Unauthorized Use of Computer (Offence)
|Unauthorized Use of Computer|
|s. 342.1 and 342.2 of the Crim. Code|
|Election / Plea|
summary proceedings must initiate within 12 months of the offence (786(2))
Sup. Court w/ Jury (*)
|Avail. Disp.||Discharge (730)|
Conditional Sentence (742.1)
|Maximum||2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)|
|Avail. Disp.||same as summary|
|Maximum||5 or 10 years incarceration|
- 1 Overview
- 2 Offence Wording
- 3 Proof of the Offence
- 4 Interpretation of the Offence
- 5 Participation of Third Parties
- 6 Sentencing Principles and Ranges
- 7 Ancillary Sentencing Orders
- 8 Record Suspensions and Pardons
- 9 History
- 10 See Also
Offences relating to unauthorized use of a computer are found in Part IX of the Criminal Code relating to "Offences Against Rights of Property".
|Crown Election||Defence Election
|s. 342.1 [unauthorized use of computer]
s. 342.2 [possession of device to obtain unauthorized use of computer system or to commit mischief]
|Hybrid Offence(s)||(* only if Crown proceeds by Indictment)||(under 14 years max)|
Offences under s. 342.1 [unauthorized use of computer] and 342.2 [possession of device to obtain unauthorized use of computer system or to commit mischief] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.
by Peace Officer
by Judge or Justice
s. 508(1), 512(1), or 788
s. 498, 499, and 501
a Judge or Justice
on a Release Order
s. 515 to 519
|Direct to Attend |
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
|s. 342.1 [unauthorized use of computer] or
342.2 [possession of device to obtain unauthorized use of computer system or to commit mischief]
When charged under s. 342.1 [unauthorized use of computer] or 342.2 [possession of device to obtain unauthorized use of computer system or to commit mischief] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
- Reverse Onus Bail
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
- Fingerprints and Photos
A peace officer who charges a person under s. 342.1 [unauthorized use of computer] or
342.2 [possession of device to obtain unauthorized use of computer system or to commit mischief] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
- Publication Bans
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
- Offence Designations
|AG Consent Required||Serious Criminality|
s. 36 IRPA
|s. 342.1 [unauthorized use of computer]|
|s. 342.2 [possession of device to obtain unauthorized use of computer system or to commit mischief]|
Offences under s. 342.1 [unauthorized use of computer] are designated offences eligible for wiretap under s. 183.
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Draft Form of Charges
|"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"AND FURTHER at the same time and place aforesaid, he [or she]..."|
|Code Section||Subject of Offence||Draft Wording|
|342.1(1)(a)||unauthorized obtainment of a computer service||"...did obtain, directly or indirectly, a computer service [to wit: ] contrary to section 342.1(1)(a) of the Criminal Code."|
|342.1(1)(b)||unauthorized interception of a computer function||"...did by means of an electro-magnetic, acoustic, mechanical or other device [to wit: name the device], [intercepted or caused to be intercepted], directly or indirectly, a function of a computer system [to wit: describe function that was unlawfully obtained] contrary to section 342.1(1)(b) of the Criminal Code."|
|342.1(1)(c)||unauthorized use to obtain computer service||"...did [use or causes to be used], directly or indirectly, a computer system with intent to [commit an offence under 342.1(1)(a)] contrary to section 342.1(1)(c) of the Criminal Code."|
|342.1(1)(c)||unauthorized use to intercept a computer function||"...did [use or causes to be used], directly or indirectly, a computer system with intent to [commit an offence under 342.1(1)(b)] contrary to section 342.1(1)(c) of the Criminal Code."|
|342.1(1)(c)||unauthorized use to commit mischief to data||"...did [use or causes to be used], directly or indirectly, a computer system with intent to [commit an offence section 430(5)] contrary to section 342.1(1)(c) of the Criminal Code."|
|342.2||possession of device to obtain unauthorized use of computer system or to commit mischief||"...did without lawful justification or excuse [make, possess, sell, offer for sale, import, obtain for use, distribute or make available] a device that is designed or adapted primarily to commit an offence under [section 342.1 or 430], to wit: [describe act], contrary to section 342.2 of the Criminal Code."|
Proof of the Offence
Proving fraudulently obtaining of computer services under s. 342.1(1)(a) should include:
Proving unauthorized interception of a computer system function under s. 342.1(1)(b) should include:
Proving obtaining computer system with intent for unauthorized use under s. 342.1(1)(c) should include:
Proving sharing passwords for unauthorized use of a computer system under s. 342.1(1)(d) should include:
Proving Possession of device to obtain unauthorized use of a computer system or to commit mischief under s. 342.2 should include:
Interpretation of the Offence
The crown must prove that the accused had the knowledge that the act and intended use was wrong.
