Full Text:Volume 3B

Wiretaps

This page was last substantively updated or reviewed January 2023. (Rev. # 79444)

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• < Wiretaps

General Principles

Wiretaps are governed by Part VI of the Criminal Code.

There are four categories of wiretap:

• a general wiretap authorized under s. 185 and 186.
• a wiretap with consent under s. 184.2
• an emergency wiretap under s. 184.1, 184.4 and 188
• video intercepts s. 487.01

The emergency wiretap (s. 184.1), exceptional circumstances wiretaps (s. 184.4), and video intercepts (s. 487.01) do not require full judicial authorization.

A wilful interception of "a private communication" without authorization is an indictable offence under s. 184 with a maximum penalty of 5 years. This offence does not include situations where one of the parties consents (s.184(2)).

An interception of a private communication under a Part VI authorization is a search and seizure under s. 8 of the Charter.

The right to full answer and defence permits the accused to examine an edited version of the materials available to the authorizing judge to support the wiretap authorization.

Modern electronic surveillance has been singled out as a particularly powerful form of privacy intrusion. But unregulated, it would destroy any sort of privacy and would threaten society.

The Crown and police have a positive obligation not to disseminate irrelevant private communications revealed within a wiretap.

History

The modern legislation protecting against the interception of private communications arose from the 1969 Ouimet report which resulted in the Protection of Privacy Act.

Purpose

Part VI of the Code regulates the "power of the state to record communications that their originator expects will not be intercepted". It avoids the "danger inherent in allowing the state, in its unfettered discretion, to record and transmit our words."

These provisions aim to "strike a balance between the protection of privacy and the availability of effective law enforcement techniques".

Electronic surveillance has the potential to "annihilate" any expectation of privacy in our communications. Society should not expose us to permanent electronic surveillance.

Surveillance is one of the "the greatest leveler[s] of human privacy ever known".

This provision has nothing to do with protecting persons from the risk that the recipient of the communication will divulge anything.

"Authorization"

Definitions

183 In this Part [Pt. VI – Invasion of Privacy (ss. 183 to 196.1)],
"authorization" means an authorization to intercept a private communication given under subsection 184.‍2(3) [one-party consent wiretap – judge must be satisfied], section 186 [authorization of wiretap] or subsection 188(2) [emergency wiretaps – granting authorization]; (autorisation) ...
R.S., 1985, c. C-46, s. 183; R.S., 1985, c. 27 (1st Supp.), ss. 7, 23, c. 1 (2nd Supp.), s. 213, c. 1 (4th Supp.), s. 13, c. 29 (4th Supp.), s. 17, c. 42 (4th Supp.), s. 1; 1991, c. 28, s. 12; 1992, c. 27, s. 90; 1993, c. 7, s. 5, c. 25, s. 94, c. 40, s. 1, c. 46, s. 4; 1995, c. 39, s. 140; 1996, c. 19, s. 66; 1997, c. 18, s. 7, c. 23, s. 3; 1998, c. 34, s. 8; 1999, c. 2, s. 47, c. 5, s. 4; 2000, c. 24, s. 43; 2001, c. 32, s. 4, c. 41, ss. 5, 31, 133; 2002, c. 22, s. 409; 2004, c. 15, s. 108; 2005, c. 32, s. 10, c. 43, s. 1; 2008, c. 6, s. 15; 2009, c. 2, s. 442, c. 22, s. 4, c. 28, s. 3; 2010, c. 3, s. 1, c. 14, s. 2; 2012, c. 1, s. 24; 2013, c. 8, s. 2, c. 9, s. 14, c. 13, s. 7; 2014, c. 17, s. 2, c. 25, s. 11, c. 31, s. 7, c. 32, s. 59; 2015, c. 20, s. 19; 2017, c. 7, s. 56; 2018, c. 12, s. 114, c. 16, s. 210, c. 26, s. 23, c. 29, s. 15; 2019, c. 13, s. 150; 2019, c. 16, s. 122; 2019, c. 25, s. 63.1; 2020, c. 1, s. 36; 2022, c. 17, s. 5; 2023, c. 14, s. 2.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Interception of Private Communications

