Protecting Canadians from Online Crime Act (S.C. 2014, c. 31)

Assented to 2014-12-09

Protecting Canadians from Online Crime Act

S.C. 2014, c. 31

Assented to 2014-12-09

An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act

SUMMARY

This enactment amends the Criminal Code to provide, most notably, for

  • (a) a new offence of non-consensual distribution of intimate images as well as complementary amendments to authorize the removal of such images from the Internet and the recovery of expenses incurred to obtain the removal of such images, the forfeiture of property used in the commission of the offence, a recognizance order to be issued to prevent the distribution of such images and the restriction of the use of a computer or the Internet by a convicted offender;

  • (b) the power to make preservation demands and orders to compel the preservation of electronic evidence;

  • (c) new production orders to compel the production of data relating to the transmission of communications and the location of transactions, individuals or things;

  • (d) a warrant that will extend the current investigative power for data associated with telephones to transmission data relating to all means of telecommunications;

  • (e) warrants that will enable the tracking of transactions, individuals and things and that are subject to legal thresholds appropriate to the interests at stake; and

  • (f) a streamlined process of obtaining warrants and orders related to an authorization to intercept private communications by ensuring that those warrants and orders can be issued by a judge who issues the authorization and by specifying that all documents relating to a request for a related warrant or order are automatically subject to the same rules respecting confidentiality as the request for authorization.

The enactment amends the Canada Evidence Act to ensure that the spouse is a competent and compellable witness for the prosecution with respect to the new offence of non-consensual distribution of intimate images.

It also amends the Competition Act to make applicable, for the purpose of enforcing certain provisions of that Act, the new provisions being added to the Criminal Code respecting demands and orders for the preservation of computer data and orders for the production of documents relating to the transmission of communications or financial data. It also modernizes the provisions of the Act relating to electronic evidence and provides for more effective enforcement in a technologically advanced environment.

Lastly, it amends the Mutual Legal Assistance in Criminal Matters Act to make some of the new investigative powers being added to the Criminal Code available to Canadian authorities executing incoming requests for assistance and to allow the Commissioner of Competition to execute search warrants under the Mutual Legal Assistance in Criminal Matters Act.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Marginal note:Short title

 This Act may be cited as the Protecting Canadians from Online Crime Act.

R.S., c. C-46CRIMINAL CODE

 Section 4 of the Criminal Code is amended by adding the following after subsection (7):

  • Marginal note: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.

 The Act is amended by adding the following after section 162:

Marginal note:Publication, etc., of an intimate image without consent
  • 162.1 (1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty

    • (a) of an indictable offence and liable to imprisonment for a term of not more than five years; or

    • (b) of an offence punishable on summary conviction.

  • Definition of “intimate image”

    (2) In this section, intimate image means a visual recording of a person made by any means including a photographic, film or video recording,

    • (a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;

    • (b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and

    • (c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.

  • Marginal note:Defence

    (3) No person shall be convicted of an offence under this section if the conduct that forms the subject-matter of the charge serves the public good and does not extend beyond what serves the public good.

  • Marginal note:Question of fact and law, motives

    (4) For the purposes of subsection (3),

    • (a) it is a question of law whether the conduct serves the public good and whether there is evidence that the conduct alleged goes beyond what serves the public good, but it is a question of fact whether the conduct does or does not extend beyond what serves the public good; and

    • (b) the motives of an accused are irrelevant.

Marginal note:Prohibition order
  • 162.2 (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection 162.1(1), the court that sentences or discharges the offender, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.

  • Marginal note:Duration of prohibition

    (2) The prohibition may be for any period that the court considers appropriate, including any period to which the offender is sentenced to imprisonment.

  • Marginal note:Court may vary order

    (3) A court that makes an order of prohibition or, if the court is for any reason unable to act, another court of equivalent jurisdiction in the same province may, on application of the offender or the prosecutor, require the offender to appear before it at any time and, after hearing the parties, that court may vary the conditions prescribed in the order if, in the opinion of the court, the variation is desirable because of changed circumstances after the conditions were prescribed.

  • Marginal note:Offence

    (4) Every person who is bound by an order of prohibition and who does not comply with the order is guilty of

    • (a) an indictable offence and is liable to imprisonment for a term of not more than two years; or

    • (b) an offence punishable on summary conviction.

