Chapter 2: Canada’s Legal Framework for Lawful Access
Special Report on the Lawful Access to Communications by Security and Intelligence Organizations

Criminal Code

33. The RCMP investigates offences in Canada and abroad related to national security, transnational and serious organized crime, financial crime, and cybercrime. ^{Footnote 57} The RCMP relies on provisions in the Criminal Code to authorize its lawful access activities. All law enforcement in Canada can obtain a judicial authorization for the interception of private communications, more commonly known as a wiretap, by filing an application as set out in Part VI of the Criminal Code with the assistance of Crown counsel. ^{Footnote 58} Police may be authorized by a judge to intercept private communications without the consent or knowledge of the parties to the communication, provided that the application meets the criteria and complies with the safeguards outlined in the authorization. ^{Footnote 59}

34. It is important to note that Part VI of the Criminal Code applies to prospective interceptions of communications in real time, rather than retrospective searches of stored communications. As described by Professor Krishnamurthy,

This reflects the former technological reality whereby intercepting communications in real time, such as by conducting a wiretap, was a very different act than obtaining records of past communications, such as by searching a suspect’s home for incriminating letters. Part VI subjects real-time interceptions of communications to stringent safeguards on the theory that such interceptions are the most serious invasion of privacy imaginable by the state in the exercise of its criminal law enforcement power. ^{Footnote 60}

35. In light of the high threshold imposed for seeking a wiretap, law enforcement will generally seek other orders first to collect the information and evidence they need to meet that threshold. For example, they may first seek a transmission data recorder warrant, which permits the collection of information about communications (i.e., transmission data, sometimes informally referred to as metadata), but not the content of the communication itself. ^{Footnote 61}

36. Additionally, the complexity of some investigative tools and techniques may require law enforcement to obtain multiple authorizations involving several provisions of the Criminal Code to deploy them. For example, to deploy an ODIT could require several different authorizations, including a wiretap authorization, a transmission data recorder warrant, and a general warrant. ^{Footnote 62} Advances in communication technologies can also often result in law enforcement seeking additional judicial authorizations under the Criminal Code to deploy the investigative tool or technique in question. These could include an assistance order to compel a person or company to assist law enforcement in the execution of an authorization or warrant, ^{Footnote 63} or a preservation order to compel a person or company to keep electronic evidence until an appropriate warrant is obtained. ^{Footnote 64}