The struggle to identify shortcomings in the law also demonstrates why court oversight is needed. The RCMP apparently provided seven examples, but only two are partially viewable. The first involves a child pornography investigation in which the subject matter did not meet the definition of child pornography under the Criminal Code. Since the content did not qualify as child pornography, law enforcement could not obtain a warrant. If the content was not unlawful, why should law enforcement be able to obtain personal information without a warrant? This merely invites fishing expeditions or other forays into personal information without proper justification.
In addition to the documents that undermine the case for warrantless access to customer name and address information, the documents suggest that Toews is incorrect when he states that there will be no warrantless interception of Internet communications. Indeed, department officials point out that Section 184.4 of the Criminal Code already permits warrantless interception in exceptional circumstances:
A peace officer may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication where
(a) the peace officer believes on reasonable grounds that the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained under any other provision of this Part;
(b) the peace officer believes on reasonable grounds that such an interception is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property; and
(c) either the originator of the private communication or the person intended by the originator to receive it is the person who would perform the act that is likely to cause the harm or is the victim, or intended victim, of the harm.
Canadian courts have been divided on the constitutionality of the provision.
The lawful access bill is expected to be introduced on Tuesday