View source for Telecommunication Offences (Offence)

{{Currency2|January|2020}}
{{LevelZero}}
{{HeaderOffences}}

{{OffenceBox 
|OffenceTitle=Telecommunication Offences 
|OffencePage=Telecommunication Offences 
|Section=327(1) and 372
|Act={{OBCCC}} 
|CrownElection={{OBHybridElection}} (327(1), 372) 
|Jurisdiction={{OBJurisdictionAll-Under14}}  
|Bail={{OBBailVar}}
|SummaryDisp= {{OBDispAll}} 
|SummaryMin= {{OBMinNone}} 
|SummaryMax= {{OBSConviction}}
|IndictableDisp={{OBDispSame}} 
|IndictableMin= {{OBMinNone}}
|IndictableMax= {{OBTime|2 years}} }}

==Overview==
{{Seealso|Theft (Offence)}} for offences relating the theft of telecommunications
{{OverviewIX|telecommunications}}

; Pleadings

{{PleadingsHeader-N}}
{{PleadingsHybridList-N|s. 327(1)  {{DescrSec|327}} and<Br> s. 372  {{DescrSec|372}}| {{Yes}} | {{Yes-IfCrown}} | {{No-Under14}} }}
{{PleadingsEnd}}

{{PleadingsHybridElection-Under14|s. 327(1) {{DescrSec|327}} and 372 {{DescrSec|372}} }}

; Release
{{ReleaseHeader}}
|s. 327(1) {{DescrSec|327}} and<Br>s. 372 {{DescrSec|372}} || {{ReleaseProfile-Hybrid}} 
|-
{{ReleaseEnd}}

{{ReleaseOptions-Hybrid|s. 327 {{DescrSec|327}} and 372 {{DescrSec|372}} }}

:''<u>Renversement du fardeau de la preuve</u>''
{{ReverseOnusCirc}}

; Publication Bans
{{GeneralPubBan}}

; Offence Designations
{{DesignationHeader}}
|-
|s. 327(1) {{DescrSec|327}} and<Br>s. 372 {{DescrSec|372}}
|| {{OKMark}} <!--wire--> || {{XMark}} <!--DO-->||{{XMark-Under10}} <!--SPIO--> || {{XMark}} <!--consent--> ||{{XMark}}

{{DesignationEnd}}

{{SeeBelowForAncillary}}

==Offence Wording==

{{quotation2|
; Possession of device to obtain use of telecommunication facility or service
327 (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 use a telecommunication facility or obtain a telecommunication service without payment of a lawful charge, knowing that the device has been used or is intended to be used for that purpose, 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|327(1)}} or paragraph 326(1)(b) {{AnnSec3|326(1)(b)}}, 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 for forfeiture is to be made in respect of telecommunication facilities or equipment by means of which an offence under subsection (1) {{AnnSec3|327(1)}} is committed if they are owned by a person engaged in providing a telecommunication service to the public or form part of such a person’s telecommunication service or system and that person is not a party to the offence.

; 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)}}.

R.S., {{LegHistory80s|1985, c. C-46}}, s. 327; 
{{LegHistory10s|2014, c. 31}}, s. 15;
{{LegHistory10s|2018, c. 29}}, s. 32.
{{Annotation}}
|{{CCCSec2|327}}
|{{NoteUp|327|1|2|3|4}}
}}

{{quotation2|
; False information
372 (1) Everyone commits an offence who, with intent to injure or alarm a person, conveys information that they know is false, or causes such information to be conveyed by letter or any means of telecommunication.
<br>
; Indecent communications
(2) Everyone commits an offence who, with intent to alarm or annoy a person, makes an indecent communication to that person or to any other person by a means of telecommunication.
<br>
; Harassing communications
(3) Everyone commits an offence who, without lawful excuse and with intent to harass a person, repeatedly communicates, or causes repeated communications to be made, with them by a means of telecommunication.
<br>
; Punishment
(4) Everyone who commits an offence under this section 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.

R.S., {{LegHistory80s|1985, c. C-46}}, s. 372; 
{{LegHistory10s|2014, c. 31}}, s. 18.
{{Annotation}}
|{{CCCSec2|372}}
|{{NoteUp|372|1|2|3|4}}
}}