"Private Communication"

Section 183 defines "private communication":

183 In this Part [Pt. VI – Invasion of Privacy (ss. 183 to 196.1)],
...
"private communication" means any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it; (communication privée)
...
R.S., 1985, c. C-46, s. 183; R.S., 1985, c. 27 (1st Supp.), ss. 7, 23, c. 1 (2nd Supp.), s. 213, c. 1 (4th Supp.), s. 13, c. 29 (4th Supp.), s. 17, c. 42 (4th Supp.), s. 1; 1991, c. 28, s. 12; 1992, c. 27, s. 90; 1993, c. 7, s. 5, c. 25, s. 94, c. 40, s. 1, c. 46, s. 4; 1995, c. 39, s. 140; 1996, c. 19, s. 66; 1997, c. 18, s. 7, c. 23, s. 3; 1998, c. 34, s. 8; 1999, c. 2, s. 47, c. 5, s. 4; 2000, c. 24, s. 43; 2001, c. 32, s. 4, c. 41, ss. 5, 31, 133; 2002, c. 22, s. 409; 2004, c. 15, s. 108; 2005, c. 32, s. 10, c. 43, s. 1; 2008, c. 6, s. 15; 2009, c. 2, s. 442, c. 22, s. 4, c. 28, s. 3; 2010, c. 3, s. 1, c. 14, s. 2; 2012, c. 1, s. 24; 2013, c. 8, s. 2, c. 9, s. 14, c. 13, s. 7; 2014, c. 17, s. 2, c. 25, s. 11, c. 31, s. 7, c. 32, s. 59; 2015, c. 20, s. 19; 2017, c. 7, s. 56; 2018, c. 12, s. 114, c. 16, s. 210, c. 26, s. 23, c. 29, s. 15; 2019, c. 13, s. 150; 2019, c. 16, s. 122; 2019, c. 25, s. 63.1; 2020, c. 1, s. 36; 2022, c. 17, s. 5; 2023, c. 14, s. 2.

– CCC (CanLII), (DOJ)

---

"Private"

A communication is private where the originator has a reasonable expectation that the communication would "not be intercepted by any person other than the person intended by the originator to receive it". The intention of who is to receive the communication includes those who the originator had knowledge would receive it but may not desire them to receive it.

Where it is reasonable to expect that the communication may be listened to or recorded, then it is not a private communication.

Communication requires some exchange of information between persons and not simply all information capturable by the interception. Consequently, sounds not intended to convey information does not constitute a communication.

"Communications"

According to s. 183, a "communication" can be either "oral communication" or "telecommunication".

The following has been found not to be a "private communication":

• Electronic signals captured by a digital number recorder (DNR)
• communication of a paging device.
• a prayer to God as God does not meet the legal definition of a person.
• a cassette sent through the mail
• prayers to God

"originator"

The "originator" refers to the person whose "remarks which the Crown seeks to adduce in evidence" and are protected under Part VI of the Code.

"Telecommunications"

Section 35 of the Interpretation Act defines "telecommunications" as: "means the emission, transmission or reception of signs, signals, writing, images, sounds or intelligence of any nature by any wire, cable, radio, optical or other electromagnetic system, or by any similar technical system"

This definition was found to include technology such as Dialed number recorders.

This term is also used in the offence of Child Luring (Offence), Agree or Arrange a Sexual Offence Against Child (Offence), and Telecommunication Offences (Offence).

Warrants Apply to Many Types of Communication

One application for authorization sufficient

184.6 For greater certainty, an application for an authorization under this Part [Pt. VI – Invasion of Privacy (ss. 183 to 196.1)] may be made with respect to both private communications and radio-based telephone communications at the same time.
1993, c. 40, s. 4.

– CCC (CanLII), (DOJ)

---

"Interception"

"Interception" means to "listen to, record or acquire a communication or acquire the substance, meaning or purport thereof;" (s. 183).

