Caveat – Most of the officers and Crown prosecutors we’ve worked with or know are deeply committed to apprehending those who exploit children, particularly in sextortion cases. Unfortunately, the legal framework surrounding investigations and evidence collection often presents significant challenges to these types of investigations. As with any profession, there are a few officers who may be hesitant to dedicate the time and effort required for in-depth investigations. However, the vast majority of officers, who are willing to go above and beyond, face enormous and frustrating investigative hurdles, as you will now read. This article isn’t about making excuses; instead, it’s meant to help parents, caregivers, and educators understand the uphill battle law enforcement faces when investigating these types of cases—challenges that the general public often isn’t aware of.
The investigation of sextortion cases in Canada is far more complex and time-consuming than the public might imagine, particularly when compared to the fast-paced, fictionalized portrayals of cybercrime-solving seen on TV shows like CSI that so many of us have watched.
In reality, sextortion investigations require a coordinated effort involving multiple legal, technical, and resource-related challenges. Investigations often take months or even years, especially when the offender operates across international borders or employs sophisticated digital tools to hide their identity. These investigations are hampered by numerous factors, including evolving legal standards for evidence collection, the need for international cooperation, difficulties in tracking digital fingerprints, and the ever-present issue of limited police resources.
One of the first and most significant challenges that Canadian police face when investigating sextortion cases is the legal framework governing how digital evidence is collected and presented in court. Once a sextortion case is reported, investigators must adhere to a strict investigative legal framework dictated by case law and the Canadian Charter of Rights and Freedoms, especially regarding privacy rights- yes, an offender has privacy rights under our Charter here in Canada.
In the past, law enforcement officers could often retrieve evidence directly from a victim’s phone or other digital devices with their consent. However, recent judicial decisions have shifted this practice, requiring officers to obtain a warrant before they can access and search the victim’s device for evidence. This change reflects the growing importance of digital privacy in the eyes of the courts, which in turn places a heavy burden on law enforcement investigations. Investigators must now meet stringent legal standards to secure production orders and search warrants, which adds time and complexity to the process. The need to balance privacy rights with effective policing means that cases can drag on longer than they might have in the recent past. (1)(2)(3)(4)
Note – These cases have sparked substantial debate within the legal community, with some arguing that these rulings apply in certain situations but not in others. However, it’s unlikely that the police or Crown would want to risk losing a significant case at trial, after investing significant amounts of time and financial resources, simply because they failed to obtain a production order or warrant. Therefore, the best practice is now to secure judicial authorization in all cases where digital data is needed, regardless of the device, the individual involved, or the circumstances.
Obtaining a search warrant is just the first step. Once digital evidence is collected, it must be carefully preserved and analyzed, and all actions must be in full compliance with the legal rules of evidence. This process can take weeks or even months, depending on the complexity of the case and the backlog of requests for digital forensic analysis that are needed on cellphones and computers, which many police agencies face due to a lack of resources.
After securing access to the victim’s device, the next major hurdle is identifying the offender, especially in cases where the sextortionist is unknown. This often requires law enforcement to work with technology companies and social media platforms to obtain critical data needed as evidence, such as user activity logs, IP addresses, and communications between the victim and offender. However, obtaining this information is not as simple as it might seem.
First, the investigative team typically needs to serve a production order or search warrant to these companies. If the data is stored outside of Canada – often the case with many social media platforms – officers are now required to apply for a Mutual Legal Assistance Treaty (MLAT) through the RCMP in Ottawa to seek assistance from foreign law enforcement agencies, such as the FBI or Homeland Security in the United States or other foreign countries. This bureaucratic process is slow and can take weeks, if not months, to obtain the necessary cooperation.
Even with the proper legal documentation, law enforcement faces further challenges, as tech companies may not always comply with Canadian warrants – remember, a Canadian court order has no legal weight outside of Canada, thus why an MLAT is required. Some platforms will cooperate with Canadian authorities, while others, due to differing international laws or their internal policies, may refuse to hand over the requested data.
Data retention policies also vary widely among platforms. By the time law enforcement has jumped through all the legal hoops to obtain a production order, warrant, or MLAT the data they need might already have been deleted. This is especially problematic for platforms like Snapchat or Telegram, which either auto-delete messages after a certain period of time or employ end-to-end encryption, making it nearly impossible for investigators to retrieve evidence, even with legal authorization.
