Criminal Law

AuthorGeorge Takach
ProfessionAdjunct Professor
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:
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-
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.
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 .

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