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

Canada’s Approach to Intercept Capability

49. In the context of lawful access, the interception of private communications, such as phone calls and emails, often requires the cooperation of one or more CSPs. CSPs are entities that “offer telecommunications services or some combination of information and media services, content, entertainment, and application services over networks.” ^{Footnote 85} In order to execute a warrant from CSIS or the RCMP, some CSPs rely on tools built into their telecommunications system or network to intercept the communication or other data.

50. There is currently no legislative mechanism in Canada to compel CSPs to develop, deploy or maintain their systems in such a way as to remain intercept capable. This means that even where prior judicial authorization is obtained by law enforcement or national security officials to intercept the communications of a specific target, they may not be able to obtain these communications because a technological solution may not exist to intercept, collect, and transfer the communications or their associated data to the requesting agency. ^{Footnote 86}

51. There is one notable, if dated, exception. Under the Solicitor General’s Enforcement Standards for Lawful Interception of Telecommunications (SOLGEN standards), certain CSPs are required to ensure that their systems are intercept capable to obtain a licence under the Radiocommunication Act. Last updated in 1995, this standard only applies to radio frequencies for wireless voice telephony services, i.e., cellular voice services. ^{Footnote 87} It does not apply to landline telephones or digital communications technology such as email, social media and messaging platforms, satellite communications, or Wi-Fi. The SOLGEN standards are not law, and not all cellular providers fully comply with them. ^{Footnote 88}

52. Unlike Canada, all other Five Eyes and Group of Seven countries have legislation compelling CSPs to maintain intercept capable networks. In 2023, the RCMP conducted a comparative analysis of other Western democracies, surveying Australia, Belgium, Denmark, Finland, France, Germany, Ireland, the Netherlands, New Zealand, Norway, Spain, Sweden, Switzerland, the United Kingdom (U.K.), and the United States (U.S.). While each country has its own distinct framework, all have intercept capability legislation. ^{Footnote 89} Some countries have legislation that applies only to traditional communications services such as wireline and mobile telephony and Internet service providers, whereas others have legislation that applies to both traditional and modern services (e.g., internet service providers and overthe-top applications). Countries varied on the funding model for costs associated with the development and maintenance of intercept capability and operational fees, either using a model in which CSPs paid, the government paid, or a hybrid approach. ^{Footnote 90} Table 2.1 summarizes the positions of Five Eyes partners on key aspects of intercept capability. ^{Footnote 91}