===Draft Form of Charges===
{{seealso|Draft Form of Charges}}
{{DraftHeader}}
|-
| 327
| instrument or device to obtain telecom service without payment.
|"{{ellipsis1}}, did without lawful excuse, manufacture, possess, sell or offer for sale or distribute any instrument or device or any component thereof, the design of which renders it primarily useful for obtaining the use of any telecommunication facility or service, under circumstances that give rise to a reasonable inference that the device has been used or is or was intended to be used to obtain the use of any telecommunication facility or service without payment of a lawful charge therefor{{ToWit-Particulars}} {{contrary|327}}."
|-
| 372(1)
|false information
|"{{ellipsis1}}, did with intent to injure or alarm a person, convey information that they knew was false, or caused such information to be conveyed by letter or any means of telecommunication{{ToWit-Particulars}} {{contrary|372(1)}}."
|-
| 372(2)
|indecent communication
|"{{ellipsis1}}, did with intent to alarm or annoy [name1], made an indecent communication to that person or to any other person by means of telecommunication{{ToWit-Particulars}} {{contrary|372(2)}}."
|-
| 372(3)
|harassing communications
|"{{ellipsis1}}, did without lawful excuse and with intent to harass [name1], repeatedly communicated, or caused repeated communications to be made, with them by means of telecommunication{{ToWit-Particulars}} {{contrary|372(3)}}."

{{DraftEnd}}

==Proof of the Offence==
{{ElementHeader}}

{{ElementLeft}}

{{Proving|Possession, etc., of device to obtain use of telecommunication facility or telecommunication service|327}}
{{InitialElements}}
# {{box}} the culprit "makes, possesses, sells, offers for sale, imports, obtains for use, distributes or makes available" a thing;
# {{box}} the thing is a "device that is designed or adapted primarily to use a telecommunication facility or obtain a telecommunication service without payment of a lawful charge";
# {{box}} the circumstances "give rise to a reasonable inference that the device has been used or is or was intended to be used for that purpose";
# {{box}} the culprit has no "lawful excuse"

{{ElementRight}}

{{Proving|conveying false information|372(1)}}
{{InitialElements}}
# {{box}} the culprit "conveys information" or "causes such information to be conveyed";
# {{box}} the manner of conveyance is by "letter or any means of telecommunication";
# {{box}} the information conveyed was false;
# {{box}} the culprit knew the information was false;
# {{box}} the culprit intended to "injure or alarm a person".

{{ElementLeft}}

{{Proving|indecent communication|372(2)}}
{{InitialElements}}
# {{box}} the culprit makes a communication to another person;  
# {{box}} the communication is by "means of telecommunication";
# {{box}} the communication is "indecent"; and
# {{box}} the culprit committed the prohibited act intending to "alarm or annoy" that person or any other person. 

{{ElementRight}}

{{Proving|harassing communications|372(3)}}
{{InitialElements}}
# {{box}} the culprit communicates repeatedly or "causes repeated communications to be made";
# {{box}} the communication is by "means of telecommunication";
# {{box}} the culprit did the prohibited conduct intending to harass a person; and;
# {{box}} the culprit had no "lawful excuse" for the prohibited conduct.

{{ElementEnd}}

==Interpretation==


===Misc Definitions===
"Indecent" is also used in [[Indecent Act (Offence)]].

"Harass" is also used in [[Criminal Harassment (Offence)]].

; "Distributes and Makes Available"
For interpretation "distributes or makes available", see [[Definition of Terms Relating to Transactions and Transferences]].

; "Telecommunications"
Section 35 of the Interpretation Act states that "telecommunications" "means the emission, transmission or reception of signs, signals, writing, images, sounds or intelligence of any nature by any wire, cable, radio, optical or other electromagnetic system, or by any similar technical system."<ref>
See Interpretation Act, [http://canlii.ca/t/52f1g RSC 1985, c I-21]<br>
</ref>

A "telecommunications facility" requires that there be some transmission or reception that is external to the facility.<ref>
{{CanLIIRP|McLaughlin|1z48m|1980 CanLII 212 (SCC)|[1980] 2 SCR 331}}{{atp|336}}("Telecommunications requires some form of ("What is involved here is a data processing facility rather than a telecommunication facility, although it incorporates electronic equipment. Taking the facility as a whole (the central processing unit and the terminals), there was no transmission or reception externally. Although there was transmission of intelligence from one part of the facility to another, there was no reception by other facilities nor emissions from this facility. In my opinion, the conduct of the accused is not so clearly caught by the statute as to warrant a conviction thereunder.")
</ref>

Further, s. 4(7) of the Code states:
{{quotation2|
4<Br>
{{removed|(1), (2), (3), (4), (5), (6), (6.1) and (7)}}
; Means of telecommunication
(8) For greater certainty, for the purposes of this Act, if the elements of an offence contain an explicit or implicit element of communication without specifying the means of communication, the communication may also be made by a means of telecommunication.
<br>
R.S., {{LegHistory80s|1985, c. C-46}}, s. 4; R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 3; {{LegHistory90s|1994, c. 44}}, s. 3; {{LegHistory90s|1997, c. 18}}, s. 2; {{LegHistory00s|2008, c. 18}}, s. 1; {{LegHistory10s|2014, c. 31}}, s. 2.
|{{CCCSec2|4}}
|{{NoteUp|4|8}}
}}

