View source for Unauthorized Use of Computer (Offence)

{{LevelZero}}{{HeaderOffences}}

{{OffenceBox 
|OffenceTitle=Unauthorized Use of Computer
|OffencePage=Unauthorized Use of Computer
|Section=342.1 and 342.2|Act={{OBCCC}} 
|CrownElection= {{OBHybridElection}} 
|Jurisdiction={{OBJurisdictionAll-Under14}}  
|Bail=  {{OBBailAll}}   
|SummaryDisp= {{OBDispAll}} 
|SummaryMin= {{OBMinNone}}
|SummaryMax= {{OBSConviction}} 
|IndictableDisp= {{OBDispSame}} 
|IndictableMin= {{OBMinNone}} 
|IndictableMax= {{OBTime|5 or 10 years}} }}

==Overview==
{{OverviewIX|unauthorized use of a computer}}

; Pleadings
{{PleadingsHeader-N}}
{{PleadingsHybridList-N|s. 342.1 {{DescrSec|342.1}} <Br> s. 342.2 {{DescrSec|342.2}} | {{Yes}} | {{Yes-IfCrown}} | {{No-Under14}} }}
{{PleadingsEnd}}

{{PleadingsHybridElection-Under14|s. 342.1 {{DescrSec|342.1}} and 342.2 {{DescrSec|342.2}} }}

; Release
{{ReleaseHeader}}
|s. 342.1 {{DescrSec|342.1}} or<br> 342.2 {{DescrSec|342.2}} || {{ReleaseProfileAll}} 
|-
{{ReleaseEnd}}

{{ReleaseAllOptions|s. 342.1 {{DescrSec|342.1}} or 342.2 {{DescrSec|342.2}} }}

:''<u>Reverse Onus Bail</u>''
{{ReverseOnusCirc}}

:''Fingeprints and Photos''
{{IDCriminalAct|s. 342.1 {{DescrSec|342.1}} or<br> 342.2 {{DescrSec|342.2}} }}

; Publication Bans
{{GeneralPubBan}}

; Offence Designations
{{DesignationHeader}}
|-
|s. 342.1 {{DescrSec|342.1}} <Br> s. 342.2 {{DescrSec|342.2}} || {{OKMark}} <!--wire--> || {{XMark}} <!--DO-->||{{XMark}} <!--SPIO--> || {{XMark}} <!--consent-->
{{DesignationEnd}}
{{WiretapDesignation|s. 342.1 {{DescrSec|342.1}}}}

{{SeeBelowForAncillary}}
{{reflist|2}}

==Offence Wording==
{{quotation2|
; Unauthorized use of computer
342.1 (1) Everyone is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years, or is guilty of an offence punishable on summary conviction who, fraudulently and without colour of right,
:(a) obtains, directly or indirectly, any computer service;
:(b) by means of an electro-magnetic, acoustic, mechanical or other device, intercepts or causes to be intercepted, directly or indirectly, any function of a computer system;
:(c) uses or causes to be used, directly or indirectly, a computer system with intent to commit an offence under paragraph (a) or (b) or under section 430 {{AnnSec4|430}} in relation to computer data or a computer system; or
:(d) uses, possesses, traffics in or permits another person to have access to a computer password that would enable a person to commit an offence under paragraph (a), (b) or (c).

...<br>
R.S., 1985, c. 27 (1st Supp.), s. 45; 
{{LegHistory90s|1997, c. 18}}, s. 18; 
{{LegHistory10s|2014, c. 31}}, s. 16.
|[{{CCCSec|342.1}} CCC] 
|{{NoteUp|342.1|1}}
}}

{{quotation2|
; Possession of device to obtain unauthorized use of computer system or to commit mischief
342.‍2 (1) Every person who, without lawful excuse, makes, possesses, sells, offers for sale, imports, obtains for use, distributes or makes available a device that is designed or adapted primarily to commit an offence under section 342.‍1 {{AnnSec3|342.1A}} or 430 {{AnnSec4|430}}, knowing that the device has been used or is intended to be used to commit such an offence, is
:(a) guilty of an indictable offence and liable to imprisonment for a term of not more than two years; or
:(b) guilty of an offence punishable on summary conviction.