Marginal note:1993, c. 46, s. 3(1); 1997, c. 18, s. 5; 2005, c. 32, ss. 8(1)(F) and 8(2)
  •  (1) Subsection 164(1) of the Act is replaced by the following:

    Marginal note:Warrant of seizure
    • 164. (1) A judge may issue a warrant authorizing seizure of copies of a recording, a publication, a representation or of written materials if the judge is satisfied by information on oath that there are reasonable grounds for believing that

      • (a) the recording, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is a voyeuristic recording;

      • (b) the recording, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is an intimate image;

      • (c) the publication, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is obscene or a crime comic, within the meaning of section 163; or

      • (d) the representation, written material or recording, copies of which are kept in premises within the jurisdiction of the court, is child pornography within the meaning of section 163.1.

  • Marginal note:2005, c. 32, s. 8(3)

    (2) Subsections 164(3) to (5) of the Act are replaced by the following:

    • Marginal note:Owner and maker may appear

      (3) The owner and the maker of the matter seized under subsection (1), and alleged to be obscene, a crime comic, child pornography, a voyeuristic recording or an intimate image, may appear and be represented in the proceedings in order to oppose the making of an order for the forfeiture of the matter.

    • Marginal note:Order of forfeiture

      (4) If the court is satisfied, on a balance of probabilities, that the publication, representation, written material or recording referred to in subsection (1) is obscene, a crime comic, child pornography, a voyeuristic recording or an intimate image, it may make an order declaring the matter forfeited to Her Majesty in right of the province in which the proceedings take place, for disposal as the Attorney General may direct.

    • Marginal note:Disposal of matter

      (5) If the court is not satisfied that the publication, representation, written material or recording referred to in subsection (1) is obscene, a crime comic, child pornography, a voyeuristic recording or an intimate image, it shall order that the matter be restored to the person from whom it was seized without delay after the time for final appeal has expired.

  • Marginal note:2005, c. 32, s. 8(4)

    (3) Subsection 164(7) of the Act is replaced by the following:

    • Marginal note:Consent

      (7) If an order is made under this section by a judge in a province with respect to one or more copies of a publication, a representation, written material or a recording, no proceedings shall be instituted or continued in that province under section 162, 162.1, 163 or 163.1 with respect to those or other copies of the same publication, representation, written material or recording without the consent of the Attorney General.

  • (4) Subsection 164(8) of the Act is amended by adding the following in alphabetical order:

    “intimate image”

    « image intime »

    “intimate image” has the same meaning as in subsection 162.1(2).

Marginal note:2005, c. 32, s. 9(1)
  •  (1) The portion of subsection 164.1(1) of the Act before paragraph (a) is replaced by the following:

    Marginal note:Warrant of seizure
    • 164.1 (1) If a judge is satisfied by information on oath that there are reasonable grounds to believe that there is material  —  namely child pornography within the meaning of section 163.1, a voyeuristic recording or an intimate image within the meaning of subsection 164(8) or computer data within the meaning of subsection 342.1(2) that makes child pornography, a voyeuristic recording or an intimate image available  —  that is stored on and made available through a computer system within the meaning of subsection 342.1(2) that is within the jurisdiction of the court, the judge may order the custodian of the computer system to

  • Marginal note:2005, c. 32, s. 9(2)

    (2) Subsection 164.1(5) of the Act is replaced by the following:

    • Marginal note:Order

      (5) If the court is satisfied, on a balance of probabilities, that the material is child pornography within the meaning of section 163.1, a voyeuristic recording or an intimate image within the meaning of subsection 164(8) or computer data within the meaning of subsection 342.1(2) that makes child pornography, the voyeuristic recording or the intimate image available, it may order the custodian of the computer system to delete the material.

  • Marginal note:2005, c. 32, s. 9(3)

    (3) Subsection 164.1(7) of the Act is replaced by the following:

    • Marginal note:Return of material

      (7) If the court is not satisfied that the material is child pornography within the meaning of section 163.1, a voyeuristic recording or intimate image within the meaning of subsection 164(8) or computer data within the meaning of subsection 342.1(2) that makes child pornography, the voyeuristic recording or the intimate image available, the court shall order that the electronic copy be returned to the custodian and terminate the order under paragraph (1)(b).

Marginal note:2012, c. 1, s. 18

 The portion of subsection 164.2(1) of the Act before paragraph (a) is replaced by the following:

Marginal note:Forfeiture after conviction
  • 164.2 (1) On application of the Attorney General, a court that convicts a person of an offence under section 162.1, 163.1, 172.1 or 172.2, in addition to any other punishment that it may impose, may order that anything — other than real property — be forfeited to Her Majesty and disposed of as the Attorney General directs if it is satisfied, on a balance of probabilities, that the thing

 
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