Consent Wiretaps

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General Principles

Under 184.2, a person may intercept any private communication where one party consents to the interception.

Interception with consent
184.2 (1) A person may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication where either the originator of the private communication or the person intended by the originator to receive it has consented to the interception and an authorization has been obtained pursuant to subsection (3).
...
(3) An authorization may be given under this section if the judge to whom the application is made is satisfied that

(a) there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed;
(b) either the originator of the private communication or the person intended by the originator to receive it has consented to the interception; and
(c) there are reasonable grounds to believe that information concerning the offence referred to in paragraph (a) will be obtained through the interception sought.

...
1993, c. 40, s. 4.


CCC

A consent wiretap does not need to be in relation to an offence listed under s. 183. It does not need to be applied for by a designated wiretap agent.

History
This section was added to the Code in 1993 in response to the decision of R v Duarte 1990 CanLII 150 (SCC), [1990] 1 SCR 30, which held that there can be a violation of s.8 when an interception occurs with the consent of one of the parties.

Constitutionality
Section 184.2 does not violate s. 8 of the Charter for not requiring "investigative necessity" before authorizing a search.[1]

  1. R v Largie 2010 ONCA 548 (CanLII) leave to SCC denied
    R c Bordage, 2000 CanLII 6273 (QC CA) at para 36 to 40
    Doiron c. R., 2007 NBCA 41 (CanLII), at paras 43 to 45

Three or More Party Communications

Consent to interception
183.1 Where a private communication is originated by more than one person or is intended by the originator thereof to be received by more than one person, a consent to the interception thereof by any one of those persons is sufficient consent for the purposes of any provision of this Part.
1993, c. 40, s. 2.


Participant Surveillance

"Participant surveillance" refers to "electronic surveillance in which one of the parties to a conversation, usually an undercover police officer or a police informer, surreptitiously records it". [1]Any form of "participant surveillance" requires a Part VI wiretap warrant.[2]

  1. R v Duarte, 1990 CanLII 150 (SCC), [1990] 1 SCR 30
  2. Duarte ("surreptitious electronic surveillance ... constitutes an unreasonable search or seizure under s. 8 of the Charter")

"Cell Shot" Intercept

An investigative technique known as a "cell shot" is a surreptitious recording of a detainee's activities and conversations. These generally requires a Part VI wiretap authorization.[1]

  1. R v Horning, 2006 ABQB 669 (CanLII) at para 29

Procedure

The affiant must set out the following:

  1. he had reasonable grounds to believe an offence "has been or will be committed";
  2. the particulars of the offence;
  3. the identity of the persons whose private communications are to be intercepted;
  4. the "place" where the private communications are to be intercepted;
  5. terms and conditions of the intercepts that are "in the public interest";
  6. the period of the authorization up to 60 days.

The applicant can be any "peace officer" or "public officer" who enforces federal or provincial law. It does not require a designation as a wiretap agent.[1]

The authorizing court can be a "provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552".[2]

184.2.
...
Application for authorization
(2) An application for an authorization under this section shall be made by a peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, ex parte and in writing to a provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552, and shall be accompanied by an affidavit, which may be sworn on the information and belief of that peace officer or public officer or of any other peace officer or public officer, deposing to the following matters:

(a) that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed;
(b) the particulars of the offence;
(c) the name of the person who has consented to the interception;
(d) the period for which the authorization is requested; and
(e) in the case of an application for an authorization where an authorization has previously been granted under this section or section 186, the particulars of the authorization.

...
Content and limitation of authorization
(4) An authorization given under this section shall

(a) state the offence in respect of which private communications may be intercepted;
(b) state the type of private communication that may be intercepted;
(c) state the identity of the persons, if known, whose private communications are to be intercepted, generally describe the place at which private communications may be intercepted, if a general description of that place can be given, and generally describe the manner of interception that may be used;
(d) contain the terms and conditions that the judge considers advisable in the public interest; and
(e) be valid for the period, not exceeding sixty days, set out therein.

...
1993, c. 40, s. 4.


CCC

Other Warrants Granted

Interception with consent
184.2 (1) ...
Related warrant or order
(5) A judge who gives an authorization under this section may, at the same time, issue a warrant or make an order under any of sections 487, 487.01, 487.014 to 487.018, 487.02, 492.1 and 492.2 if the judge is of the opinion that the requested warrant or order is related to the execution of the authorization.
1993, c. 40, s. 4; 2014, c. 31, s. 8.


Application by Telewarrant

Application by means of telecommunication
184.3 (1) Notwithstanding section 184.2, an application for an authorization under subsection 184.2(2) may be made ex parte to a provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552, by telephone or other means of telecommunication, if it would be impracticable in the circumstances for the applicant to appear personally before a judge.
Application
(2) An application for an authorization made under this section shall be on oath and shall be accompanied by a statement that includes the matters referred to in paragraphs 184.2(2)(a) to (e) and that states the circumstances that make it impracticable for the applicant to appear personally before a judge.
Recording
(3) The judge shall record, in writing or otherwise, the application for an authorization made under this section and, on determination of the application, shall cause the writing or recording to be placed in the packet referred to in subsection 187(1) and sealed in that packet, and a recording sealed in a packet shall be treated as if it were a document for the purposes of section 187.
Oath
(4) For the purposes of subsection (2), an oath may be administered by telephone or other means of telecommunication.
Alternative to oath
(5) An applicant who uses a means of telecommunication that produces a writing may, instead of swearing an oath for the purposes of subsection (2), make a statement in writing stating that all matters contained in the application are true to the knowledge or belief of the applicant and such a statement shall be deemed to be a statement made under oath.
Authorization
(6) Where the judge to whom an application is made under this section is satisfied that the circumstances referred to in paragraphs 184.2(3)(a) to (c) exist and that the circumstances referred to in subsection (2) make it impracticable for the applicant to appear personally before a judge, the judge may, on such terms and conditions, if any, as are considered advisable, give an authorization by telephone or other means of telecommunication for a period of up to thirty-six hours.
Giving authorization
(7) Where a judge gives an authorization by telephone or other means of telecommunication, other than a means of telecommunication that produces a writing,

(a) the judge shall complete and sign the authorization in writing, noting on its face the time, date and place at which it is given;
(b) the applicant shall, on the direction of the judge, complete a facsimile of the authorization in writing, noting on its face the name of the judge who gave it and the time, date and place at which it was given; and
(c) the judge shall, as soon as is practicable after the authorization has been given, cause the authorization to be placed in the packet referred to in subsection 187(1) and sealed in that packet.

Giving authorization where telecommunication produces writing
(8) Where a judge gives an authorization by a means of telecommunication that produces a writing, the judge shall

(a) complete and sign the authorization in writing, noting on its face the time, date and place at which it is given;
(b) transmit the authorization by the means of telecommunication to the applicant, and the copy received by the applicant shall be deemed to be a facsimile referred to in paragraph (7)(b); and
(c) as soon as is practicable after the authorization has been given, cause the authorization to be placed in the packet referred to in subsection 187(1) and sealed in that packet.

1993, c. 40, s. 4.


CCC

  1. see s. 184.2(2) ("...authorization under this section shall be made by a peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament...")
  2. see s. 184.2(2)