Unauthorized Use of Computer (Offence)

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Unauthorized Use of Computer
s. 342.1 and 342.2 of the Crim. Code
Election / Plea
Crown Election	Hybrid 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. Preliminary inquiry also available.
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	5 or 10 years incarceration
Reference
Offence Elements Sentence Digests

Overview

Offences relating to unauthorized use of a computer are found in Part IX of the Criminal Code relating to "Offences Against Rights of Property".

Pleadings

Template:PleadingsHybridList

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)

Offences under s. 342.1 and 342.2 are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

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. 342.1 or 342.2	Template:ReleaseProfileAll

When charged under s. 342.1 or 342.2, 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.

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));

A peace officer who charges a person under s. 342.1 or 342.2 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
Offences under s. 342.1 are designated offences eligible for wiretap under s. 183.

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

Offence Wording

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 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).

...
R.S., 1985, c. 27 (1st Supp.), s. 45; 1997, c. 18, s. 18; 2014, c. 31, s. 16.

– CCC

Possession of device to obtain unauthorized use of computer system or to commit mischief
342.2 (1) Everyone 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 or 430, under circumstances that give rise to a reasonable inference that the device has been used or is or was 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), 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) in respect of any thing that is the property of a person who was not a party to the offence under subsection (1).

...

1997, c. 18, s. 19; 2014, c. 31, s. 17.R.S., 1985, c. 27 (1st Supp.), s. 45; 1997, c. 18, s. 18.

– CCC

Proof of the Offence

Proving unauthorized obtaining of computer services under s. 342.1(1)(a) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) the culprit obtained, "directly or indirectly, any computer service"; the service was prohibited to the culprit; A reasonable person in the same circumstances as the accused would have agreed that this was a dishonest activity and the culprit did the prohibited act "fraudulently and without colour of right". Proving unauthorized interception of a computer system function under s. 342.1(1)(b) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) the culprit "intercepts or causes to be intercepted, directly or indirectly, any function of a computer system"; the interception was "by means of an electro-magnetic, acoustic, mechanical or other device"; the culprit did the prohibited act "fraudulently and without colour of right". Proving obtaining computer system for unauthorized use under s. 342.1(1)(c) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) the culprit obtained, directly or indirectly, any computer system; the culprit intended to commit the offence created by s. 342.1(1)(a) or s. 342.1(1)(b) or s. 430; and the culprit did the prohibited act "fraudulently and without colour of right".

Proving sharing passwords for unauthorized use of a computer system under s. 342.1(1)(d) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) the culprit "uses, possesses, traffics in or permits another person to have access to a computer password"; the password "would enable a person to commit an offence under paragraph (a), (b) or (c)"; the culprit did the prohibited act "fraudulently and without colour of right". Proving Possession of device to obtain unauthorized use of computer system or to commit mischief under s. 342.2 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 device"; the device is one that "that is designed or adapted primarily to commit an offence under section 342.1 or 430"; the prohibited act was in circumstances "that give rise to a reasonable inference that the device has been used or is or was intended to be used to commit such an offence" and the culprit is "without lawful excuse".

Interpretation of the Offence

The Crown must prove that the accused acted "without colour of right" and must be acting dishonestly and in bad faith.

The crown must prove that the accused had the knowledge that the act and intended use was wrong.

Definitions

342.1
...
Definitions
(2) In this section,
...
“computer data” means representations, including signs, signals or symbols, that are in a form suitable for processing in a computer system;
...
“computer password” means any computer data by which a computer service or computer system is capable of being obtained or used;
...
“computer program” means computer data representing instructions or statements that, when executed in a computer system, causes the computer system to perform a function;
...
“computer service” includes data processing and the storage or retrieval of computer data;
...
“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;

...
“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;
...
“function” includes logic, control, arithmetic, deletion, storage and retrieval and communication or telecommunication to, from or within a computer system;
...
“intercept” includes listen to or record a function of a computer system, or acquire the substance, meaning or purport thereof;
...
“traffic” means, in respect of a computer password, to sell, export from or import into Canada, distribute or deal with in any other way.
R.S., 1985, c. 27 (1st Supp.), s. 45; 1997, c. 18, s. 18; 2014, c. 31, s. 16.

– CCC

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.

Device

342.2
...
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).

1997, c. 18, s. 19; 2014, c. 31, s. 17.

– CCC

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
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

Offence(s)	Crown Election	Maximum Penalty
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	Indictable Election	10 years custody
s. 342.2	Indictable Election	5 years custody

Offences under s. 342.1 and 342.2 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

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. 342.1, 342.2	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.

Ranges

see also: Unauthorized Use of Computer (Sentencing Cases)

Ancillary Sentencing Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 342.1	If an offence under s. 342.1 is prosecuted by indictment, a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).
Forfeiture of Computer Equipment	s. 342.2	Discretionary forfeiture order under section 342.2(2), If convicted under section 342.2.

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.

History

1997 to 2014

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.

...
R.S., 1985, c. 27 (1st Supp.), s. 45; 1997, c. 18, s. 18.

– CCC

See Also

• Pre-Trial and Trial Motions Checklist