Possession of device to obtain use of telecommunication facility or service
327 (1) Every person who, without lawful excuse, makes, possesses, sells, offers for sale, imports, obtains for use, distributes or makes available a device that is designed or adapted primarily to use a telecommunication facility or obtain a telecommunication service without payment of a lawful charge, knowing that the device has been used or is intended to be used for that purpose, is
(a) guilty of an indictable offence and liable to imprisonment for a term of not more than two years; or
(b) guilty of an offence punishable on summary conviction.
Forfeiture
(2) If a person is convicted of an offence under subsection (1) or paragraph 326(1)(b), in addition to any punishment that is imposed, any device in relation to which the offence was committed or the possession of which constituted the offence may be ordered forfeited to Her Majesty and may be disposed of as the Attorney General directs.
Limitation
(3) No order for forfeiture is to be made in respect of telecommunication facilities or equipment by means of which an offence under subsection (1) is committed if they are owned by a person engaged in providing a telecommunication service to the public or form part of such a person’s telecommunication service or system and that person is not a party to the offence.
Definition of device
(4) In this section, device includes
(a) a component of a device; and
(b) a computer program within the meaning of subsection 342.1(2).
Annotations | French
- Section 327(1)
- Foreign or unauthorised in Canada is not a defence
- It is not a defence if the device used to obtain telecommunication was used to encrypt signals from a distributor not lawfully authorized to distribute in Canada. It is not a defence to state the device used to decode signals only decodes the signals not authorized to be distributed in Canada: R v Scullion (2002), 166 CCC (3d) 526 at para 26 (QCCA), leave to appeal to SCC refused, [2002] SCCA No 296); R v Fulop (1988), 46 CCC (3d) 427 (Ont CA) at 431, aff’d [1990] 3 SCR 695.
- Intended to be used is not limited to the accused
- “Intended to be used” is not just limited to the accused’s personal use. It is sufficient to show that the accused had knowledge that other persons would be using the device to obtain telecommunications services without payment. It is sufficient for the Crown to prove that the person in possession of the device knows that the purpose of the device is to obtain telecommunication services without payment: R v Fulop (1988), 46 CCC (3d) 427 (Ont CA) at 429, aff’d [1990] 3 SCR 695.
- Theft by person required to account
- 330 (1) Every one commits theft who, having received anything from any person on terms that require him to account for or pay it or the proceeds of it or a part of the proceeds to that person or another person, fraudulently fails to account for or pay it or the proceeds of it or the part of the proceeds of it accordingly.
- Effect of entry in account
- (2) Where subsection (1) otherwise applies, but one of the terms is that the thing received or the proceeds or part of the proceeds of it shall be an item in a debtor and creditor account between the person who receives the thing and the person to whom he is to account for or to pay it, and that the latter shall rely only on the liability of the other as his debtor in respect thereof, a proper entry in that account of the thing received or the proceeds or part of the proceeds of it, as the case may be, is a sufficient accounting therefor, and no fraudulent conversion of the thing or the proceeds or part of the proceeds of it thereby accounted for shall be deemed to have taken place.