Evaluation of the Investigative Powers for the 21st Century Initiative

Executive Summary

Introduction

This report presents the results of an evaluation of the Investigative Powers for the 21st Century Initiative (IP21C), a horizontal initiative led by the Department of Justice Canada (Justice) in collaboration with the Public Prosecution Service of Canada (PPSC), the Royal Canadian Mounted Police (RCMP) and Global Affairs Canada (GAC).

The IP21C Initiative has supported the implementation of new legal authorities arising from former Bill C-13, the Protecting Canadians from Online Crime Act (PCOCA) that came into force on March 10, 2015.

Program Description

It had long been recognized that new investigative powers were needed both to protect Canadians and investigate crimes that are facilitated by computer and communications technology, and to combat crimes that have a transnational dimension.

Since 2000, the Government of Canada (GOC)’s efforts through the Lawful Access Initiative (LAI) have concentrated on assessing the need for new and amended legislation. The IP21C Initiative stems from the portions of the LAI relating to amendments to the Criminal Code, which came into force 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 IP21C Initiative was supported by funding of $60.74 million over five years (2015-16 to 2019-20) and ongoing funds of $12.25 million annually.

Justice, PPSC, the RCMP and GAC are jointly responsible for managing the implementation of the IP21C Initiative, while each executes its specific activities in the criminal justice and international policy systems. 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 Canadians.

Five main activities have been implemented by the Initiative:

Findings

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

Relevance

The overall objective of the IP21C Initiative – to provide the means to implement the investigative powers added to the Criminal Code by the PCOCA and to meet Canada’s international obligations stemming from ratification of the Budapest Convention – continues to be relevant, as cybercrime and computer-assisted crimes are growing at a fast rate both in Canada and internationally, and criminals are increasingly exploiting evolving technologies.

The PCOCA provided legislative reforms that were necessary to permit specialized investigative powers under judicial authorization to obtain digital evidence not only for the high-tech computer crimes such as hacking, or organized crime, but also to deal with everyday offences when a criminal sends an email, uses their cell phone, or posts an image on a social networking site. These reforms have led to a regime of production orders that enable a judge to know precisely what type of data is being sought and to balance privacy and human rights. Additionally, the PCOCA introduced a new regime for rapidly preserving volatile data, using preservation demands and preservation orders.

The evaluation evidence indicates that there is an ongoing need for the key activities funded by the IP21C Initiative, including:

Moreover, the Budapest Convention is the main international instrument on cybercrime. It aims to help its state parties to harmonize their national laws, improve their investigative techniques, and increase cooperation. Ratification of the Convention allowed Canada to cooperate with other signatory countries in the investigation of cybercrime and enabled access to digital evidence that may be found in another country. Canada is viewed as playing a strong role internationally in supporting the Convention.

While the evidence from this evaluation indicates that the PCOCA addressed a significant need 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 cybercrime and other computer-assisted crime. Police and prosecutors highlighted in particular the challenges associated with obtaining timely access to basic subscriber information and encrypted data.

Performance

The findings of the evaluation regarding the performance of the IP21C Initiative in achieving its main intended outcomes are as follows:

Design

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

Recommendations

No recommendations are included as the IP21C Initiative was implemented as expected and there are no identified barriers to the achievement of expected results.