Chapter 4: Government Response — The Government’s Response to Lawful Access Challenges — 41st Parliament (2011 to 2015)
Special Report on the Lawful Access to Communications by Security and Intelligence Organizations
The Government’s Response to Lawful Access Challenges
41st Parliament (2011 to 2015)
137. Each of the government’s successive attempts to pass lawful access legislation drew from the previous failed efforts and included the same or similar provisions. Footnote 310 In February 2012, the government tabled Bill C-30, the Protecting Children from Internet Predators Act. Footnote 311 The bill would have created the Investigating and Preventing Criminal Electronic Communications Act, requiring CSPs to be intercept capable and able to decrypt encrypted communications. The bill also would have created specialized Criminal Code production orders for investigators to obtain certain electronic data that attracts a lower expectation of privacy, such as geolocation data. Footnote 312 The bill quickly attracted the same criticisms as the earlier proposed legislative attempts. In February 2013, the Minister of Justice publicly set the bill aside and noted that any future bill “‘to modernize the Criminal Code will not contain the measures contained in Bill C30.’” Footnote 313
138. In November 2013, the government tabled Bill C-13, the Protecting Canadians from Online Crime Act, which came into force in March 2015. It retained the least controversial parts of Bill C-30, specifically new preservation demands and orders, and specialized production orders. Footnote 314 The coming into force of the Act enabled Canada to ratify the Budapest Convention, which came into force for Canada on November 1, 2015. Footnote 315 With the passage of the Act, the government launched the Investigative Powers for the 21st Century initiative to support the implementation of the Act and Canada’s obligations under the Budapest Convention. Led by DoJ in collaboration with PPSC, the RCMP, and GAC, the purpose of the initiative was to inform Canadian prosecutors and foreign police agencies about the new powers under the Act, facilitate international cooperation under the Budapest Convention, and for the RCMP to expand its digital forensic capacity. Under this initiative, the government provided the four departments with $60.74 million over five years (2015-16 to 2019-20), and $12.25 million ongoing (from 2020-21). Footnote 316
139. In June 2014, the Supreme Court rendered its unanimous decision in R v Spencer, ruling there is a reasonable expectation of privacy in BSI when it is linked to an IP address. The Supreme Court’s decision gave the government two options: police could use existing Criminal Code powers or the government could table a new “reasonable law” for police to access BSI. Footnote 317 DoJ and its provincial and territorial counterparts undertook concerted efforts to understand the operational impact of Spencer and analyze legal and privacy issues, including post-2014 jurisprudence as the courts applied R v Spencer to various cases. Footnote 318 ***