is similar to a search warrant, the difference being that the person in possession of the information must produce it on request, rather than the law enforcement agency’s going to the site to obtain the information by searching and seizing it. A law enforcement agency with a production order will be able to more readily obtain documents that are in another country, for example.

The Code already provides a procedure for obtaining a general production order, that is, an order that applies regardless of the type of information a law enforcement agency is seeking.19 Issuance of the order is based on the existence of reasonable grounds to believe that an offence has been committed. The Code also provides for specific production orders, that is, orders for obtaining certain precise information, such as banking information or telephone call logs.20 Issuance of specific production orders is based on the reasonable grounds to suspect that an offence has been or will be committed.

Clause 13 of the bill creates new specific production orders, issuance of which is based on the existence of reasonable grounds to suspect that an offence has been or will be committed, which allow a peace officer to obtain two types of information from a TSP:21 “transmission data” (new s. 487.016 of the Code) and “tracking data” (new s. 487.017 of the Code).22

Essentially, “transmission data” are data that indicate the origin, destination, date, time, duration, type and volume of a telecommunication (e.g., a telephone call or Internet communication), but does not include the content of the telecommuni­cation.23 This type of data is useful: for example, it may be used to identify all TSPs involved in the transmission of data and identify the initial TSP and thus determine the origin of a telecommunication (new s. 487.015 of the Code). “Tracking data” relate to the location of a thing or individual.

These new production orders allow law enforcement agencies to obtain historical transmission or tracking data, that is, data already in the possession of the TSP when it receives the order. To obtain these types of data in real time, law enforcement agencies need a warrant.

A review procedure is provided for challenging any type of production order, existing or new (new s. 487.0193 of the Code).24 A person who has received an order may apply to a judge to revoke or vary it if production is unreasonable25 or discloses privileged information.26 As for a preservation order, violation of a production order is punishable by a fine of not more than $250,000 and imprisonment for a term of not more than six months, or both (new s. 487.0198 of the Code).

2.1.2.3 Warrant for a Tracking Device (Clause 17)

At present, section 492.1 of the Code allows a peace officer with a warran27 to secretly install a “tracking device”28 (e.g., a GPS device) on a thing, if there are reasonable grounds to suspect that an offence has been or will be committed and that information that would assist in the police investigation, notably the whereabouts of a person, can be obtained through the use of such a tracking device.

Clause 17 of the bill retains this type of warrant, but makes a distinction between a warrant to install a tracking device on a thing, for example a vehicle, to track its movements (new subs. 492.1(1) of the Code) and a warrant to install that kind of device on a thing usually carried or worn by an individual to track the individual’s location and movements (new subsection 492.1(2) of the Code). A warrant to track the movements of a thing is based on the existing standard, reasonable grounds to suspect that an offence has been or will be committed, while a more stringent standard applies to a warrant to track the movements of an individual: the existence of reasonable grounds to believe that an offence has been or will be committed.

In addition to allowing a tracking device to be installed, the bill allows law enforce­ment agencies to remotely activate devices of that kind that are found in certain types of technology, such as cellular telephones or the GPS devices in certain cars (new subsection 492.1(3) of the Code).

The maximum duration of a warrant for a tracking device is still 60 days. However, that period is extended to one year in the case of a terrorism offence or organized crime offence (new subssection 492.1(5) and (6) of the Code).29

2.1.2.4 Warrant for a Transmission Data Recorder (Clause 17)

At present, subsection 492.2(1) of the Code allows a peace officer with a warrant30 to secretly install a number recorder on a telephone or telephone line, if there are reasonable grounds to suspect that an offence has been or will be committed and information that would assist in the police investigation could be obtained through the use of this kind of recorder. The law enforcement agency could thus obtain the “incoming” and “outgoing” telephone numbers for a telephone that was being tapped.

Clause 17 of the bill provides for a warrant that authorizes a peace officer to install and activate a transmission data recorder31 (new s. 492.2 of the Code). As before, the warrant will allow law enforcement agencies to obtain telephonic data, but also to obtain data indicating the origin and destination of an Internet communication, for example. Police services will thus be able to have access to these transmission data in real time. As well, as in the case of a warrant to install a telephone number recorder, the new warrant is based on the requirement that there are reasonable grounds to suspect that an offence has been or will be committed.

2.2 Amendments to the Competition Act

2.2.1 Preservation and Production Orders (Clause 20)

The new provisions of the Code concerning demands and orders for the preservation of computer data and orders for the production of transmission data and banking information will apply to certain investigations under the Competition Act. The Commissioner of Competition will thus be able to use these new investigative tools to obtain evidence relating to deceptive marketing practices and restrictive trade practices.

2.2.2 Modernization of Offences (Clauses 24 to 26)

Clauses 24 to 26 of the bill modernize certain deceptive marketing practices offences, such as deceptive telemarketing and making misrepresentations about a product or service, and replace the reference to “telephone” as the means of committing these offences with “any means of telecommunication” used for communicating orally.

2.3 Amendments to the Mutual Legal Assistance in Criminal Matters Act

The Mutual Legal Assistance in Criminal Matters Act was enacted in 1988 and gives Canadian courts the power to issue compulsory measures, such as subpoenas and search warrants, to obtain evidence in Canada on behalf of a foreign state for use in a criminal investigation and prosecution being conducted by that state. The legis­lation aims to promote cooperation among states by establishing a system for exchanging information and evidence.32

2.3.1 Searches by the Commissioner of Competition (Clause 28)

The bill authorizes the Commissioner of Competition to execute search warrants issued under the Mutual Legal Assistance in Criminal Matters Act.

2.3.2 Production Orders (Clause 32)

The bill provides that the production orders for obtaining banking information, transmission data or tracking data described in the Criminal Code may be used by Canadian authorities who receive assistance requests from their international partners.

Notes