One of the most daunting challenges in sextortion cases is identifying the suspect’s real-world location. Many sextortion schemes are run by organized crime groups operating internationally, which adds another layer of difficulty for Canadian police. These criminals often exploit technological tools like multiple Virtual Private Networks (VPNs) to disguise their true location, making it difficult for investigators to trace their digital fingerprint back to a physical address and the offender.
VPNs allow the offender to mask their IP address, routing their internet activity through multiple servers in different countries. This not only makes it harder to determine where the offender is located but also creates multiple layers of legal and technical barriers for law enforcement. Even if the police can identify the use of a VPN, tracking down the original IP address and the identity of the offender can be an incredibly time-consuming process that requires advanced technical skills, sophisticated tools, and the use of human investigative assets often outside of Canada. The global nature of these crimes means that Canadian police often need to collaborate with foreign law enforcement agencies, each of which has its own legal procedures, priorities, and timelines.
The costs associated with these kinds of investigations can also be prohibitive. Tracing suspects across international borders, using specialized investigative techniques to de-anonymize VPN users, and securing the necessary legal cooperation from other countries can cost hundreds of thousands of dollars. This is an enormous financial burden on police forces, especially those in smaller jurisdictions with limited cybercrime capabilities or very thin budgets.
Even when police manage to collect the necessary evidence from social media platforms or other digital sources, this evidence must now be presented in court. For digital evidence to be admissible, someone from the platform must often testify to its authenticity and explain its technical implications to the court. This step is crucial, as prosecutors rely on expert testimony from these platforms to ensure that the evidence from them is correctly understood and evaluated by the judge or jury.
However, securing witnesses and their testimony from these platforms is a hit-or-miss process. Some tech companies are willing to cooperate with law enforcement and provide representatives to testify in court here in Canada. Others, due to concerns about user privacy, company policies, or simply a lack of interest in cooperating with police, are reluctant to participate. Without this testimony, the evidence collected from them may be deemed inadmissible, and the case could fall apart as a result. If the social media platform is based outside of Canada, there is no legal process for Canadian law enforcement or the courts to legally require these companies to attend a Canadian court to give evidence. This inconsistency adds yet another layer of unpredictability to the investigative process, making it harder for law enforcement to bring perpetrators to justice.
A further challenge in sextortion cases – the disparity in training and resources available to police officers across Canada. While larger police departments may have specialized cybercrime units equipped to handle these types of investigations, many smaller departments do not. In those cases, the responsibility for investigating sextortion falls on general duty officers, who may not have the technical expertise needed to navigate the complexities of investigating a cybercrime as mentioned thus far.
The learning curve for officers untrained in digital forensics or cyber investigations is steep, and the lack of specialized knowledge can slow down the investigation significantly. Without proper training in how to handle digital evidence, write an information to obtain a production order or search warrant, understand encryption technologies, or work with tech companies, officers will have to learn as they go, which can lead to mistakes or delays that may compromise the investigation.
Moreover, the lack of police financial and human resources exacerbates these challenges. Even departments with specialized cybercrime units are often underfunded, understaffed, and overworked, meaning that many sextortion cases end up on a growing backlog given more pressing cases that require immediate police attention. As a result, investigations may be delayed for months or even years, leaving victims waiting for justice and allowing offenders to continue their activities unchecked.
Investigating sextortion cases in Canada is a multi-faceted and highly challenging endeavor that requires law enforcement to navigate a maze of legal, technical, and human resource-related obstacles. From the stringent privacy laws that govern the collection of digital evidence, to the difficulties of tracing anonymous criminals across international borders, these investigations are far from straightforward.
The cooperation of tech companies, the challenges posed by encryption and VPNs, and the need for specialized training all add to the complexity.
Canadian police, despite their best efforts, are often left battling against time, technology, and legal frameworks that limit their ability to swiftly bring offenders to justice. Without significant improvements in resources, training, international cooperation, and the introduction of new federal laws to help speed up the legal framework for evidence collection in these types of crimes, the investigation of sextortion cases will continue to be a slow, resource-intensive process that may not always result in the desired outcome for the survivors and their families – especially when it comes to a teen who took their life by suicide because of being sextorted!
Digital Food For Thought
The White Hatter
Facts Not Fear, Facts Not Emotions, Enlighten Not Frighten, Know Tech Not No Tech
References:
1/ R. v. Marakah 2017 SCC 59 https://canlii.ca/t/hp63v ,
2/ R. v. Bykovets, 2024 SCC 6 https://canlii.ca/t/k358f
3/ R. v. Reeves, 2018 SCC 56 https://canlii.ca/t/hwk3k
4/ R. v. Cole, 2012 SCC 53 https://canlii.ca/t/ft969