The Crown must also prove that the accused obtained the services "knowingly and voluntarily". This requires that there was an "intent to commit the prohibited act" and that the act was known to be prohibited "with regard to the planned purposes of this use".
- "Colour of Right"
- see Colour of Right
Mistaken understanding of the proper use policy may provide for a defence.
- Definitions Relating to Computer Devices
A computer system includes the switches which transfer text messages between cell phones.
To establish a blackberry as a computer system there should be some evidence, particularly expert evidence, establishing it as containing a computer program.
- Example Circumstances
The unauthorized access to policing systems such as CPIC may constitute fraudulent access to a computer system contrary to s. 342.1(1)(a). There is suggestion that the act of engaging in "spear phishing" to gain access to email accounts is also a violation of s. 342.1.
- R v Parent, 2012 QCCA 1653 (CanLII), per Gagnon JA
- Parent, ibid., at para 50 ("In order to prove the offence set out in paragraph 342.1(1)(a) Cr.C., the prosecution had to show that the respondent had obtained a computer service knowingly and voluntarily. This required evidence of his intent to commit the prohibited act, knowing that this act was prohibited with regard to the planned purposes of this use. In my view, this is the mens rea required for offences, subject of this appeal to be committed.")
- R v Lauzon, 2013 QCCQ 5060 (CanLII), per Labrie J
- R v Woodward, 2011 ONCA 610 (CanLII), per Moldaver JA - required expert testimony
R v Cockell, 2013 ABCA 112 (CanLII), per Bielby JA, at para 66 ("There was no expert evidence as to the exact nature of a Blackberry, nor which showed it contained computer programs or other data, and that pursuant to those computer programs performed logic and control or any other function.")
e.g. see Parent, ibid.
R v Braile, 2018 ABQB 361 (CanLII), per Mahoney J
R v O’Brien, 2015 CM 1013 (CanLII), per Dutil J - re CPIC access and Security and Military Police Information System (SAMPIS) access
- United States v Baratov, 2017 ONCA 481 (CanLII), per Miller JA
Participation of Third Parties
- Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
- On Finding of Guilt
s. 606(4.1), (4.2)
|Victim Notice |
of Impact Statement
|s. 342.1 [unauthorized use of computer]||(only if Crown proceeds by Indictment)|
For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 342.1), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".
Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Sentencing Principles and Ranges
- Maximum Penalties
|s. 342.1 [unauthorized use of computer] and
s. 342.2 [possession of device to obtain unauthorized use of computer system or to commit mischief]
|summary election||2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)|
|s. 342.1 [unauthorized use of computer]||indictable election||10 years incarceration|
|s. 342.2 [possession of device to obtain unauthorized use of computer system or to commit mischief]||indictable election||5 years incarceration|
Offences under s. 342.1 and 342.2 [possession of device to obtain unauthorized use of computer system or to commit mischief] are straight indictable. The maximum penalty is 10 years incarceration under s. 342.1 and 5 years incarceration under s. 342.2.
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Dispositions
s. 718.3, 787
|s. 342.1 [unauthorized use of computer], 342.2 [possession of device to obtain unauthorized use of computer system or to commit mischief]||N/A|
For offences under s. 342.1 and 342.2, all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
Ancillary Sentencing Orders
- Offence-specific Orders
|DNA Orders||s. 342.1 [unauthorized use of computer]||
|Forfeiture of Computer Equipment||s. 342.2 [possession of device to obtain unauthorized use of computer system or to commit mischief]||
- General Sentencing Orders
|Non-communication order while offender in custody (s. 743.21)||any||The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.|
|Restitution Orders (s. 738)||any||A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.|
|Victim Fine Surcharge (s. 737)||any||A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).|
- General Forfeiture Orders
|Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))||any||Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.|
|Fine in Lieu of Forfeiture (s. 462.37(3))||any||Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.|
|Forfeiture of Weapons or Firearms (s. 491)||any||Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.|
|Forfeiture of Offence-related Property (s. 490.1)||any||Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.|
Record Suspensions and Pardons
Convictions under s. 342.1 [unauthorized use of computer] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".
1997 to 2014