Bill C‐13 amends the Criminal Code, the Canada Evidence Act, the Competition Act, and the Mutual Legal Assistance in Criminal Matters Act. For obvious reasons, this post will concentrate on priority matters relevant to officers in the field.
A new offence under s. 162.1 of the Code was created for the nonconsensual distribution of “intimate images”. It makes it illegal to knowingly publish, distribute, transmit, sell, advertise or make available an “intimate image” of a person, knowing that the person does not consent or being reckless as to consent. “Intimate images” are, broadly stated, images in which the person is nude or engaged in explicit sexual activity and in which the person depicted has a reasonable expectation of privacy. The new section 162.1 is a designated offence pursuant to section 183 of the Criminal Code, so authorizations to intercept private communications are available.
Under 162.2, when an offender is found guilty of a section 162.1 offence, the court may now prohibit or restrict the offender from using the Internet or other digital networks. A failure to comply with such an order is an offence. Section 164 currently allows for a warrant to issue to search for and seize obscene publications, crime comics, child pornography and voyeuristic recordings. It also creates a process for post‐seizure forfeiture. Bill C‐13 expands and alters section 164 so it also allows for the search for, seizure and forfeiture of “intimate images.” Bill C‐13 also expands and alters section 164.1 so it also applies to “intimate images”. It also updates the provision to incorporate the new definition of “computer data” which Bill C‐13 adds to section 342.1 of the Code. Bill C‐13 expands section 810 so it also allows a court to impose a recognizance where there are reasonable grounds to believe a person will commit an offence under section 162.1.
Section 4(2) of the Canada Evidence Act makes a spouse a competent and compellable witness in prosecutions for several enumerated offences. Bill C‐13 expands section 4(2) so that a spouse is also a competent and compellable witness for the prosecution with respect to the new “intimate image” offence under section 162.1.
The largest impact on front-line officers is probably the amendment that Bill C‐13 repeals the existing production order, tracking warrant, and dial‐number recorder warrants and replaces them with new orders and warrants. These new orders and warrants will often be necessary and ancillary to an authorization to intercept private communications. Some legal professionals have already foreseen a gap in the new warrants and orders that may affect such authorizations. If you recall a post that I made some time ago concerning the case R. v. Spencer, 2014 SCC 43, the Supreme Court of Canada decided that judicial authorization is required for the production of customer name and address (CNA) information associated with certain communications. However, the new transmission data recorder warrants (which replace existing dial‐number recorder warrants) do not allow for the production of CNA information. The prospective/“real time” production of CNA information is a necessary component of a Part VI authorization, so consideration must be given to alternative means of authorizing the production of this information. Options include: a general production order; an assistance order (ancillary to the authorization itself or to a transmission data recorder warrant in new section 492.2); a general warrant; or terms or conditions of the authorization itself.
Section 326 creates the offence of theft of electricity, gas or telecommunications facilities or services. Bill C‐13 repeals the definition of “telecommunication” in section 326(2), relying instead on the definition of “telecommunication” in the Interpretation Act.
Section 371 creates the offence of sending a message in a false name. Section 372 creates the offence of sending false information, indecent remarks or harassing messages. Bill C‐13 updates these provisions. In particular, it removes the references to specific communications technologies, making it possible to lay charges for offences related to cyberbullying regardless of the transmission method or technology used. Bill C‐13 also makes section 372 a hybrid/Crown‐election offence (it is currently punishable on summary conviction).
Bill C‐13 repeals all the current provisions respecting production orders and assistance orders (ss. 487.011 to 487.02). In their place, Bill C‐13 creates a set of new powers to compel the preservation and production of documents and data. Bill C‐13 also contains an updated assistance order provision. Following is a brief break-down of the new legislation in this regard:
- Preservation Demand (Section 487.012): Section 487.012 creates a process through which a peace officer or public officer may make a legally binding demand that a person preserve computer data in his/her possession or control for 21 days in most situations. This provision is new – there is no similar power in the existing provisions. The standard that must be met for a preservation demand is reasonable grounds to suspect.
- Preservation Order (Section 487.013): Section 487.013 creates a process through which a court may issue an order that a person preserve computer data in his/her possession or control. This provision is new – there is no similar order in the existing provisions. The standard for issuance of a preservation order is reasonable grounds to suspect.
- General Production Order (Section 487.014): Section 487.014 creates a new, generally applicable production order provision. A production order may issue under this section compelling a person to produce documents in his/her possession or control and/or to generate a document based on data in his/her possession or control. This section essentially replaces existing section 487.012. The standard for issuance of this production order is reasonable grounds to believe. It may be argued that a general production order may only be obtained when no other production order is applicable, like a general warrant, but at this time, the provision is somewhat unclear as it is now written. Also note, this production order may only order the production of copies of documents. This is narrower than the existing production order provisions, which also allow for production of original documents. Under Bill C‐13, a search warrant must be obtained if originals are required.
