Summary of Submissions to the Lawful Access Consultation

Chapter 1: Introduction

A. Background

Interception of communications and search and seizure of information have proved to be effective law enforcement tools for police and national security agencies throughout the developed world. The same is true in Canada, where these activities are carried out mainly by police forces and CSIS1 under legal authority provided in the Criminal Code and the Canadian Security Intelligence Service Act. In cases where lawful interception evidence was presented to the courts in 2000, over 90% resulted in conviction of the accused2.

Lawful interception used to be relatively straightforward when most of the world's telecommunications consisted of voice conversations which were carried over wireline networks operated by a small number of large telephone companies. Much of Canada's legislation dealing with lawful access3 was introduced during this era. The arrival of telecommunications industry deregulation, the Internet, cellphones, wireless e-mail, high speed fiber-optic networks and VoIP4 has changed the picture considerably. Law enforcement agencies5 find that these more advanced services present technical and legal challenges to conventional lawful access methods and that the provisions of existing legislation are inadequate to sustain effective interception capability across the network. Meanwhile, criminal elements are using communications facilities that cannot be readily intercepted by Canadian law enforcement and national security agencies, even though the agencies have lawful authority to do so.

The need to update Canada's lawful access legislation is also being driven by international obligations in the struggle against global crime. Canada has signed the Council of Europe's Convention on Cybercrime which is designed to help equip signatory states with legal tools to assist in the investigation and prosecution of computer crime, including Internet-based crime and crime involving electronic evidence. The Convention also calls for increased international cooperation in tackling cybercrime and for increased commonality in the legislation available in each country to prosecute it. Before Canada can ratify the Convention, the Criminal Code will need modification to include provision for production orders, preservation orders and offences relating to computer viruses and similar devices.

As part of the process to update Canada's lawful access legislation, the Department of Justice, the Portfolio of the Solicitor General6 and Industry Canada reviewed a variety of options to address the difficulties presented to lawful access by modern communications technologies. A formal consultation process was then launched with industry, civil society groups7, law enforcement, privacy and information commissioners and the general public to seek their views on the issues involved.

A paper entitled the Lawful Access Consultation Document was released in August 2002 to provide a basis for the consultation and to encourage input on a range of proposals geared to modernize Canada's lawful access legislative framework. This paper is available online at the Department of Justice website located at http://canada.justice.gc.ca/eng/cons/la-al/index.html.

"The public policy objectives of the process are to maintain lawful access capabilities for law enforcement and national security agencies in the face of new technologies and to preserve and protect the privacy and other rights and freedoms of all people in Canada".

Lawful Access Consultation Document8

B. The Nature of This Report

This report provides a summary of the written submissions from law enforcement, companies, organizations and the public in response to the proposals presented in the consultation document. The response has been substantial and wide-ranging in content. It has provided a wealth of useful suggestions on how the proposals in the consultation document could be improved, expanded or discarded. There were responses expressing sincere concern, some making detailed legal arguments, while others were notable for their robust and candid remarks.

Practically all submissions contained observations that deserve a place in this report. Unfortunately, it is only possible to include a representative sample of what people said. This task has been made easier, however, by the consistency of views expressed by respondents in each group on a number of key issues.

The report consists of an introduction which outlines the reason for the lawful access consultation and describes the consultation process. An overview of the responses is provided for those who want a quick appreciation of the opinions put forward. This consists of ten observations from each group of participants - law enforcement, industry, privacy and information commissioners, civil society groups and the general public, selected on the basis of the frequency with which they were expressed by respondents.

A more detailed account of the comments received from each of these groups follows, broadly arranged under the same headings as those in the consultation document. In the event that there were no comments relating to a given topic by a particular group, that heading is not included.

C. The Consultation Process

As mentioned previously, Canadians were given the opportunity to consider lawful access issues and options for change based on the consultation document. The consultation period began in August 2002 with an initial closing date for submissions of November 15, 2002. This date was subsequently extended until December 16, 2002 in response to written requests from several interested parties.

In addition, the consultation process included a series of more than 20 meetings between key stakeholders and the government departments involved9. These allowed participants to obtain a closer understanding of the government's objectives before preparing their formal responses and to seek clarification on issues important to their areas of interest. Participants included law enforcement agencies, industry associations and companies, privacy and civil liberties organizations, the Privacy Commissioner of Canada and provincial governments. The general public was encouraged to respond to the consultation document via e-mail and regular post.

D. Response From Canadians

Law enforcement's contribution focused on a comprehensive paper submitted by the Canadian Association of Chiefs of Police (CACP) which was supported by written communications from 55 police forces, including numerous RCMP detachments from across Canada. A small number of police forces provided additional comments based on their regional experience.

Industry contributed 19 responses from companies involved in the telecommunications business and from related business associations, while five of Canada's privacy and information commissioners provided their views.

A total of 14 civil society groups delivered submissions that concentrated on privacy and other human rights issues. Two of the organizations are based in the US and were able to offer views based on their experience with similar legislation passed by Congress in recent years.

Responses were received from 219 individuals - almost all Canadians10. Most arrived by e-mail and ranged from adamant opposition to the proposals to warm support for the consultation process. Ontario contributed about 50% of these submissions, BC and Alberta 38% and Quebec 7%. Approximately 2% were from women.

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