Identity of Intended Recipient

A communication that is directed to law enforcement under false assumption of identity is not usually an "intercept" where it is not "participant surveillance".

An online undercover police officer who impersonates a young person and communicates with the accused is not intercepting as there is no "surreptitious" recording of the conversation and no "interception" as between the accused and third party.

Telephone communications between the accused and the police who answers the phone at a drug house and assumes the identity of the homeowner are not covered by Part VI.

"Intercept" vs "Disclose"

The scheme of Part VI distinguishes between "interception" and "use or retention" of that communication, which is conceptually "different and distinct".

Timing of Capture

There is the suggestion that there does not need to be a direct temporal connection between the message seizure and the transmission of the message.

However, text messages saved within the network of a service provider can be otained by a production order as it is not an "intercept". It will generally be required where the message has not yet come into existence or have not yet been received by the recipient.

Devices Used to Intercept

The interception must be done by way of an "electromagnetic, acoustic, mechanical or other device" (s.183). Consequently, simply to use one's human senses without technological aids does not invoke Part VI.

Definitions

183 In this Part,
...
"electro-magnetic, acoustic, mechanical or other device" means any device or apparatus that is used or is capable of being used to intercept a private communication, but does not include a hearing aid used to correct subnormal hearing of the user to not better than normal hearing; (dispositif électromagnétique, acoustique, mécanique ou autre)
...
R.S., 1985, c. C-46, s. 183; R.S., 1985, c. 27 (1st Supp.), ss. 7, 23, c. 1 (2nd Supp.), s. 213, c. 1 (4th Supp.), s. 13, c. 29 (4th Supp.), s. 17, c. 42 (4th Supp.), s. 1; 1991, c. 28, s. 12; 1992, c. 27, s. 90; 1993, c. 7, s. 5, c. 25, s. 94, c. 40, s. 1, c. 46, s. 4; 1995, c. 39, s. 140; 1996, c. 19, s. 66; 1997, c. 18, s. 7, c. 23, s. 3; 1998, c. 34, s. 8; 1999, c. 2, s. 47, c. 5, s. 4; 2000, c. 24, s. 43; 2001, c. 32, s. 4, c. 41, ss. 5, 31, 133; 2002, c. 22, s. 409; 2004, c. 15, s. 108; 2005, c. 32, s. 10, c. 43, s. 1; 2008, c. 6, s. 15; 2009, c. 2, s. 442, c. 22, s. 4, c. 28, s. 3; 2010, c. 3, s. 1, c. 14, s. 2; 2012, c. 1, s. 24; 2013, c. 8, s. 2, c. 9, s. 14, c. 13, s. 7; 2014, c. 17, s. 2, c. 25, s. 11, c. 31, s. 7, c. 32, s. 59; 2015, c. 20, s. 19; 2017, c. 7, s. 56; 2018, c. 12, s. 114, c. 16, s. 210, c. 26, s. 23, c. 29, s. 15; 2019, c. 13, s. 150; 2019, c. 16, s. 122; 2019, c. 25, s. 63.1; 2020, c. 1, s. 36; 2022, c. 17, s. 5; 2023, c. 14, s. 2.

– CCC (CanLII), (DOJ)

---

"Offence"

Within the provisions of the wiretap sections of the code, "offence" refers to a specific closed-list of offences. Those offences are listed within s. 2. It will include any conspiracies, attempts or counselling to commit the offence, or any accessories after the fact.