; Forfeiture
(2) If a person is convicted of an offence under subsection (1) {{AnnSec3|342.2(1)}}, in addition to any punishment that is imposed, any device in relation to which the offence was committed or the possession of which constituted the offence may be ordered forfeited to Her Majesty and may be disposed of as the Attorney General directs.

; Limitation
(3) No order of forfeiture may be made under subsection (2) {{AnnSec3|342.2(2)}} in respect of any thing that is the property of a person who was not a party to the offence under subsection (1) {{AnnSec3|342.2(1)}}.

...

{{LegHistory90s|1997, c. 18}}, s. 19; 
{{LegHistory10s|2014, c. 31}}, s. 17; 
{{LegHistory10s|2018, c. 29}}, s. 34.
|[{{CCCSec|342.2}} CCC]
|{{NoteUp|342.2|1|2|3}}
}}

===Draft Form of Charges===
{{seealso|Draft Form of Charges}}

{{DraftHeader}}
|-
|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){{CCC}}." 
|-
|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){{CCC}}." 
|-
|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){{CCC}}." 
|-
|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){{CCC}}." 
|-
|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){{CCC}}." 
|-
|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{{CCC}}." 
{{DraftEnd}}

==Proof of the Offence==
{{ElementHeader}}
{{ElementLeft}}
{{Proving|fraudulently obtaining of computer services|342.1(1)(a)}}<ref>
''R v Alexander'', [http://canlii.ca/t/1p263 2006 CanLII 26480] (ON SC){{perONSC|T Ducharme J}}<br>
''R v Parent'', [http://canlii.ca/t/fsrp3 2012 QCCA 1653] (CanLII){{perQCCA|Gagnon JA}}<br>
</ref>
{{InitialElements}}
# {{box}} the culprit obtained, "directly or indirectly, any computer service";
# {{box}} the service was prohibited to the culprit;
# {{box}} A reasonable person in the same circumstances as the accused would have agreed that this was a dishonest activity and 
# {{box}} the culprit did the prohibited act "fraudulently and without colour of right".

{{Proving|unauthorized interception of a computer system function|342.1(1)(b)}}
{{InitialElements}}
# {{box}} the culprit "intercepts or causes to be intercepted, directly or indirectly, any function of a computer system";
# {{box}} the interception was "by means of an electro-magnetic, acoustic, mechanical or other device";
# {{box}} the culprit did the prohibited act "fraudulently and without colour of right".

{{Proving|obtaining computer system with intent for unauthorized use|342.1(1)(c)}}
{{InitialElements}}
# {{box}} the culprit obtained, directly or indirectly, any computer system;
# {{box}} the culprit intended to commit the offence created by s. 342.1(1)(a) or s. 342.1(1)(b) or s. 430; and
# {{box}} the culprit did the prohibited act "fraudulently and without colour of right".

{{ElementRight}}

{{Proving|sharing passwords for unauthorized use of a computer system|342.1(1)(d)}}
{{InitialElements}}
# {{box}} the culprit "uses, possesses, traffics in or permits another person to have access to a computer password";
# {{box}} the password "would enable a person to commit an offence under paragraph (a), (b) or (c)";
# {{box}} the culprit did the prohibited act "fraudulently and without colour of right".
{{reflist|2}}

{{Proving|Possession of device to obtain unauthorized use of a computer system or to commit mischief|342.2}}
{{InitialElements}}
# {{box}} the culprit "makes, possesses, sells, offers for sale, imports, obtains for use, distributes or makes available a device";
# {{box}} the device is one that "that is designed or adapted primarily to commit an offence under section 342.1 or 430"; 
# {{box}} the culprit knew "that the device has been used or is intended to be used to commit such an offence" and 
# {{box}} the culprit is "without lawful excuse".

