Bill introduced to assist investigations in light of new technologies

March 23, 2011

Bill C-51, An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act (short title: Investigative Powers for the 21st Century Act) was re-introduced in the House of Commons on November 1st, 2010. As the short title of Bill C-51 implies, the bill aims to extend the current investigative powers of national law enforcement and security agencies for computer-related crimes to take into account the use of new communications technologies. While many of the proposed changes relate to the Criminal Code, they have an impact on the Competition Act and the investigative powers of the Commissioner of Competition.

Two other bills, Bill C-50, An Act to amend the Criminal Code (interception of private communications and related warrants and orders) and Bill C-52, An Act regulating telecommunications facilities to support investigations, were also introduced in October and November of last year. These three complimentary bills had previously been introduced under the former Liberal government in 2005, and under the Conservative government in 2009, but were killed by elections or prorogation.

Bill C-51 provides for new provisions of the Code relating to a “preservation” demand or order, to recognize the fact that information in electronic form can be easily and quickly destroyed or altered. A preservation demand or order would direct a person, such as a telecommunications service provider (TSP), to preserve “computer data” that is “in their possession or control” when they receive the demand or order. Such a demand or order would generally be in effect long enough to allow a law enforcement agency to obtain a search warrant or production order. The bill also provides for new specific orders in the Code for the production of transmission data (data that indicate the origin, destination, date, time, duration, type and volume of a telecommunication, but not the content of the telecommunication) and banking information to apply to certain investigations under the Act. As a result, the Commissioner will have at her disposal new investigative tools to obtain electronic evidence relating to deceptive marketing practices and restrictive trade practices under the Act.

Another change that would result from the adoption of Bill C-51 is the modernization of certain deceptive marketing practices offences under the Act. More specifically, the bill would replace the reference to “telephone” as the means of committing these offences with “any means of telecommunication” used for communicating orally, which would broaden the scope of application of the provisions relating to telemarketing and deceptive marketing practices of the Act.

With respect to proposed changes to the Mutual Legal Assistance in Criminal Matters Act (the MLA Act), which aims to promote cooperation among states by establishing a system for exchanging information and evidence, Bill C-51 would allow the Commissioner to execute search warrants issued under the MLA Act, and would provide that production orders described in the Code may be used by Canadian authorities who receive assistance requests from their international partners.

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