• See List of Designated Wiretap Eligible Offences

Misc Wiretap Terms

Definitions

183 In this Part [Pt. VI – Invasion of Privacy (ss. 183 to 196.1)],
...
"police officer" means any officer, constable or other person employed for the preservation and maintenance of the public peace; (policier)
...
"public switched telephone network" means a telecommunication facility the primary purpose of which is to provide a land line-based telephone service to the public for compensation; (réseau téléphonique public commuté)
"radio-based telephone communication" means any radiocommunication within the meaning of the Radiocommunication Act that is made over apparatus that is used primarily for connection to a public switched telephone network; (communication radiotéléphonique)
"sell" includes offer for sale, expose for sale, have in possession for sale or distribute or advertise for sale; (vendre)
"solicitor" means, in the Province of Quebec, an advocate or a notary and, in any other province, a barrister or solicitor. (avocat)
R.S., 1985, c. C-46, s. 183; R.S., 1985, c. 27 (1st Supp.), ss. 7, 23, c. 1 (2nd Supp.), s. 213, c. 1 (4th Supp.), s. 13, c. 29 (4th Supp.), s. 17, c. 42 (4th Supp.), s. 1; 1991, c. 28, s. 12; 1992, c. 27, s. 90; 1993, c. 7, s. 5, c. 25, s. 94, c. 40, s. 1, c. 46, s. 4; 1995, c. 39, s. 140; 1996, c. 19, s. 66; 1997, c. 18, s. 7, c. 23, s. 3; 1998, c. 34, s. 8; 1999, c. 2, s. 47, c. 5, s. 4; 2000, c. 24, s. 43; 2001, c. 32, s. 4, c. 41, ss. 5, 31, 133; 2002, c. 22, s. 409; 2004, c. 15, s. 108; 2005, c. 32, s. 10, c. 43, s. 1; 2008, c. 6, s. 15; 2009, c. 2, s. 442, c. 22, s. 4, c. 28, s. 3; 2010, c. 3, s. 1, c. 14, s. 2; 2012, c. 1, s. 24; 2013, c. 8, s. 2, c. 9, s. 14, c. 13, s. 7; 2014, c. 17, s. 2, c. 25, s. 11, c. 31, s. 7, c. 32, s. 59; 2015, c. 20, s. 19; 2017, c. 7, s. 56; 2018, c. 12, s. 114, c. 16, s. 210, c. 26, s. 23, c. 29, s. 15; 2019, c. 13, s. 150; 2019, c. 16, s. 122; 2019, c. 25, s. 63.1; 2020, c. 1, s. 36; 2022, c. 17, s. 5; 2023, c. 14, s. 2.

– CCC (CanLII), (DOJ)

---

Interception to prevent bodily harm

184.1
[omitted (1), (2) and (3)]

Definition of agent of the state

(4) For the purposes of this section, agent of the state means

(a) a peace officer; and

(b) a person acting under the authority of, or in cooperation with, a peace officer.

1993, c. 40, s. 4.

– CCC (CanLII), (DOJ)

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Topics

• Intercept of Private Communications (Offence)
• Third Party Wiretaps (s. 185 and 186)
• Consent Wiretaps
• Warrantless Wiretaps
• Admitting Wiretap Evidence
• Sealing and Unsealing Judicial Authorizations
• Execution of Wiretap
• Annual Wiretap Reports

Consent Wiretaps

This page was last substantively updated or reviewed January 2023. (Rev. # 79444)

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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) [one-party consent wiretap – judge must be satisfied].
[omitted (2)]
(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.

[omitted (4) and (5))]
1993, c. 40, s. 4.

– CCC (CanLII), (DOJ)

---

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, per La Forest J, 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.

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 [Pt. VI – Invasion of Privacy (ss. 183 to 196.1)].
1993, c. 40, s. 2.

– CCC (CanLII), (DOJ)

---

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." Any form of "participant surveillance" requires a Part VI wiretap warrant.

Online undercover work does not generally constitute a form of "participant surveillance."

"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.

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.

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."

184.2
[omitted (1)]

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 [definitions - judges], 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 [authorization of wiretap], the particulars of the authorization.

[omitted (3)]

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.

[omitted (5)]
1993, c. 40, s. 4.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Notice Requirements

There are no requirements for notice to the subject to a consent wiretap, unlike Third-party wiretaps. This feature of the provision does not violate the Charter.

