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).
Marginal note: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; (données informatiques)
computer password means any computer data by which a computer service or computer system is capable of being obtained or used; (mot de passe)
computer program means computer data representing instructions or statements that, when executed in a computer system, causes the computer system to perform a function; (programme d’ordinateur)
computer service includes data processing and the storage or retrieval of computer data; (service d’ordinateur)
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; (ordinateur)
data[Repealed, 2014, c. 31, s. 16]
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; (dispositif électromagnétique, acoustique, mécanique ou autre)
function includes logic, control, arithmetic, deletion, storage and retrieval and communication or telecommunication to, from or within a computer system; (fonction)
intercept includes listen to or record a function of a computer system, or acquire the substance, meaning or purport thereof; (intercepter)
traffic means, in respect of a computer password, to sell, export from or import into Canada, distribute or deal with in any other way. (trafic)
Annotations | French
- Section 342.1
- There are four elements that the Crown must prove in order to establish the actus reus of this offence:
- (i) The accused obtained a computer service;
- (ii) The accused's use of the computer service was prohibited;
- (iii) A reasonable person in the accused's circumstances would conclude that the accused's use of the computer service was dishonest; and
- (iv) The accused acted without colour of right: R v McNish, 2020 ABCA 249 at para 54; R c Parent, 2012 QCCA 1653 at para 37.
- The mens rea for this offence requires that the “use of the computer be done fraudulently: R v McNish, 2020 ABCA 249 at para 55. To act fraudulently for the purposes of this section means to use a computer in an intentional and unmistaken manner, “with the subjective knowledge that the use is unauthorized”: R c Parent, 2012 QCCA 1653 at para 50; R v McNish, 2020 ABCA 249 at para 58. Unauthorized use without more is insufficient to make out the offence. R c Parent, 2012 QCCA 1653 at para 50.