Backgrounder : Investigative Powers for the 21st Century Act

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The Internet has changed the way crimes are committed – from distributing child pornography to enabling criminals to coordinate and plan a wide range of illegal activities. Many of today's crimes involve the use of mobile cell phones or computers to send messages through the Internet, making some crimes easier to commit and more difficult to detect.

Police are currently investigating crime in Canada with investigative powers that do not reflect the emergence of new technologies. Legislation must be modernized in order to keep pace with modern communications technology and give investigators the tools they need to perform complex investigations in today's high-tech world.

Unlike forensic evidence found at the scene of a crime, digital evidence is scattered across dozens of electronic devices and computer networks and often located in different cities all over the world. Moreover, the data often has a very short lifespan, making the need to obtain evidence in a timely manner crucial to the outcome of an investigation.

Based on the results of consultations that took place with stakeholders, including provincial and territorial partners, law enforcement officers, privacy advocates and industry, the Government is proposing amendments to the Criminal Code, the Mutual Legal Assistance in Criminal Matters Act (MLACMA) and the Competition Act. These amendments respond to the ever-evolving technological environment, while protecting the human rights of persons in Canada, including their right to a reasonable expectation of privacy.

Issues addressed by this proposed legislation include the following:

Obtaining transmission data

The proposed amendments would allow police to obtain “transmission data.”  Transmission data relates to the underlying means of telecommunication used by a suspect to communicate by telephone or Internet. It can provide information on the type, date, time, origin, destination or termination of a communication, but would not include the content of a private communication.

As is currently the case in the Criminal Code, a judicial order would be required before police could obtain transmission data. Two different types of orders would permit this – a warrant (when the suspect’s data is intercepted in real-time) or a production order (to obtain stored transmission data from the service providers involved). Judicial authorizations for this type of data may only be obtained when there are “reasonable grounds to suspect” that the data will assist in the investigation of a crime.  

Obtaining Transmission Data to Trace a Specified Communication

Criminals may route their Internet communications through many different service providers, and sometimes even through multiple jurisdictions, in order to make it more difficult to determine the origin of the communications. Law enforcement officers need to be able to trace a communication back to the suspect’s original service provider. 

The proposed legislation would allow police to obtain a limited amount of “transmission data” for the purposes of identifying all of the service providers involved in the transmission of emails or other communications. This would help trace cybercrime domestically, as well as enhance international cooperation.

Preservation Orders

The amendments would create a preservation order that would require a telecommunication service provider to safeguard and not delete its data related to a specific communication or a subscriber when police believe the data will assist in an investigation. A preservation order is a “quick-freeze” temporary order, and would only be in effect for as long as it takes law enforcement to return with a search warrant or production order to obtain the data.

This is not data retention. Contrary to what is the case in some countries, the amendments would not require custodians of data to collect and store data for a prescribed period of time for all subscribers, regardless of whether or not they are subject to an investigation. A preservation order would be restricted to the data that would assist in a specific investigation.

Tracking warrants

In light of new technologies, amendments would improve the existing tracking warrant’s privacy protections with respect to the tracking of the location of people, while continuing to allow for the tracking of objects, including vehicles. The warrant would allow police to remotely activate existing tracking devices that are found in certain types of technologies (cell phones and telematics devices in some cars, e.g. a GPS). Real-time tracking data could be obtained under this warrant, while historical tracking data could be obtained via a production order.

Possession of a computer virus for the purpose of mischief

The amendments would update section 342.2 of the Criminal Code in two ways: making it illegal to possess a “device” for the purposes of committing the offence of mischief and indicating that computer programs – such as viruses – are now to be considered as “devices.” Currently only the actual or attempted mischief created by the spread of a computer virus is punishable.

Modernizing the Mutual Legal Assistance in Criminal Matters Act and the Competition Act

The proposed amendments to the Mutual Legal Assistance in Criminal Matters Act would widen the scope of assistance that Canada could provide to its treaty partners in fighting serious crimes, including computer and computer-related crime, at an international level.

Amendments to the Competition Act would allow the Competition Bureau to better address significant technology-related challenges that affect its ability to obtain evidence, especially for the violations of deceptive marketing practices and false or misleading representation provisions.

International considerations

The global reach of cybercrime and the transnational nature of organized criminal activity in this area reveal that international cooperation is a necessity in many investigations. The proposed legislative amendments would also create the legislative framework necessary for Canada to ratify the Council of Europe's Convention on Cybercrime and the Additional Protocol to the Convention on Cybercrime, Concerning the Criminalisation of Acts of a Racist and Xenophobic Nature Committed through Computer Systems.

These important multilateral treaties, which were signed by Canada in November 2001 and July 2005 respectively, are the only instruments that provide for broad-based international cooperation for the investigation and prosecution of computer-related crimes. Increasing and strengthening the tools available will assist in obtaining evidence to advance criminal investigations and prosecutions. This reflects the recognition that effective and evolving international assistance mechanisms are vital in combating the ever-growing threat of international criminality.

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Department of Justice Canada
November 2010