{{ElementEnd}}

{{reflist|2}}

==Interpretation of the Offence==

The crown must prove that the accused had the knowledge that the act and intended use was wrong.<Ref>
''R v Parent'', [http://canlii.ca/t/fsrp3 2012 QCCA 1653] (CanLII){{perQCCA|Gagnon JA}}
</ref>

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".<Ref>
{{ibid1|Parent}}{{atL|fsrp3|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.")
</ref>

; "Colour of Right"
* see [[Colour of Right]]

Mistaken understanding of the proper use policy may provide for a defence.<ref>
''R v Lauzon'', [http://canlii.ca/t/fxpz9 2013 QCCQ 5060] (CanLII){{perQCCQ|Labrie J}}
</ref>

; Definitions Relating to Computer Devices
{{quotation1|
342.1
<br>...<br>
; Definitions
(2) In this section,<br>...<br>
'''"computer data"''' means representations, including signs, signals or symbols, that are in a form suitable for processing in a computer system;
<br>...<br>
'''"computer password"''' means any computer data by which a computer service or computer system is capable of being obtained or used;
<br>...<br>
'''"computer program"''' means computer data representing instructions or statements that, when executed in a computer system, causes the computer system to perform a function;
<br>...<br>
'''"computer service"''' includes data processing and the storage or retrieval of computer data;
<br>...<br>
'''"computer system"''' means a device that, or a group of interconnected or related devices one or more of which,
:(a) contains computer programs or other computer data, and
:(b) by means of computer programs,
::(i) performs logic and control, and
::(ii) may perform any other function;

<br>...<br>
'''"electro-magnetic, acoustic, mechanical or other device"''' means any device or apparatus that is used or is capable of being used to intercept any function of a computer system, but does not include a hearing aid used to correct subnormal hearing of the user to not better than normal hearing;
<br>...<br>
'''"function"''' includes logic, control, arithmetic, deletion, storage and retrieval and communication or telecommunication to, from or within a computer system;
<br>...<br>
'''"intercept"''' includes listen to or record a function of a computer system, or acquire the substance, meaning or purport thereof;
<br>...<br>
'''"traffic"''' means, in respect of a computer password, to sell, export from or import into Canada, distribute or deal with in any other way.
<br>
R.S., 1985, c. 27 (1st Supp.), s. 45; {{LegHistory90s|1997, c. 18}}, s. 18; {{LegHistory10s|2014, c. 31}}, s. 16.
|[{{CCCSec|342.1}} CCC]
|{{NoteUp|}}
}}

A computer system includes the switches which transfer text messages between cell phones.<ref>
''R v Woodward'', [http://canlii.ca/t/fn76l 2011 ONCA 610] (CanLII){{perONCA|Moldaver JA}} - required expert testimony</ref>

To establish a blackberry as a computer system there should be some evidence, particularly expert evidence, establishing it as containing a computer program.<ref>
''R v Cockell'', [http://canlii.ca/t/fxfmr 2013 ABCA 112] (CanLII){{perABCA| Bielby JA}}{{atL|fxfmr|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.")<br>
</ref>

{{quotation1|
342.2<br>...<br>
; Definition of device
(4) In this section, '''"device"''' includes
:(a) a component of a device; and
:(b) a computer program within the meaning of subsection 342.1(2) {{AnnSec3|342.1(2)}}.
{{LegHistory90s|1997, c. 18}}, s. 19; {{LegHistory10s|2014, c. 31}}, s. 17; {{LegHistory10s|2018, c. 29}}, s. 34.
|[{{CCCSec|342.2}} CCC]
|{{NoteUp|}}
}}

; 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).<ref>
e.g. see {{ibid1|Parent}}<Br>
''R v Braile'', [http://canlii.ca/t/hrwml 2018 ABQB 361] (CanLII){{perABQB|Mahoney J}}<Br>
''R v O’Brien'', [http://canlii.ca/t/gnmhd 2015 CM 1013] (CanLII), ''per'' Dutil J - re CPIC access and Security and Military Police Information System (SAMPIS) access<Br>
</ref>
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.<ref>
''United States v Baratov'', [http://canlii.ca/t/h46t7 2017 ONCA 481] (CanLII){{perONCA|Miller JA}}
</ref>

