An Overview of Bill C-13: “Protecting Canadians from Online Crime Act”

On November 20, 2013, Bill C-13 was introduced for First Reading.

Although it is entitled “Protecting Canadians from Online Crime Act”, the bill stretches much further than the title suggests.   To give an idea of what it captures, the less news-marketable sub-title reads: “An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act

Parliamentary summary of the Online Crime Act

The summary from the Parliamentary papers is as follows:

  • (a) a new offence of non-consensual distribution of intimate images as well as complementary amendments to authorize the removal of such images from the Internet and the recovery of expenses incurred to obtain the removal of such images, the forfeiture of property used in the commission of the offence, a recognizance order to be issued to prevent the distribution of such images and the restriction of the use of a computer or the Internet by a convicted offender;
  • (b) the power to make preservation demands and orders to compel the preservation of electronic evidence;
  • (c) new production orders to compel the production of data relating to the transmission of communications and the location of transactions, individuals or things;
  • (d) a warrant that will extend the current investigative power for data associated with telephones to transmission data relating to all means of telecommunications;
  • (e) warrants that will enable the tracking of transactions, individuals and things and that are subject to legal thresholds appropriate to the interests at stake; and
  • (f) a streamlined process of obtaining warrants and orders related to an authorization to intercept private communications by ensuring that those warrants and orders can be issued by a judge who issues the authorization and by specifying that all documents relating to a request for a related warrant or order are automatically subject to the same rules respecting confidentiality as the request for authorization.
  • The enactment amends the Canada Evidence Act to ensure that the spouse is a competent and compellable witness for the prosecution with respect to the new offence of non-consensual distribution of intimate images.
  • It 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.

The Publishing of Intimate Issues without Consent

Among many other things, the new bill sets out a new amended proposal adding section 162.1 of the Criminal Code that would make it an offence to “knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty” of a summary offence, or an indictable offence punishable up to 5 years in jail.

The offender may also be subject to a prohibition of internet use as the Court considers appropriate (with the possibility of a lifetime prohibition by this reading).  The provisions also allow for the forfeiture of the image and recovery of any expenses required to remove it from publication (e.g., the internet)

“Intimate image” is defined specifically under the but essentially covers what one’s common sense would think it does whether it by video, photo, or visual recording.  The operative issue in these sorts of cases would likely be whether, at the time of recording it, there was a “reasonable expectation of privacy” in the image at the time it was distributed, published, made available, or sold.

If the offence is committed in furtherance of a “public good” than it would be a complete defence.  I presume this has to do with valid media distribution or other law enforcement distribution but still remains very ambiguous.

Amendments would also cover:

  • The mechanisms (i.e., warrants) for the seizure of any recordings/images and orders to ensure that the material is deleted;
  • Making spouses competent and compellable witnesses for the prosecution (Canada Evidence Act amendment);

Theft of Telecommunication Services, Widening of the Groups Subject to Hate Crime, and other amendments:

As mentioned, this bill stretches far beyond the political appeal and selling point exemplified by its title.  Some other changes would include:

  • Hate crimes would also extend those in “identifiable group(s)” as colour, race, religion, national or ethnic origin, age, sex, sexual orientation, or mental or physical disability. (changes underlined).  Such changes of “identifiable group” would also extend to  Advocating or Promoting Genocide under section 318(1) of the Criminal Code.
  • A broadening of what is included in the theft of telecommunication/internet services.  Not only receipt of telecommunication services without payment include possession, manufacturing, selling and offering for sale, and distributing such a device, but it was include making, importing, obtaining for use, and making the device available.  It would also be converted to a hybrid offence to make the prosecution of the charge much more expeditious and cost-effective – which will probably mean prosecuted more frequently.
  • The addition of computer hacking provisions under section 342.1 which would include intercepting data, using passwords to access information and services.
  • Sending false messages under the authority of it being from another person or entity (seemingly to capture attempts at the practice of “phishing”)
  • Conveying information they know to be false with an intuition to  injure or alarm a person by letter or any means of telecommunication.  It would also be an offence to send information that is “indecent”, or to repeatedly contact them with and intent to harass by way of telecommunications.
  • Destruction, obstruction, or interference of computer data to a person that is entitled to access it.
  • It would also be mischief under section 430(5.1) for a person who wilfully omits to do an act that it is their duty to do and that omission is likely to constitute mischief causing actual danger to life, or to constitute mischief…
  • It would be illegal send a telegram under a false name.

Essentially, the bill sets out wide measures of anti-hacking measures.

Additional Police Powers for Tracking, Retention, Production, and Seizure of Persons, Data, and Items.

Beyond the addition of new offences and definitions that would include activity into pre-existing crimes, Bill C-13 also sets out a number of new police powers in obtaining warrants and other judicial authorization for seizure, retention, production, and tacking of data, individuals, and items.  They include:

  • The ability to make a “demand” under 487.012 to preserve computer data that is in their possession or control on reasonable grounds to suspect that an offence has been committed.  (Note there is no judicial authorization for such a demand and failure to do so upon the party requested would be an offence in itself.  Nor is there any apparent need to establish exigency that the data may be soon destroyed.) The demand cannot be made to the person under investigation.  The person making the demand may revoke the request for preservation at any time.  Otherwise, the demand expires after 21 days (or 90 days if committed under a law of a foreign state).  This demand can only be made once.
  • The ability to make an ex parte (in the absence of the person under investigation) to a Justice to make a similar preservation order to what is expressed above.  This has an expiry of 90 days.  The peace officer applying must be intending to eventually seek a warrant for the material.
  • Provisions to require various means of identifying the subject of an investigation in relation to computer data, transmission, and authorship.   The Justice may also permit “tracking data” which would track the target user and/or data that is under investigation so that (internet) use is tracked.  Other provisions allow for the identification of the users of certain i.p. addresses (subscriber information, etc.)
  • Failure to comply with any of these preservation orders is a criminal offence.
  • Beyond data tracking.  Bill C-13 also addresses tracking individuals or items through tracking devices (i.e., GPS tracking devices)  This also includes the covert installation and removal of such devices.
  • Additional grounds for the issuance of a section 810 (commonly referred to as a “peace bond”) if a person believes that they might commit an offence under section 162.1 (relating to the distribution of intimate images).  This seems to provide a pre-emptive measure to anyone who feels that someone might distribute an intimate image of them and put a Court order in place before they do so.
As one can see from what is summarized above, Bill C-13 is much wider reaching that media sound bites circulating at present.  This bill addresses encompasses all aspects of computer use of the average Canadian and opens up a number of very powerful police powers that were otherwise absent.  Undoubtedly the government will pass the final version of this legislation with the majority they presently possess.  It will be interesting to see whether any meaningful debate takes place on this far-reaching legal measures that affect the lives of Canadians on a day to day basis.

– Sean Robichaud