- Production Order to Trace Communications (Section 487.015): Section 487.015 creates a new production order intended to produce data which will help to identify a device or person involved in the transmission of a communication, such as a telephone call, e‐mail or other Internet based communication, which has been sent or received. It does not apply to prospective, or “real time” communications.In practice, section 487.015 will likely apply in limited circumstances. It is intended to be used to trace rerouted communications through multiple telecommunication service providers, even though the identity of one or more of the providers is not known at the time the order is sought. It is arguable that it may also be used to obtain “tower dump” information when police have grounds to suspect that an unknown cellphone was used to make or receive a call that is relevant to an investigation. Once a production order is issued under this section, it may be served on telecommunication service providers (or others involved in the transmission of a communication), as necessary in order to trace the communication, including those providers whose identities were not known when the order was issued. The order has effect for 60 days, or for one year in the case of criminal organization and terrorism investigations. The standard for issuance of this production order is reasonable grounds to suspect. A production order to trace communications may only be obtained if there are reasonable grounds to suspect that data relating to a communication are in the possession or control of one or more persons whose identity is unknown. It is not available when the data relating to the communication are known to be in the possession of an identified service provider.
- Production Order for Historical Transmission Data (Section 487.016): Section 487.016 creates a new production order for historical (i.e. not prospective or “real time”) “transmission data”. It allows for the production of data showing the dates, times, durations, types, volumes, and origins and destinations of historical communications – essentially all information respecting historical communications except their content. The standard for issuance of this production order is reasonable grounds to suspect.Although this provision essentially replaces existing section 492.2(2), it is limited to ordering production of “transmission data”, which does not include CNA information. Since CAN information is a useful component of a production order for historical transmission data, consideration must be given to alternative means of authorizing its production. Options include a general production order or perhaps a general warrant.
- Production Order for Historical Tracking Data (Section 487.017): Section 487.017 creates a new production order for historical (i.e. not prospective or “real time”) “tracking data”. “Tracking data” are data that reveal the location of a transaction, individual or thing. The standard for issuance of this production order is reasonable grounds to suspect.
- Production Order for Financial Information (Section 487.018): Section 487.018 creates a new production order for limited financial/commercial information. This provision essentially replaces existing section 487.013. It allows for the production of data revealing account holder and account number information. The standard for issuance of this production order is reasonable grounds to suspect.
A very important addition to the legislation is Section 487.019 clarifies that preservation and production orders are effective throughout Canada. The current provisions created uncertainty about the territorial limits of production orders. As well, the Bill clarifies that section 489.1 (report to a Justice) and section 490 (orders for continued detention) do not apply to documents produced through production orders.
Order Prohibiting Disclosure (Section 487.0191): Section 487.0191 clarifies that preservation demands, preservation orders, and production orders may include terms prohibiting a person from disclosing their existence. Under Bill C‐13, such a condition may only be imposed if a narrower test is met, namely: reasonable grounds to believe that disclosure “would jeopardize the conduct of the investigation of the offence to which the preservation demand or the preservation or production order relates”.
Assistance Order (Section 487.02): Section 487.02 contains a new assistance order provision. This provision essentially replaces existing section 487.02 with no substantive changes.
Bill C‐13 amends the generally applicable sealing order provision in the Criminal Code. Section 487.3 of the Code sets out the test for the issuance of a sealing order for materials relating to search warrants, production orders, and “Feeney” warrants. Bill C‐13 updates this provision so it also applies to materials relating to preservation orders.
Bill C‐13 repeals the existing tracking warrant provisions in section 492.1 and replaces them with new and updated provisions. The new section 492.1 addresses tracking transactions or things (including vehicles), which may be authorized on a reasonable suspicion standard, and tracking individuals (by tracking things usually carried or worn), which may only be authorized on the higher reasonable belief standard. It also updates the definition of “tracking device” so it encompasses new technologies (i.e. cell phone GPS tracking). In addition, a Judge or Justice can now issue a tracking warrant. This may substantially affect procedures in provinces such as Nova Scotia because with the old legislation, the officer had no choice but to make an application before a Justice of the Peace. As well, the Bill allows for a tracking warrant to issue based on information on oath without any requirement that the information be provided in writing. The existing section 492.1 states that the information on oath must be given in writing.
Bill C‐13 repeals the existing dial‐number‐recorder warrant provisions in section 492.2. The new section 492.2 applies to a broader range of communications, including telephone calls, e‐mails, and Internet‐based communications. It no longer applies only to telephones. The transmission data recorder warrants can be issued based on the reasonable suspicion standard, but a transmission data recorder warrant shall not be issued “for the purpose of obtaining tracking data”. Note the change: the existing dial‐number‐recorder warrants are used to obtain, among other things, cell tower location data associated with telephone calls, but in the new provisions, cell tower location data meet the definition of “tracking data”. Accordingly, it would be improper to obtain a transmission data recorder warrant “for the purpose” of obtaining cell tower location data. However, cell tower location data may still be obtained through a transmission data recorder warrant – but if the “purpose” is to obtain tracking data, a tracking warrant must also be obtained. Like the new tracking warrant, the new 492.2 can now be issued by either a Judge or Justice, and it allows for a transmission data recorder warrant to issue based on information on oath without any requirement that the information be provided in writing (e.g. emergency situations).
As mentioned, these are only some of the highlights of the new legislation. If you require further information, feel free to contact me and I’ll do my best to get you the information you require.