INTRODUCTION AND BRIEF DESCRIPTION
This section criminalizes the manufacture, possession, sale, or distribution of devices designed to obtain telecommunications service without paying.
SECTION WORDING
327(1) Every one who, without lawful excuse, the proof of which lies on him, manufactures, possesses, sells or offers for sale or distributes any instrument or device or any component thereof, the design of which renders it primarily useful for obtaining the use of any telecommunication facility or service, under circumstances that give rise to a reasonable inference that the device has been used or is or was intended to be used to obtain the use of any telecommunication facility or service without payment of a lawful charge therefor, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
EXPLANATION
Section 327(1) of the Criminal Code of Canada pertains to the illegal ownership or distribution of of devices or instruments designed to circumvent telecommunications charges. Examples of such devices or components thereof include phone/phreaking boxes, blue boxes, red boxes, and other electronic devices that can be used to access telecommunications services without paying for them. The offense is committed if a person is found to manufacture, possess, sell, offer for sale, or distribute such devices without lawful excuse. The accused person has the onus of proving that he has a lawful excuse for possessing or distributing such devices. The context surrounding the possession or distribution is also important. For example, if the accused was previously caught using a device to obtain the use of telecommunications facilities without payment, then possession of a similar device may suggest an intent to use it again. A key element of the offense is that the circumstances must give rise to a reasonable inference that the device has been used or is intended to be used for obtaining the use of a telecommunication facility or service without payment of lawful charges. This element allows law enforcement to take preemptive measures to confiscate such devices before they are used to commit fraudulent activity. The offense under Section 327(1) is an indictable offense, which means that it is a serious criminal offense that can result in imprisonment for up to two years. While this section of the Criminal Code targets the suppliers and distributors of these devices, similar charges may be laid against individuals who use them to access telecommunications services without payment. This section of the Criminal Code is an important tool in combating telecommunications fraud and preventing revenue loss for telecommunication companies.
COMMENTARY
Section 327(1) of the Criminal Code of Canada criminalizes the manufacture, possession, sale, or distribution of any instrument or device primarily useful for obtaining the use of a telecommunication facility without paying a lawful charge for it. The main objective of this section is to prevent individuals from engaging in illegal activities, such as unauthorized access to telecommunication facilities, without paying the required fees. It also seeks to protect the rights of service providers who depend on the payment of fees to remain in business and provide reliable services. The section explicitly states that the burden of proving a lawful excuse rests on the accused, which means that they have to show why they had a reasonable excuse for the device's possession or distribution. This burden reflects the seriousness of the offense and the importance of ensuring that individuals who engage in illegal activities are held accountable for their actions. Furthermore, the section ensures that individuals who engage in such activities under circumstances that give rise to a reasonable inference be held liable under the law. This aspect of the section recognizes the importance of deterring individuals who may be tempted to indulge in illegal activities such as unauthorized access to telecommunication facilities. In addition, section 327(1) emphasizes the importance of upholding the rule of law in society. By ensuring that individuals pay lawful charges for accessing telecommunication facilities, the section promotes respect for the law and helps to create a culture of accountability and responsibility. However, the section is also subject to certain criticisms. Some argue that it fails to take into account specific circumstances, such as situations where individuals are unable to pay the required fees for accessing telecommunication facilities. Additionally, the section does not provide a clear definition of what constitutes a device primarily useful for obtaining the use of a telecommunication facility, which can lead to confusion and potential misuse by the law enforcement agencies. In conclusion, section 327(1) of the Criminal Code of Canada is an important provision that seeks to prevent unauthorized access to telecommunication facilities and ensure that individuals pay the required fees for obtaining such access. While there may be some criticisms of the section, it remains a key aspect of ensuring that the rule of law is upheld in Canadian society.
STRATEGY
Section 327(1) of the Criminal Code of Canada criminalizes the manufacture, possession, sale, or distribution of any device or component thereof that is primarily designed for obtaining the use of any telecommunication facility or service without payment of a lawful charge. The offense is punishable by imprisonment for up to two years. When dealing with this section of the Criminal Code, there are several strategic considerations that one must take into account. One of the primary considerations is whether the accused has a lawful excuse for possessing or distributing the device. The burden of proof lies on the accused to establish that they have a lawful excuse for possessing or distributing the device. As such, a strong defense strategy would be to gather evidence that establishes a lawful excuse, such as the device being used for legitimate research or testing purposes. Additionally, it may be possible to argue that the accused was not aware of the device's intended or actual use and did not have the requisite knowledge or intent to commit the offense. Another consideration is the nature of the evidence against the accused. Often, the prosecution's case will rely on circumstantial evidence that suggests the accused intended to use the device to obtain telecommunication services without payment. As such, a strategic defense approach would be to attack the strength of the prosecution's evidence and create reasonable doubt as to the accused's intent. For example, the defense could argue that the accused was unaware of the device's capacity for illicit use or that they were not involved in the sale or distribution of the device. A further strategic consideration is the potential consequences of a conviction. A conviction under section 327(1) of the Criminal Code can result in significant consequences, including imprisonment and a criminal record. Therefore, it is critical to have a strong defense strategy that focuses on minimizing the potential consequences of a conviction. For instance, the defense could negotiate a plea bargain that results in reduced charges or a more lenient sentence. Overall, the key strategies when dealing with section 327(1) of the Criminal Code involve establishing a lawful excuse, attacking the strength of the prosecution's evidence, and minimizing the potential consequences of a conviction. With a strong defense strategy, an accused can increase their chances of securing a favorable outcome in their case.