Canadian Criminal Code Amendments Set Out Protected Interception of Communications

Bill C-14, An Act to amend the Criminal Code and other Acts (the Amending Act), received Royal Assent on April 22, 2004. Among the amendments are exemptions added to the Criminal Code (the Code) and Financial Administration Act (FAA) relating to the servicing and security enhancement of computer systems. Currently, s 184(1) of the Code makes the wilful interception of a private communication "by means of any electro-magnetic, acoustic, mechanical, or other device" an indictable offence. Subsections 184(2)(a) to (d) of the Code set out a number of exceptions such as interceptions made by peace officers with judicial authorization, in urgent circumstances to prevent serious harm, or service providers or other authorized personnel for quality control purposes or to prevent unauthorized use or interference with frequencies or transmissions. Under the Amending Act, an additional exemption will be created under s 184(2)(e) authorizing computer systems managers to intercept a private communication "originating from, directed to or transmitting through" their system, To address privacy concerns, s 184(3) has been added to limit the use or retention of an intercepted private communication to situations where it is essential to identify, isolate, or prevent harm to the computer system or where the private communication is disclosed in accordance with the exemptions under s 193(2) of the Code. The amendments to the FAA are largely a consequence of the amendments to the Code noted above. Under the newly created s 161(1) of the FAA, public sector managers are given the authority to intercept private communications in accordance with s 184(2)(e) of the Code. Subsection 161(2) makes the "appropriate Minister" responsible for ensuring that "only data that is essential to identify, isolate or prevent harm to the computer system will be used or retained". Section 161(3) provides that the subsection does not prevent any other lawful authority from intercepting, using, retaining, accessing, or disclosing a private communication. Lastly, s 161(4) includes a definition of "computer system" which is identical to the one found in s 342.1(2) of the Code. To view Bill C-14, see: http://makeashorterlink.com/?T24E12448. Summary by: Colin Adams