{{Reflist|2}}

==Participation of Third Parties==
{{seealso|Role of the Victim and Third Parties|Testimonial Aids for Young, Disabled or Vulnerable Witnesses}}

; Testimonial Aids
{{3rdPTestimonyAids}}

; On Finding of Guilt
{{VictimHeader}} <!-- Sections / Notice of Agree / Notice of Restitution / Notice of VIS --> 
|s. 342.1 {{DescrSec|342.1}} ||{{Yes-Hybrid}} || {{Yes}} || {{Yes}} 
|- 
{{VictimEnd}}

{{606Notice5Y|s. 342.1}}

{{RestitutionNotice}}

{{VISNotice}}

==Sentencing Principles and Ranges==
{{seealsoSentencing}}
{{seealsoSentencingProperty}}

; Maximum Penalties
{{SProfileMaxHeader}}
{{SProfileMax|s. 342.1 {{DescrSec|342.1}} and <br>s. 342.2 {{DescrSec|342.2}} | Summary Election | {{summaryconviction}} }}
{{SProfileMax|s. 342.1 {{DescrSec|342.1}}| Indictable Election | {{Max10Years}} }}
{{SProfileMax|s. 342.2 {{DescrSec|342.2}}| Indictable Election | {{Max5Years}} }}
{{SProfileEnd}}

{{MaxPenaltyIndictment|s. 342.1 and 342.2 {{DescrSec|342.2}}|'''{{Max10Years}}''' under s. 342.1 and '''{{Max5Years}}''' under s. 342.2|'''{{summaryconviction}}'''}}

; Minimum Penalties
{{NoMinimumPenalties}}

; Available Dispositions
{{SProfileAvailHeader}}
|s. 342.1 {{DescrSec|342.1}}, 342.2 {{DescrSec|342.2}}|| {{NA}} || {{SProfileAll}}
|-
{{SProfileEnd}}

{{AllDispositionsAvailable1|s. 342.1 and 342.2}}

; Consecutive Sentences
{{NoConsecutive}}

===Principles===

===Ranges===
{{seealsoRanges|Unauthorized Use of Computer}}

==Ancillary Sentencing Orders==
{{seealso|Ancillary Orders}}
	
; Offence-specific Orders
{{AOrderHeader}}
|-
| [[DNA Orders]] ||s. 342.1 {{DescrSec|342.1}} ||
* {{SecondDNA(AorB)Hybrid|s. 342.1 {{DescrSec|342.1}}}}
|-
| Forfeiture of Computer Equipment || s. 342.2 {{DescrSec|342.2}}||
* Discretionary forfeiture order under section 342.2(2), If convicted under section 342.2.
{{AOrderEnd}}

; General Sentencing Orders
{{GeneralSentencingOrders}}

; General Forfeiture Orders
{{GeneralForfeitureOrders}}

==Record Suspensions and Pardons== 

{{RecordSuspension|s. 342.1 {{DescrSec|342.1}} }}

==History==
===1997 to 2014===
{{quotation1|
; Unauthorized use of computer
342.1 (1) Every one who, fraudulently and without colour of right,
:(a) obtains, directly or indirectly, any computer service,
:(b) by means of an electro-magnetic, acoustic, mechanical or other device, intercepts or causes to be intercepted, directly or indirectly, any function of a computer system,
:(c) uses or causes to be used, directly or indirectly, a computer system with intent to commit an offence under paragraph (a) or (b) or an offence under section 430 in relation to data or a computer system, or
:(d) uses, possesses, traffics in or permits another person to have access to a computer password that would enable a person to commit an offence under paragraph (a), (b) or (c)

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, or is guilty of an offence punishable on summary conviction.

...<Br>
R.S., 1985, c. 27 (1st Supp.), s. 45; {{LegHistory90s|1997, c. 18}}, s. 18.

|[http://canlii.ca/t/524k2#sec342.1 CCC]
|{{NoteUp|}}
}}

==See Also==
* [[Pre-Trial and Trial Motions Checklist]]
{{OffencesNavBar/Property}}