Criminal Code of Canada - section 342.2(1) - Possession of device to obtain computer service

section 342.2(1)

INTRODUCTION AND BRIEF DESCRIPTION

The possession, sale or distribution of an instrument or device primarily useful for committing an offence under Section 342.1 is an indictable offence punishable by up to two years imprisonment.

SECTION WORDING

342.2(1) Every person who, without lawful justification or excuse, makes, possesses, sells, offers for sale or distributes any instrument or device or any component thereof, the design of which renders it primarily useful for committing an offence under section 342.1, under circumstances that give rise to a reasonable inference that the instrument, device or component has been used or is or was intended to be used to commit an offence contrary to that section, (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) is guilty of an offence punishable on summary conviction.

EXPLANATION

Section 342.2(1) of the Criminal Code of Canada criminalizes the possession, sale, distribution, or offer for sale of any instrument or device, or any component thereof, that is primarily designed to be used to commit an offence under section 342.1. The offence under section 342.1 refers to breaking and entering into a place with intent to commit an indictable offence, such as theft, sexual assault, or arson. The purpose of section 342.2(1) is to target the production, distribution, and possession of tools that are specifically designed to aid in the commission of an offence. This section covers a wide range of devices and instruments that could be used in the commission of a breaking and entering offence, such as lock picking tools, crowbars, or other burglary tools. For an individual to be convicted under section 342.2(1), there must be no lawful justification or excuse for their possession or use of the instrument or device. The circumstances of the possession or distribution of the device must also give reasonable inference that it has been or will be used to commit an offence. If an individual is found guilty of an offence under section 342.2(1), they could face imprisonment for a term not exceeding two years, or a lesser penalty if the offence is punishable by summary conviction. In summary, section 342.2(1) of the Criminal Code of Canada serves as a deterrent for individuals who produce, distribute, or possess tools or devices that are designed to facilitate the commission of a breaking and entering offence, thus helping to reduce crime and maintain public safety.

COMMENTARY

Section 342.2(1) of the Criminal Code of Canada pertains to the creation, possession, sale, distribution, or offering for sale of any instrument or device which could primarily be used to commit an offense under section 342.1. The section outlines that it is an offense to possess these instruments or devices without a lawful justification or excuse and under circumstances that can create a reasonable inference that the instrument was intended to be used to commit an offense. These offenses are punishable by imprisonment, with a maximum sentence of two years for an indictable offense or a punishment that is commensurate with the crime for summary conviction. The purpose of this section is to prevent the use of devices and instruments that are specifically designed to commit offenses under section 342.1 of the Criminal Code, which primarily deals with breaking and entering. It is an offense in Canada to break and enter into a place with the intent to commit an indictable offense. The provision is meant to curtail the use of devices by individuals to enable a more efficient break and entry of a place or to bypass security measures that have been set up by an individual to protect their property. The section is significant in highlighting the need to address the availability of such devices and instruments to the public, as these can be purchased through various online and brick-and-mortar stores. The legislation is clear on the need for individuals who handle these devices to provide lawful justifications, which can include lawful employment, such as a locksmith. The goal is to restrict the access to these tools in the hands of criminals and delinquents and to ensure that the general public is not endangered in any way. The law also specifies that offenses committed under section 342.2(1) will be punished with fines, imprisonment or both, and that judges have the discretion to order forfeiture of the instrument or device in question. Punishment under summary conviction proceedings may result in a fine, imprisonment or both, with a maximum imprisonment term of six months. Section 342.2(1) is critical in ensuring that criminals and delinquents do not have access to tools and devices that enable them to break into private residences or places of business in a more efficient manner. The section's importance has been cemented by reported cases of individuals using devices to bypass security protocols in banks, hospitals, and other high-security installations, resulting in significant losses for businesses and institutions. The availability of devices that can aid individuals in breaking and entering threatens the security of not only individual citizens but also businesses and key installations. The existence of section 342.2(1) in Canada's Criminal Code is a significant measure in ensuring that the public is safeguarded from unlawful activities and that individuals using such tools are held accountable for their actions. In conclusion, section 342.2(1) of the Criminal Code of Canada serves as a critical deterrent to the use of devices that facilitate breaking and entering. The section emphasizes the need for lawful justification when handling such devices and instruments, as well as the need for restrictions on their availability to prevent any damage or loss to individuals, businesses, or institutions. Section 342.2(1) is a key provision in Canada's legal system in ensuring that the public is safeguarded from unlawful activities and that individuals using such tools are held accountable for their actions.

STRATEGY

Section 342.2(1) of the Criminal Code of Canada is a broadly worded provision that criminalizes the possession and distribution of certain instruments or devices that are primarily useful for committing offenses under section 342.1. This provision covers a wide range of tools and devices, including lock picks, crowbars, and other items that can be used to break into buildings or vehicles. When dealing with this provision, there are several strategic considerations that one should keep in mind. First, it is important to understand that the offense under section 342.2(1) is one of strict liability. This means that a defendant can be convicted even if they did not intend to use the device or instrument for an unlawful purpose. Therefore, it is essential to take a proactive approach to ensure that you are not in possession of any such device or instrument. One strategy that could be employed is to conduct a risk assessment to identify any potential risks associated with the possession or distribution of devices or instruments that are primarily useful for committing offenses under section 342.1. If such a risk is identified, steps should be taken to mitigate it by ensuring that no such devices or instruments are on the premises. Another strategy that could be employed is to implement strict inventory controls to ensure that no such devices or instruments are distributed or sold inadvertently. This could involve conducting regular inspections of inventory or implementing a tagging system to identify any devices or instruments that are covered under section 342.2(1). If, however, a person is charged with an offense under section 342.2(1), there are several strategic considerations that should be considered. One strategy that could be employed is to challenge the constitutionality of the provision. This could involve arguing that the provision is overly broad or violates the right to liberty or freedom of expression. Another strategy that could be employed is to argue that the device or instrument in question does not fall within the scope of the provision. For example, if the device or instrument is only tangentially related to an offense under section 342.1, it may be argued that it does not meet the threshold set out in section 342.2(1). In conclusion, section 342.2(1) of the Criminal Code of Canada is a provision that requires careful attention and proactive measures to ensure compliance. By implementing effective risk assessments and inventory controls, individuals and businesses can mitigate the risks associated with this provision. Additionally, if charged with an offense under section 342.2(1), challenging the constitutionality of the provision or arguing that the device or instrument in question does not fall within its scope can be effective strategies.