Other Warrants Granted

Interception with consent

184.2
[omitted (1), (2), (3) and (4)]

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 [territorial search warrants], 487.01 [general warrants], 487.014 to 487.018 [production orders], 487.02 [assistance order], 492.1 [tracking warrants] and 492.2 [warrant for transmission data recorder] 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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Application by Telewarrant

Application — telecommunication producing writing

184.‍3 (1) A person who is permitted to make one of the following applications may submit their application by a means of telecommunication that produces a writing:

(a) an application for an authorization under subsection 184.‍2(2) [one-party consent wiretap – content of application], 185(1) [requirements for a 186 wiretap], 186(5.‍2) or 188(1) [emergency wiretaps – process];

(b) an application for an extension under subsection 185(2) [requirements for a 186 wiretap – power to extend notice period], 196(2) [suspension while extension application pending] or 196.‍1(2) [suspension while extension application pending];

(c) an application to renew an authorization under subsection 186(6) [authorization of wiretap – renewal].

Sealing

(2) A judge who receives an application submitted by a means of telecommunication that produces a writing shall, immediately on the determination of the application, cause it to be placed and sealed in the packet referred to in subsection 187(1) [manner in which application to be kept secret].

Application — telecommunication not producing writing

(3) Despite anything in section 184.‍2 [one-party consent wiretap] or 188 [emergency wiretaps], a person who is permitted to make an application for an authorization under subsection 184.‍2(2) or 188(1) may submit their application by a means of telecommunication that does not produce a writing if it would be impracticable in the circumstances to submit the application by a means of telecommunication that produces a writing.

Statement of circumstances

(4) An application submitted by a means of telecommunication that does not produce a writing shall include a statement of the circumstances that make it impracticable to submit the application by a means of telecommunication that produces a writing.

Oath

(5) Any oath required in connection with an application submitted by a means of telecommunication that does not produce a writing may be administered by a means of telecommunication.

Recording and sealing

(6) A judge who receives an application submitted by a means of telecommunication that does not produce a writing shall record the application verbatim, in writing or otherwise, and shall, immediately on the determination of the application, cause the writing or recording to be placed and sealed in the packet referred to in subsection 187(1) [manner in which application to be kept secret], and a recording sealed in a packet shall be treated as if it were a document for the purposes of section 187 [provisions re sealing wiretap records].

Limitation

(7) If an application is submitted by a means of telecommunication that does not produce a writing, the judge shall not give the authorization unless he or she is satisfied that the application discloses reasonable grounds for dispensing with its submission by a means of telecommunication that produces a writing.

Giving authorization, etc.

(8) A judge who gives the authorization, extension or renewal may do so by a means of telecommunication, in which case

(a) the judge shall complete and sign the document in question, noting on its face the time and date;

(b) if the means of telecommunication produces a writing, the judge shall transmit a copy of the document to the applicant by that means;

(c) if the means of telecommunication does not produce a writing, the applicant shall, as directed by the judge, transcribe the document, noting on its face the name of the judge as well as the time and date; and

(d) the judge shall, immediately after the authorization, extension or renewal is given, cause the document to be placed and sealed in the packet referred to in subsection 187(1) [manner in which application to be kept secret].

1993, c. 40, s. 4; 2022, c. 17, s. 6.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Old Version Prior to 2023

Application by means of telecommunication

184.3 (1) Notwithstanding section 184.2 [one-party consent wiretap], an application for an authorization under subsection 184.2(2) [one-party consent wiretap – content of application] 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 [definitions - judges], 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) [one-party consent wiretap – content of application – all requirements] 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) [manner in which application to be kept secret] 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 [provisions re sealing wiretap records].

Oath

(4) For the purposes of subsection (2) [one-party consent wiretap by telewarrant – manner of application], 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) [one-party consent wiretap by telewarrant – manner of application], 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) [one-party consent wiretap – enumerated grounds] exist and that the circumstances referred to in subsection (2) [one-party consent wiretap by telewarrant – manner of application] 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) [manner in which application to be kept secret] 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) [one-party consent wiretap by telewarrant – content of authorization]; 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) [manner in which application to be kept secret] and sealed in that packet.

1993, c. 40, s. 4.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Third Party Wiretaps

This page was last substantively updated or reviewed January 2023. (Rev. # 79444)

• < Search and Seizure
• < Warrant Searches
• < Wiretaps

General Principles

A wiretap can only be authorized when the justice is "provided with accurate and candid information".

