The number one thing that I think needs to be in this legislation, which I do think has many positive attributes, is lawful access. My reasoning is very simple.
I understand the tension and the juxtaposition between privacy and security, but this was an investigative capacity we already enjoyed under part VI of the Criminal Code, and we enjoyed it with the highest level of judicial authorization. Under the Criminal Code, we had to illustrate investigative necessity, and then second, we had to acquire the judicial authorization to engage in the electronic intercept.
We are not asking for a new capacity. We're asking for the capacity that we have already enjoyed since the Criminal Code, and specifically part VI, was overhauled in 1974. The only difference is that the modes of communication of all people have altered and the modes of communication, be they social media applications or...do provide for anonymization and encryption. Criminal conspiracies are discussed in communication either in person or via a device. Therefore, you must have a person in your confidence, such as an undercover operator or a confidential informer, or you must be privy to the communication, which you can acquire via judicial authorization.
The encryption and the mechanisms of that communication do not permit us to acquire that critical intelligence or evidence to prevent, detect, deter or mitigate. I have to be clear on this. What we would ask for is the ability to utilize software, commonly known as on-device investigative techniques. We have the capacity technologically and investigatively to do so. What we do not have is the legislative environment to make it effective to be able to implement it and utilize it effectively. By that I mean in the legislation, specifically sections 37 and 38 of the Canada Evidence Act, being able to only disclose in a way that would allow us to utilize it effectively and practically so that the technique remains alive for us in future considerations.
We are not asking for any alteration of the very high bar that is set now to acquire this, because it is an invasion of privacy. If I could use an analogy, when a criminal locks his door, and we have reasonable grounds to believe...we use a ram to go through the door. When evidence is locked in a safe or behind a lock, we're judicially authorized to pick the lock. We're not prevented. Encryption is just that form of a lock, and it's no greater abrogation of privacy than we had in the 1980s to acquire...through probes or other forms of electronic intercept.