{{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. s. 327(1) {{DescrSec|327}} and <br>s. 372 {{DescrSec|372}}
|| || || 
|- 
{{VictimEnd}}

{{606Notice5Y|s. 371 {{DescrSec|371}}}}

{{RestitutionNotice}}

{{VISNotice}}

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

; Maximum Penalties
{{SProfileMaxHeader}}
{{SProfileMax|327 {{DescrSec|327}}, <br>s. 372(1) {{DescrSec|372}} | {{summary}} | {{MaxSummary}} }}
{{SProfileMax|s. 245(b) {{DescrSec|245(b)}}                                      | {{indictment}} | {{Max2Years}}  }}
{{SProfileEnd}}

{{MaxPenaltyHybrid|s. 327 {{DescrSec|327}},  372 {{DescrSec|372}} |'''{{Max2Years}}'''|'''{{summaryconviction}}'''}}

; Minimum Penalties
{{NoMinimumPenalties}}

; Available Dispositions
{{SProfileAvailHeader}}
|s. 327 {{DescrSec|327}},<Br>s. 372(1) {{DescrSec|372}}|| {{summary}}    || {{SProfileAll}}
|-
|s. 327 {{DescrSec|327}},<Br>s. 372(1) {{DescrSec|372}}|| {{indictment}} || {{SProfileAll}}
|-
{{SProfileEnd}}

{{AllDispositionsAvailable}}

; Consecutive Sentences
{{NoConsecutive}}

==Ancillary Sentencing Orders==

; Offence-specific Orders<!--- NEED to verify the ancillary orders for these offences -->

; General Sentencing Orders
{{GeneralSentencingOrders}}

; General Forfeiture Orders
{{GeneralForfeitureOrders}}

==Record Suspensions and Pardons== 
{{RecordSuspension|s. 326, 327 and 372}}

==History==
{{quotation1|
; Possession of device to obtain telecommunication facility or service
327 (1) Every one who, without lawful excuse, the proof of which lies on him, manufactures, possesses, sells or offers for sale or distributes any instrument or device or any component thereof, the design of which renders it primarily useful for obtaining the use of any telecommunication facility or service, under circumstances that give rise to a reasonable inference that the device has been used or is or was intended to be used to obtain the use of any telecommunication facility or service without payment of a lawful charge therefor, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
<br>
; Forfeiture
(2) Where a person is convicted of an offence under subsection (1) or paragraph 326(1)(b), any instrument or device in relation to which the offence was committed or the possession of which constituted the offence, on such conviction, in addition to any punishment that is imposed, may be ordered forfeited to Her Majesty, whereupon it may be disposed of as the Attorney General directs.
<br>
; Limitation
(3) No order for forfeiture shall be made under subsection (2) in respect of telephone, telegraph or other communication facilities or equipment owned by a person engaged in providing telephone, telegraph or other communication service to the public or forming part of the telephone, telegraph or other communication service or system of such a person by means of which an offence under subsection (1) has been committed if such person was not a party to the offence.
<br>
1974-75-76, c. 93, s. 24.
|[http://canlii.ca/t/524k2#sec327 CCC]
|{{NoteUp|}}
}}

{{quotation2|
; Telegram, etc., in false name
371. Every one who, with intent to defraud, causes or procures a telegram, cablegram or radio message to be sent or delivered as being sent by the authority of another person, knowing that it is not sent by his authority and with intent that the message should be acted on as being sent by his authority, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
<br>
R.S., c. C-34, s. 329.
|[http://canlii.ca/t/524k2#sec371 CCC]
|{{NoteUp|371}}
}}

{{quotation2|
; False messages
372 (1) Every one who, with intent to injure or alarm any person, conveys or causes or procures to be conveyed by letter, telegram, telephone, cable, radio or otherwise information that he knows is false is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
<br>
; Indecent telephone calls
(2) Every one who, with intent to alarm or annoy any person, makes any indecent telephone call to that person is guilty of an offence punishable on summary conviction.
<br>
; Harassing telephone calls
(3) Every one who, without lawful excuse and with intent to harass any person, makes or causes to be made repeated telephone calls to that person is guilty of an offence punishable on summary conviction.
<br>
R.S., c. C-34, s. 330.
|[http://canlii.ca/t/524k2#sec327 CCC]
|{{NoteUp|372|1|2|3}}
}}

==See Also==
* [[Unauthorized Use of Computer (Offence)]]