Evaluation of the Investigative Powers for the 21^st Century Initiative

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2. Program Profile

Evolving computer and communications technologies have changed the way Canadians communicate and live their lives. They may use multiple communication devices and a wide variety of tools such as email, instant messaging and various social media applications. While this evolution provides enormous benefits for Canadian society, criminals are using the same technologies for illicit purposes. Digital communications are now a fundamental tool for virtually all criminal activity, and digital information is sometimes more important than physical evidence or intelligence in investigating and prosecuting crimes.^{Footnote 1}

It has long been recognized that Canada’s law enforcement must be able to work as effectively in the digital world as they do in the physical. They must also have the capability to cooperate with their international partners who seek digital evidence from Canada to support their criminal investigations and prosecutions. The laws governing the collection of information and evidence needed to be updated to reflect the advancements of digital technology that began during the latter part of the twentieth century.

The Government of Canada’s (GOC) Lawful Access Initiative (LAI) provides a framework for the development of technical solutions and legislative options. Lawful access is an important and well-established technique used by law enforcement in the prevention and investigation of serious offences. It consists of the interception of communications and the search and seizure of information conducted under lawful authority. Since 2000, the GOC’s efforts through the LAI have concentrated on assessing the need for new and amended legislation. The Government’s approach to lawful access recognizes the need for effective measures that balance rights, privacy, safety, security and economic well-being of all Canadians. To realize their public safety mandate, law enforcement and national security agencies need to maintain their lawful access capabilities in a manner that continues to respect the Charter. In the 2001 Speech from the Throne^{Footnote 2}, the Government pledged to provide modern tools to deal with cybercrime and to update the existing legal framework in order to help law enforcement and national security agencies address the challenges posed by advanced communications and information technologies.^{Footnote 3}

The IP21C Initiative stems from the portions of the LAI relating to amendments to the Criminal Code, which came into force in March 2015 with the enactment of the PCOCA. This Act introduced specialized investigative powers under judicial authorization to obtain digital evidence. It amended the Criminal Code, the Mutual Legal Assistance in Criminal Matters Act (MLACMA), the Canada Evidence Act and the Competition Act which:

The main purpose of the IP21C Initiative is to provide the means to implement the amendments made to the Criminal Code and the other Acts by the PCOCA and to meet Canada’s international obligations, including those stemming from the ratification of the Budapest Convention. The PCOCA also introduced sanctions for Telecommunications Service Providers (TSPs) that do not comply with production demands and orders. The Initiative’s overall goal is to help ensure that the GOC achieves its commitments to protect Canadians from cybercrime and to provide a solid legal framework with respect to all crimes that involve digital evidence – in a manner consistent with the Charter.

Justice, PPSC, the RCMP and GAC are jointly responsible for managing its implementation, while each executes its specific activities in the criminal justice and international policy systems. The logic model for the Initiative, which illustrates the relationship between the planned activities and its expected results, can be found in Appendix A. The Initiative consists of five main activities as follows:

• Legal analysis, policy development and coordination on domestic and international issues – Includes legal and policy advice, litigation support and prosecution services required to steward implementation of the legislative provisions related to investigative powers in the PCOCA, as well as to meet Canada’s international obligations stemming from ratification of the Budapest Convention.
• Awareness and training – Includes development of awareness and training materials to ensure that the legislative reforms enacted by the PCOCA are implemented in a consistent manner. The primary audiences for training are the law enforcement community and prosecutors. Efforts were also directed at raising awareness of the PCOCA provisions among Canada’s international partners.
• Technical research and tools to support criminal investigations – Involves the development of new technical tools, techniques and solutions for warranted, real time interception of transmission data and analysis of seized data, including international requests related to the Budapest Convention.
• Administration of a data preservation scheme – Involves developing a dedicated triage function to administer a new data preservation scheme, in accordance with the legal provisions in the PCOCA, and to respond to international requests for assistance.
• International cooperation – Involves advancing international cooperation on cybercrime and ensuring that Canada’s interests related to cybercrime and other computer-assisted crimes are reflected in Canada’s broader foreign policy.

The primary target populations for the IP21C Initiative are police and prosecutors. The intent is to provide them with more effective means to investigate and prosecute cybercrime and computer-assisted crime, while respecting the privacy and freedoms of persons in Canada. A description of the roles and responsibilities of each partner, as well as additional information regarding the IP21C Initiative, are included in Appendix A.

The IP21C Initiative received funding in the amount of $60.74 million over five years (2015-16 to 2019-20) and ongoing funds of $12.25 million annually. Table 1 presents an overview by department of the funding, consisting of Vote 1 transfers for operating expenditures and an allocation for accommodation (13%). Given the nature of the work, the regular course of duties of most incumbents’ positions includes work on cybercrime and computer-assisted crime as well as other related files, such as Lawful Access and Cyber Security. As such, expenditure data is not available because the resources are not always tracked separately. Based on information provided by IP21C officials, the majority of planned full-time equivalent positions have been staffed. Furthermore, as outlined throughout the findings, all of the planned activities have been implemented.

Source: Program planning documents

The number of full-time equivalents (FTEs) allocated to each department, by year are presented below in Table 2.

Source: Program planning documents

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