Backgrounder
From distributing child pornography to enabling criminals to coordinate and plan a wide range of traditional crimes, the Internet has changed the way crimes are committed. Many of today's crimes involve the use of mobile cell phones or computers to send messages through the Internet, making some crimes easier to commit and more difficult to detect.
Unlike forensic evidence found at the scene of a crime, digital evidence is scattered across dozens of devices and computer networks. These are often located in different cities throughout Canada, and all over the world. Moreover, the data often has a very short life span making the need to obtain evidence in a timely manner crucial to the outcome of an investigation.
Police are currently investigating crime in Canada with investigative powers that are not up to speed with new technologies. In order to keep pace with modern communications technology and give investigators the tools they need to perform complex investigations in today's high-tech world, legislation must be modernized.
Using the results of consultations that took place over the last few years with stakeholders including provincial and territorial partners, law enforcement officers, privacy advocates and industry, the Government is proposing amendments to the Criminal Code, the Mutual Legal Assistance in Criminal Matters Act (MLACMA) and the Competition Act. These amendments respond to the ever-evolving technological environment, while protecting the human rights of persons in Canada, including their right to a reasonable expectation of privacy.
Issues addressed by this proposed legislation include:
Child sexual exploitation
The Criminal Code currently prohibits anyone from using the Internet to communicate directly with a child for the purpose of facilitating child sexual exploitation (for example, to arrange an in-person meeting with the child, referred to as the "luring offence"). However, it does not prohibit people from agreeing or making arrangements with another person to sexually exploit a child.
A new offence, carrying a maximum penalty of 10 years imprisonment, would be created to prohibit anyone from using a computer system, such as the Internet, to agree or make arrangements with another person for the purpose of sexually exploiting a child. Like the luring offence, this new "communication" offence could also be used in the context of undercover investigations.
Obtaining transmission data
The Criminal Code currently allows police to obtain telephone numbers dialled to and from a target's telephone. The proposed amendments (particularly s. 492.2 of the Criminal Code) would be updated to allow police to obtain data from the telephone and the Internet, by creating a new concept called "transmission data." Transmission data, which does not include the content of a private communication, would be subject to the same threshold of "reasonable grounds to suspect" as the former Criminal Code provision, which only covered telephone data. Such data could be obtained under two different types of judicial orders: a warrant (when the data is acquired in real-time), or a production order for historical data.
Another measure to ensure that a communication can be traced back to the initial service provider is the expedited partial disclosure of transmission data. This measure would allow police to request the disclosure of enough transmission data to trace all the service providers involved in the transmission of specific data. It would not only help trace domestic cybercrime when criminals attempt to hide their tracks, but also enhance international cooperation in this respect. Telecommunications generally pass through many jurisdictions, and it is necessary that all partner states have the ability to quickly determine the origin of a particular transmission during investigations.
Preservation order
The amendments would create a preservation order that would require a telecommunication service provider (TSP) to safeguard and not delete its data related to a specific communication or a subscriber when police believe the data will assist in an investigation. A preservation order is a "quick-freeze", temporary order, and would only be in effect for as long as it takes law enforcement to return with a search warrant or production order to obtain the data. This is not data retention. Contrary to what is the case in some other countries, the amendments would not require custodians of data to collect and store data for a prescribed period of time for all subscribers, regardless of whether or not they are subject to an investigation. A preservation order is restricted to the data that would assist in a specific investigation.
Tracking warrants
Amendments would allow police to remotely activate existing tracking devices that are found in certain types of technologies (such as cell phones and tracking devices in some cars) and would also continue to permit the police to install a separate device that would allow for tracking. A new provision would also be added to allow peace and public officers to obtain the tracking information through a production order.
Possession of a computer virus for the purpose of mischief
Finally, the amendments would update the Criminal Code (s. 342.2) to make it illegal to possess a computer virus for the purpose of committing an offence of mischief. Currently, only the actual or attempted mischief created by the spread of a computer virus is punishable.
Modernizing the Mutual Legal Assistance in Criminal Matters Act and the Competition Act
The proposed modifications to the Criminal Code would also be reflected in the Mutual Legal Assistance in Criminal Matters Act (MLACMA) and the Competition Act to provide police and the Competition Bureau with the proper tools to investigate computer and computer-related crimes while ensuring that the rights of Canadians are protected. The proposed amendments to the Mutual Legal Assistance in Criminal Matters Act would widen the scope of assistance that Canada could provide to its treaty partners in fighting serious crimes, including computer and computer-related crime, at an international level. Amendments to the Competition Act would allow the Competition Bureau to better address significant technology-related challenges that affect its ability to obtain evidence, especially for the violations of deceptive marketing practices and false or misleading representation provisions.
International considerations
The global reach of cybercrime and the transnational nature of organized criminal activity in this area reveal that international cooperation is a necessity in many investigations. The proposed legislative amendments would also create the legislative framework necessary for Canada to ratify the Council of Europe's Convention on Cybercrime and the Additional Protocol to the Convention on cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems.
These important multilateral treaties, which were signed by Canada in November 2001 and July 2005 respectively, are the only instruments that provide for broad-based international cooperation to help in the investigation and prosecution of computer-related crimes. Increasing and strengthening the tools available will assist in obtaining evidence to advance criminal investigations and prosecutions. This reflects the recognition that effective and evolving international assistance mechanisms are vital in combating the ever-growing threat of international criminality.
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June 2009
