Chapter 5: Assessment — Assessing the Government’s Response
Special Report on the Lawful Access to Communications by Security and Intelligence Organizations
Assessing the Government’s Response
188. The Committee notes that while successive governments have recognized these challenges, they have been largely ineffective at developing responses through policy solutions or legislative change. The government has not made any meaningful attempt to address lawful access since the 2016 green paper consultations in which Canadians clearly expressed concern about proposals to address lawful access challenges. The Committee would have found the government’s response to this result reasonable, if concerted policy work to develop solutions that respected both concerns about privacy and the need to equip security agencies with modern tools and resources had continued.
189. However, the Committee found that, instead of reassessing the way forward, the government has let significant policy initiatives continue to languish. First, the Supreme Court rendered its Spencer decision on BSI over ten years ago. The government has not brought any proposals forward to deal with the BSI issue. Second, no government has attempted to address the absence of lawful intercept capability legislation since 2012. Third, the government’s attempts to articulate a coherent policy on encryption have also demonstrated little progress. Finally, negotiations on a much needed Canada-U.S. Data Access Agreement have proceeded with little sense of urgency.
190. The cumulative effect of this approach to lawful access is that Canada now lags behind likeminded democracies who took strides over a decade ago to adapt their legal frameworks to fight national security threats in the digital age. In a global environment in which Canada will need to increasingly work with its international partners to address ideologically motivated violent extremism, serious organized crime, cybercrime, foreign interference, and other threats, this puts Canada at a disadvantage.
191. In the Committee’s view, this legislative and policy inertia fundamentally comes down to a lack of political will. Lawful access has not featured in a single mandate letter since the government adopted the practice of making them public, which leads the Committee to infer that the government is unconvinced by the significance and impact of Canada’s lawful access challenges. The Committee notes the complexity of the lawful access challenges, which cover the intersection of rapidly evolving technology, changing views on privacy, legal frameworks and jurisprudence, and distinct but interrelated policy initiatives. One aspect of lawful access necessarily touches upon another, such that several implications must be considered before deciding on a course of action. The Committee suspects that this complexity in and of itself has also contributed towards the years of inertia.
192. The Committee also believes that the current situation may reflect the government’s challenges in engaging effectively with Canadians who are concerned about their privacy.