Lawful Access (2016): There, I fixed it for you.

In December 2013, I posted "Lawful Access: There, I fixed it for you.". I didn't think I'd need to link to it again so soon, but in light of the Government of Canada's recent Green Paper on national security, lawful access is back in the public policy spotlight. If you'd thought that the Spencer decision had put a bullet into the law enforcement and national security argument that "basic subscriber information" needs no protection and should be available wholesale the state, you're apparently wrong. The RCMP and the Canadian Association of Chiefs of Police have been working behind the scenes to try to circumvent the SCC's Spencer decision (See Once again, the RCMP calls for warrantless access to your online info. Once again, the RCMP is wrong.)

In my 2013 post, I'd suggested a fix for the apparent problem of police having difficulty in getting access to "basic subscriber information". It's now relevant again and I offer it for your consideration. I've made some small tweaks since 2013.

I'm happy to hear any input ...

Subscriber information production order

*(1) A justice or judge, including a designated judge under the Canadian Security Intelligence Act, may order a telecommunications service provider to produce subscriber information.

Production to peace officer

(2) The order shall require the subscriber information or information regarding multiple subscribers to be produced within the time, at the place and in the form specified and given

(a) to a peace officer named in the order; or

(b) to a public officer named in the order, who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament.

Conditions for issuance of order

(3) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oath in writing, that

(a) there are reasonable grounds to believe that an offense designated under this Section has been, is being or is about to be committed;

(b) there are reasonable grounds to believe that the subscriber information will afford evidence respecting the identity of the person or persons believed to be responsible for the commission of the offence, or the identity of the persons believed to be the victim or the intended victim of such offense;

(c) there are reasonable grounds to believe that the person who is subject to the order has possession or control of the documents or data; and

(d) the issuing of the order will not unduly infringe the relevant subscriber’s rights set out in the Charter of Rights and Freedoms, including freedom of expression, based on the totality of the circumstances.

Terms and conditions

(4) The order may contain any terms and conditions that the justice or judge considers advisable in the circumstances, including terms and conditions to protect a privileged communication between a lawyer and their client or, in the province of Quebec, between a lawyer or a notary and their client.

Power to revoke, renew or vary order

(5) The justice or judge who made the order, or a judge of the same territorial division, may revoke, renew or vary the order on an ex parte application made by the peace officer or public officer named in the order.

Notice

(6) Unless the justice or judge who made the order, or a judge of the same territorial division orders otherwise, aAny person whose information is obtained as a result of such order shall be notified of the order and the disclosure of his or her subscriber information within six months of the date of the order. An order to delay the giving of notice under this paragraph may be made by the justice or judge who made the order, or a judge of the same territorial division may be made shall only be applicable for a maximum of six months and shall only be made if such justice or judge is satisfied, based on information on oath in writing, that the giving of such notice will likely compromise an active investigation or prosecution of an offence under this or any other Act of Parliament.

Probative force of copies

(7) Every copy of a document produced under this section, on proof by affidavit that it is a true copy, is admissible in evidence in proceedings under this or any other Act of Parliament and has the same probative force as the original document would have if it had been proved in the ordinary way.

Return of copies

(8) Copies of documents produced under this section need not be returned.

Subscriber information

(9) For the purposes of this section, “subscriber information” means the name, address, telephone number and electronic mail address of any subscriber to any of the service provider’s telecommunications services and the Internet protocol address and local service provider identifier that are associated with the subscriber’s service and equipment.

Use and retention of subscriber information

(10) Unless otherwise ordered by the justice or judge who made the order, or a judge of the same territorial division,

(a) subscriber information obtained pursuant to an order under this Section shall only be used for the investigation and prosecution of the offense or offenses referred to in the information used to obtain the order; and

(b) if the person about whom the subscriber information relates has not been charged with an offense referred to in the information to obtain the order, subscriber information shall only be retained until six months following the date on which the relevant person is notified pursuant to paragraph (6) herein.

Designated offences

(11) For the purposes of this Section, a designated offense means

(a) any offence that may be prosecuted as an indictable offence under this or any other Act of Parliament, or

(b) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a).

Tele-production Orders

(12) Section 487.1 respecting telewarrants shall apply with respect to subscriber information production orders, mutatis mutandis, in the same manner as such section applies with respect to search warrants.

National effect

(13) A subscriber information production order issued under this Section shall be applicable with respect to the telecommunciations service provider in any territorial division of Canada without requirement of endorsement by a justice or judge in the territorial division where the telecommunications service provider is located.

Compensation

(14) The telecommunciations service provider named in a subscriber information production order shall be compensated for the production of subscriber information in the manner and in the amount prescribed. Nothing herein shall require a telecommunications service provider to collect or retain any subscriber information beyond that which is ordinarily collected or retained in the course of the telecommunciations service provider’s business.

Report to Parliament

(15) Each calendar year, the Minister shall lay before Parliament a report regarding the use of subscriber information production orders, which report shall include:

(a) the number of subscriber information production orders issued in total for the previous calendar year;

(b) the number of subscriber information production orders issued per designated offense for the previous calendar year;

(c) the number of subscriber information production orders issued per territorial division of Canada for the previous calendar year;

(d) the number of and nature of the charges, prosecutions and convictions respecting each use of subscriber information production orders, including information respecting cases where charges do not result; and

(d) any other information the Minister considers relevant regarding the use of subscriber information production orders.

Application for review of production order

(16) Section 487.0193 shall apply with respect to subscriber information production orders, mutatis mutandis, in the same manner as such section applies to the production orders referred to in that Section.