Backgrounder

Criminal Law Amendments to Update and Clarify the Criminal Code and Related Statutes

Why is the Government of Canada introducing this legislation?

This package of amendments represents an ongoing effort by the Government of Canada to update, improve and clarify the criminal law.

The bill seeks to update the Criminal Code offence of setting traps in order to reflect the new and emerging threat that such devices pose, as their use by organized criminals continues to increase.

Amendments in the bill include:

• clarifying in the Criminal Code that the use of reasonable force is authorized to prevent a criminal activity onboard an aircraft in flight that could endanger the aircraft or any person or property on board, consistent with existing international law;
  
  
• rewording the section in the Criminal Code that deals with warrants to search for and seize weapons, ammunition and explosives to reflect concerns raised by the Ontario Court of Appeal in a recent decision ( R. v. Hurrell); and
  
  
• allowing the civil enforcement of all restitution orders (and not just when restitution has been ordered as a stand-alone order, as is currently the case); this amendment will make it easier for people to obtain restitution money that was ordered to be paid to them following an offender's conviction.
  
  
• allowing the use of information technology management practices, such as Intrusion Detection Systems (IDS), for the protection of computer networks and information systems from cyber-attacks and viruses.

Setting deadly traps:

Responding to concerns raised by groups including the International Association of Fire Fighters, the Government of Canada is creating a new offence targeting those who would set traps in a place used for a criminal purpose and intending to cause injury or death. The maximum penalty proposed is ten years imprisonment, increasing to 14 years if injury occurs and life if death occurs.

Currently, the offence of setting a trap in any place under section 247 of the Criminal Code carries a maximum sentence of five years imprisonment. New offences have been created to provide significant penalties to reflect the aggravated seriousness of the offence when traps cause injury or death or are set in place used for a criminal purpose.

Authorized use of force on aircraft:

Currently, Canadian law recognizes that anyone can use a reasonable amount of force to prevent someone from committing an indictable offence (a serious crime). The same law applies on board aircraft in flight in Canadian airspace.

The bill will amend the Criminal Code to explicitly recognize that everyone on board any aircraft in Canadian airspace is justified in using reasonable force when he or she believes on reasonable grounds that it is necessary to use force to prevent the commission of a criminal act that could endanger the safety of the aircraft or of someone on board. The bill will also clarify that this justification also applies on board Canadian-registered aircraft in flight outside Canadian airspace.

This amendment will ensure the full effect to the Tokyo Convention On Offences and Certain Other Acts Committed On Board Aircraft.

Weapons search and seizure warrant applications:

Section 117.04 of the Criminal Code sets out the procedure for a peace officer to apply for a warrant to search for and seize weapons, prohibited devices, ammunition, explosives or licences, authorizations or registration certificates for such items, based on public safety concerns (other provisions deal with obtaining a warrant where an offence has been committed). To obtain such a warrant, a peace officer must satisfy a Justice that there are reasonable grounds to believe that the person possesses these things and that it would not be desirable, in the interest of safety, to let the person continue to possess them.

In July 2002, the Ontario Court of Appeal, in the case of R. v. Hurrell, decided that the language of the section violated the Canadian Charter of Rights and Freedoms. The court approved of the law's purpose in preventing deaths or injuries, particularly relating to domestic violence, but found the warrant application section did not include sufficient protections for individual rights under the Charter and did not make it clear that the peace officer is required to have reasonable grounds to make the application for a warrant and that it be made under oath. Also, the section did not make it clear that the peace officer had to have reasonable grounds to believe that the things to be sought could be found at the place identified in the warrant application.

The amendment included in the bill will address these three points to ensure compliance with the Charter.

Civil enforcement of restitution orders:

Occasionally, offenders convicted of a crime will be ordered to make restitution to their victims. Often this involves an order to pay a certain amount of money as compensation for the wrong committed or the injury suffered. Currently, these orders can only be enforced by civil court action if the order is separate from the sentencing order. The amendment proposed will allow civil enforcement of all restitution orders, making it easier to collect money owing under an order.

Intrusion Detection Systems (IDS):

Intrusion detection is an essential part of information technology management intended to protect computers, networks and data and to ensure quality of service. A number of systems or products exist to detect attacks on computer systems by hackers, viruses, worms, etc., and to alert human operators. Some systems protect networks by identifying and intercepting suspicious electronic communications, including some that may be private communications. Those messages can be analyzed to determine if they contain a malicious program code, such as a computer virus, that could attack a computer system and the data it contains.

A virus or worm attack could wipe out important data and cripple vital networks, while intrusion by a hacker could result in the theft of private or classified information. The types of systems affected could range from personal computers linked to the Internet, to business networks containing confidential client records and financial data to government networks containing sensitive information vital to national security.

The amendments to the Criminal Code and the Financial Administration Act would allow information technology managers in government and the private sector to use practices, such as IDS technology, to protect their computer systems from electronic communications, such as viruses, that could harm them.

The Criminal Code amendment would create exceptions to the offences of intercepting a private communication and of disclosing its content to ensure quality control in the communications industry. A proposed amendment to the Financial Administration Act (section 161) will ensure that federal departments and agencies may take reasonable measures to manage and protect their computer systems, which may include the interception of private communications.

In order to protect the privacy of persons in Canada, limits would be imposed on the use and retention of the private communications obtained through the use of information technology management practices. The Treasury Board Secretariat will, through the promulgation of standards, ensure consistent application of IDS technology across the Government of Canada in compliance with the Privacy Act and the Canadian Charter of Rights and Freedoms. Use of information intercepted by private IDS systems will be controlled under the Criminal Code.

Technical and corrective amendments:

The bill includes a small number of amendments to correct inadvertent omissions and linguistic discrepancies in the Criminal Code, the Youth Criminal Justice Act, the Security of Information Act and the Canada Evidence Act.

The Department of Justice routinely recommends such minor amendments to maintain the quality and clarity of the legislation for which it is responsible and to ensure the efficiency and effectiveness of the criminal law.

Department of Justice Canada
April 2003