Evaluation of the Investigative Powers for the 21st Century Initiative

5. Conclusions and Recommendations

5.1. Conclusions

The conclusions of the horizontal evaluation of the IP21C Initiative with respect to the evaluation issues are summarized below.

5.1.1. Relevance

The overall objective of the IP21C Initiative – 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 stemming from ratification of the Budapest Convention – continues to be relevant, as cybercrime is growing at a fast rate both in Canada and internationally, and criminals are increasingly exploiting evolving technologies. The main activities supported by the IP21C Initiative should continue.

While the evaluation evidence indicates that the PCOCA responded to a commitment made by the GOC in 2013 to modernize the investigatory powers in the Criminal Code, Canada’s laws need to continually evolve so that law enforcement and prosecutors are equipped with the tools necessary to combat major crimes. Police and prosecutors highlighted in particular the challenges associated with obtaining access to BSI and encrypted data.

5.1.2. Performance

The target audiences of the IP21C Initiative, including law enforcement, prosecutors and telecommunications service providers are now very familiar with the legislative amendments made to the Criminal Code and other acts. IP21C officials devoted considerable effort to raising awareness and knowledge of the key elements of the PCOCA.

Relatively few legal and operational issues have arisen related to the new investigatory powers. While it was expected that numerous Charter challenges would arise from the new investigative powers, this has not yet proved to be the case. The resources provided to the federal partners by the IP21C Initiative have helped them to manage implementation of the investigatory powers in a variety of ways, ranging from supporting prosecutions that rely on these powers to providing internal and external stakeholders with legal and policy advice. The main legal issue raised by key informants is that the new transmission data recorder warrant provisions do not provide access to basic subscriber information. The investigatory powers have largely been consistently implemented across Canada.

The IP21C Initiative has contributed to improving Canada’s operational ability to combat cybercrime and other computer-assisted crimes. IP21C officials have collaborated extensively with each other and with external stakeholders to support implementation of the IP21C-related investigatory powers. The RCMP has implemented a dedicated triage function to process and track data preservation requests received from foreign law enforcement. It also has developed new tools to access, obtain and process digital evidence from devices seized as evidence, as well as tools used in a live intercept situation.

The IP21C Initiative has helped Canada to increase its level of cooperation internationally to obtain digital evidence to combat cybercrime and computer-assisted crime. Canada is viewed by international stakeholders as being in compliance with its requirements. Canada is viewed internationally as playing an important role in supporting the Budapest Convention, with considerable effort devoted to the drafting of the Second Additional Protocol. Justice IAG has improved the processing of MLA requests seeking digital evidence received from foreign law enforcement. The Initiative also contributed to improved coordination and consistency in Canada’s foreign policy approach on cybercrime and computer-assisted crime.

5.1.3. Design

The IP21C Initiative has been well coordinated. The IP21C business plan was thoroughly prepared and the Initiative has evolved as expected.

5.2. Recommendations

As noted, the IP21C Initiative stems from the portions of the LAI relating to the amendments to the Criminal Code and the other Acts by the PCOCA and to meet the international obligations stemming from ratification of the Budapest Convention. Consequently, the IP21C partners were already engaged in the broader operational areas within which the IP21C-specific activities are situated.

No recommendations are included as the Initiative has been implemented as expected, and there are no identified barriers to the achievement of expected results. While several issues were raised, such as access to BSI and encrypted data, they are beyond the scope of the Initiative or are matters before the courts.