Telecommunication Offences (Offence): Difference between revisions

Telecommunication Offences
	s. 327(1) and 372 of the Crim. Code
Election / Plea
Crown Election	Hybrid (327(1), 372); summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction	Prov. Court; Sup. Court w/ Jury (); Sup. Court w/ Judge-alone (); * Must be indictable.
Summary Dispositions
Avail. Disp.	Discharge (730); Suspended Sentence (731(1)(a)); Fine (734); Fine + Probation (731(1)(b)); Jail (718.3, 787); Jail + Probation (731(1)(b)); Jail + Fine (734); Conditional Sentence (742.1);
Minimum	None
Maximum	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp.	same as summary
Minimum	None
Maximum	2 years incarceration
Reference
	Offence Elements; Sentence Digests;

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Overview

See also: Theft (Offence) for offences relating the theft of telecommunications

Offences relating to telecommunications are found in Part IX of the Criminal Code relating to "Offences Against Rights of Property".

Pleadings

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)	Preliminary Inquiry
s. 327(1) [possession of device to obtain use of telecommunication facility or service] and s. 372 [sending illegal information]	Hybrid Offence(s)		(* only if Crown proceeds by Indictment)	(under 14 years max)

Offences under s. 327(1) [possession of device to obtain use of telecommunication facility or service] and 372 [sending illegal information] 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.

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By 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. 327(1) [possession of device to obtain use of telecommunication facility or service] and s. 372 [sending illegal information]

When charged under s. 327 [possession of device to obtain use of telecommunication facility or service] and 372 [sending illegal information] , 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 weapon, being 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)).

And, regardless of Crown election, if the offence alleged was one:

where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

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

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 327(1) [possession of device to obtain use of telecommunication facility or service] and s. 372 [sending illegal information]			(under 10 years max)

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

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) [possession of device to obtain use of telecommunication facility or service] or paragraph 326(1)(b) [theft by use telecom facility or service], 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) [possession of device to obtain use of telecommunication facility or service] 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) [unauthorized use of computer – definitions].

R.S., 1985, c. C-46, s. 327; 2014, c. 31, s. 15; 2018, c. 29, s. 32.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 327 (1), (2), (3), and (4)

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.

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.

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.

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., 1985, c. C-46, s. 372; 2014, c. 31, s. 18.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 372 (1), (2), (3), and (4)

Draft Form of Charges

See also: Draft Form of Charges

		Pre-ambles
		"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
327	instrument or device to obtain telecom service without payment.	"..., 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, to wit: [particulars], contrary to section 327 of the Criminal Code."
372(1)	false information	"..., 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, to wit: [particulars], contrary to section 372(1) of the Criminal Code."
372(2)	indecent communication	"..., did with intent to alarm or annoy [name1], made an indecent communication to that person or to any other person by means of telecommunication, to wit: [particulars], contrary to section 372(2) of the Criminal Code."
372(3)	harassing communications	"..., 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, to wit: [particulars], contrary to section 372(3) of the Criminal Code."

Proof of the Offence

Proving Possession, etc., of device to obtain use of telecommunication facility or telecommunication service under s. 327 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit "makes, possesses, sells, offers for sale, imports, obtains for use, distributes or makes available" a thing; ☐ 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"; ☐ 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"; ☐ the culprit has no "lawful excuse"	Proving conveying false information under s. 372(1) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit "conveys information" or "causes such information to be conveyed"; ☐ the manner of conveyance is by "letter or any means of telecommunication"; ☐ the information conveyed was false; ☐ the culprit knew the information was false; ☐ the culprit intended to "injure or alarm a person".
Proving indecent communication under s. 372(2) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit makes a communication to another person; ☐ the communication is by "means of telecommunication"; ☐ the communication is "indecent"; and ☐ the culprit committed the prohibited act intending to "alarm or annoy" that person or any other person.	Proving harassing communications under s. 372(3) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit communicates repeatedly or "causes repeated communications to be made"; ☐ the communication is by "means of telecommunication"; ☐ the culprit did the prohibited conduct intending to harass a person; and; ☐ the culprit had no "lawful excuse" for the prohibited conduct.

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."^[1]

A "telecommunications facility" requires that there be some transmission or reception that is external to the facility.^[2]

Further, s. 4(7) of the Code states:

4
[omitted (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.
R.S., 1985, c. C-46, s. 4; R.S., 1985, c. 27 (1st Supp.), s. 3; 1994, c. 44, s. 3; 1997, c. 18, s. 2; 2008, c. 18, s. 1; 2014, c. 31, s. 2.

– CCC (CanLII), (DOJ)

Note up: 4 (8)

↑ See Interpretation Act, RSC 1985, c I-21
↑ R v McLaughlin, 1980 CanLII 212 (SCC), [1980] 2 SCR 331, at p. 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.")

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

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

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. 327(1) [possession of device to obtain use of telecommunication facility or service] and s. 372 [sending illegal information]

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 371 [message in false name]), 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

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
327 [possession of device to obtain use of telecommunication facility or service], s. 372(1) [sending illegal information]	summary election	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 245(b) [administer noxious thing - intent to aggrieve or annoy]	indictable election	2 years incarceration

Offences under s. 327 [possession of device to obtain use of telecommunication facility or service], 372 [sending illegal information] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s)	Crown Election	Discharge s. 730	Suspended Sentence s. 731(1)(a)	Stand-alone Fine s. 731(1)(b)	Custody s. 718.3, 787	Custody and Probation s. 731(1)(b)	Custody and Fine s. 734	Conditional Sentence (CSO) s. 742.1
s. 327 [possession of device to obtain use of telecommunication facility or service], s. 372(1) [sending illegal information]	summary election
s. 327 [possession of device to obtain use of telecommunication facility or service], s. 372(1) [sending illegal information]	indictable election

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

General Sentencing Orders

Order	Conviction	Description
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	Conviction	Description
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 His Majesty the King on application of the Crown. NB: does not* apply to summary offences*.
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. NB: does not* apply to summary offences*.

Record Suspensions and Pardons

Convictions under s. 326, 327 and 372 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".

History

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.

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.

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.
1974-75-76, c. 93, s. 24.

– CCC

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.
R.S., c. C-34, s. 329.

– CCC

Note up: 371

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.

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.

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.
R.S., c. C-34, s. 330.

– CCC

Note up: 372 (1), (2) and (3)