Criminal Law

• Author: George Takach
• Profession: Adjunct Professor
• Pages: 208-300

1 These dynamics are important, and are a unifying theme throughout this book.

For a discussion of these dynamics, see chapter 8, section A, “Computer Law:

Dynamics.”

A society dependent on computers, telecommunications, networks,

and information is extremely vulnerable to computer crime. Comput-

ers can be the subject of crime, as when they are stolen or accessed

without authorization. As well, computers and networks can be the

means by which other crimes are perpetrated. Computer crime

involves some form of unauthorized gain, destruction, manipulation,

or intrusion, or some form of illegal image or speech. In combatting

computer crime, authorities are squarely faced with the four dynamics

of computer law, namely, the rapid pace of technological change, the

elusive nature of information, and the blurring of private/public and

national/international.1These dynamics, together with the general

interpretative principle that criminal laws must be construed narrowly,

have resulted in the courts in Canada having an uneven track record of

convicting persons charged with computer and information-related

activities that cause wilful harm and damage to third parties. Never-

theless, and to a large degree because of certain of these cases that

resulted in acquittals, the Canadian government has revised the Crim-

inal Code on several occasions to give law enforcement agencies addi-

208

CRIMINAL LAW

chapter 3

tional assistance in fighting computer crime.2Today the Criminal Code

contains a number of different provisions that can be pressed into serv-

ice against persons who perpetrate computer-related crime. In other

cases, the applicability of the Criminal Code to certain harmful behav-

iour remains in question, requiring Parliament to be vigilant as to the

adequacy of the criminal law to deal with new computer-related threats

and risks, and to protect people, property, and governments in the

Information Age.

A. A TYPOLOGY OF HARMFUL CONDUCT

The actual nature and amount of computer crime are not precise. Com-

puter crime has been defined as “any illegal, unethical, or unauthorized

behaviour involving automatic data processing and/or transmission of

data.”3Canada’s Royal Canadian Mounted Police (RCMP) has used the

following working definition of computer crime: “any criminal activity

involving the copying of, use of, removal of, interference with, access to

or manipulation of computer systems, computer functions, data or

computer programs.”4These definitions cast the net of computer crime

broadly indeed. As for the quantum of computer crime, exact and reli-

able statistics are hard to come by because much malicious computer-

related activity is difficult to detect. Moreover, many organizations do

not report themselves as victims of computer crime since this could

Criminal Law 209

2 R.S.C. 1985, c. C-46. The Criminal Code is federal legislation, as the Constitution

Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 91(27), gives the federal government

power over criminal law. The Constitution Act, 1867 can be found in R.S.C.

1985, Appendix II, No. 5.

3 Ulrich Sieber, The International Emergence of Criminal Information Law (Koln:

Heymanns, 1992) at 5 [Criminal Information Law].

4 RCMP, Operational Policy 1992, cited in Donald K. Piragoff, “Computer Crimes

and Other Crimes against Information Technology in Canada,” in Information

Technology Crime: National Legislations and International Initiatives, ed. Ulrich

Sieber (Koln: Heymanns, 1994) at 86 [Information Technology Crime]. Ten years

later, the Mounties’ definition of computer crime is “any illegal act which

involves a computer system whether the computer is the object of a crime, an

instrument used to commit a crime or a repository of evidence related to a

crime”: Royal Canadian Mounted Police, “What is Computer and Telecommuni-

cation Crime,” last updated 2001-07-25, available at .

result in a loss of confidence among customers and investors.5At the

same time, some observers question whether the actual incidence of

computer crime is as great as is popularly thought. For example, a sur-

vey conducted by the Ontario Provincial Police in the early 1980s

reported that only 4 percent of respondents had been victimized by

computer crime.6Today, however, computer crime is a significant and

growing problem.7The statistics from a recent survey of 538 computer

security practitioners in the United States are indeed sobering: 85 per-

cent of respondents detected computer security breaches; 64 percent

acknowledged financial losses due to computer breaches; 35 percent

were willing and/or able to quantify financial losses, reporting

$377,828,700 in financial losses; 70 percent cited their Internet con-

nection as a frequent point of attack; 38 percent detected denial of serv-

ice attacks; and 94 percent detected computer viruses.8The Internet

raises particular problems from a computer crime perspective: the very

features that make it such a powerful, positive communication medi-

um (ease of use, ubiquity, relatively low cost), make it a prime theatre

on which criminals can act out a range of traditional and more novel

nefarious behaviours. It came as no surprise when Madam Justice Bev-

erley McLachlin predicted, upon her being sworn in as Chief Justice of

the Supreme Court of Canada, that Canada’s highest court will increas-

ingly be faced with technology-oriented issues, including computer

210 COmputer Law

5 See Patrick Brethour, “Newbridge Mum on Fraud Charge,” The Globe and Mail

(10 December 1996); and Joe Chidley, “Cracking the Net,” Maclean’s, 22 May

1995. The Criminal Code does not require a victim of computer crime to report

it. Thus, someone hit by a software “virus” can stay mute; compare this to cer-

tain types of public health legislation, such as Ontario’s Health Protection and

Promotion Act, R.S.O. 1990, c. H.7, which requires physicians and certain other

persons to report certain “virulent” diseases.

6 See Ulrich Sieber, The International Handbook on Computer Crime (New York:

Wiley & Sons, 1986) at 33. Interestingly, 46 percent of respondents to the OPP

survey thought computer crime to be an important concern, thereby leading

some to conclude that the general level of concern expressed vis-à-vis computer

crime is not borne out by real crime statistics. For a discussion of survey results

reporting much higher rates of computer crime, see council of Europe, Comput-

er-Related Crime (Strasbourg: Council of Europe, 1990).

7 For example, it is estimated that in 1995 losses in the United States from com-

puter viruses alone amounted to $1 billion: Gary H. Anthes, “Old, New Viruses

Swarm PC Users,” Computerworld, 6 May 1996 [“Old, New Viruses”].

8 Computer Security Institute, “Financial Losses Due to Internet Intrusions, Trade

Secret Theft and Other Cyber Crimes Soar,” Press Release (12 March 2001). This

press release gives highlights of the CSI’s sixth annual “Computer Crime and

Security Survey,” and is available at .