An officer seeking an ex parte authorization must give "full, fair, accurate, and frank disclosure of material facts" sufficient for the judge to make "judicial assessment as to whether the facts meet the standard required for the order to issue".

This includes revealing facts known that "tend to disprove the existence of either reasonable and probable grounds or investigative necessity".

An affidavit that has not been signed by the person taking sworn statement will not necessarily invalidate the application.

Designated Agent

Section 185 requires that only a Crown designated by the Attorney General as a wiretap agent may make the application for a 185/186, 188, or video wiretap.

A designated agent is not needed for a consent intercept under s. 184.2.

Application

Application for authorization

185 (1) An application for an authorization to be given under section 186 [authorization of wiretap] shall be made ex parte and in writing to a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 [definitions - judges] and shall be signed by the Attorney General of the province in which the application is made or the Minister of Public Safety and Emergency Preparedness or an agent specially designated in writing for the purposes of this section by

(a) the Minister personally or the Deputy Minister of Public Safety and Emergency Preparedness personally, if the offence under investigation is one in respect of which proceedings, if any, may be instituted at the instance of the Government of Canada and conducted by or on behalf of the Attorney General of Canada, or

(b) the Attorney General of a province personally or the Deputy Attorney General of a province personally, in any other case,

and shall be accompanied by an affidavit, which may be sworn on the information and belief of a peace officer or public officer deposing to the following matters:

(c) the facts relied on to justify the belief that an authorization should be given together with particulars of the offence,

(d) the type of private communication proposed to be intercepted,

(e) the names, addresses and occupations, if known, of all persons, the interception of whose private communications there are reasonable grounds to believe may assist the investigation of the offence, a general description of the nature and location of the place, if known, at which private communications are proposed to be intercepted and a general description of the manner of interception proposed to be used,

(f) the number of instances, if any, on which an application has been made under this section in relation to the offence and a person named in the affidavit pursuant to paragraph (e) and on which the application was withdrawn or no authorization was given, the date on which each application was made and the name of the judge to whom each application was made,

(g) the period for which the authorization is requested, and

(h) whether other investigative procedures have been tried and have failed or why it appears they are unlikely to succeed or that the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

[omitted (1.1), (2), (3) and (4)]
R.S., 1985, c. C-46, s. 185; 1993, c. 40, s. 5; 1997, c. 18, s. 8, c. 23, s. 4; 2001, c. 32, s. 5, c. 41, ss. 6, 133; 2005, c. 10, ss. 22, 34; 2014, c. 17, s. 3; 2022, c. 17, s. 7.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Judge to be satisfied

186 (1) An authorization under this section may be given if the judge to whom the application is made is satisfied

(a) that it would be in the best interests of the administration of justice to do so; and

(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

[omitted (1.1), (2) and (3)]

Content and limitation of authorization

(4) An authorization 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 such terms and conditions as the judge considers advisable in the public interest; and

(e) be valid for the period, not exceeding sixty days, set out therein.

Persons designated

(5) The Minister of Public Safety and Emergency Preparedness or the Attorney General, as the case may be, may designate a person or persons who may intercept private communications under authorizations.

Installation and removal of device

(5.1) For greater certainty, an authorization that permits interception by means of an electro-magnetic, acoustic, mechanical or other device includes the authority to install, maintain or remove the device covertly.

Removal after expiry of authorization

(5.2) On an ex parte application, in writing, supported by affidavit, the judge who gave an authorization referred to in subsection (5.1) [authorization of wiretap – installation and removal of devices] or any other judge having jurisdiction to give such an authorization may give a further authorization for the covert removal of the electro-magnetic, acoustic, mechanical or other device after the expiry of the original authorization

(a) under any terms or conditions that the judge considers advisable in the public interest; and

(b) during any specified period of not more than sixty days.

[omitted (6), (7) and (8)]
R.S., 1985, c. C-46, s. 186; 1993, c. 40, s. 6; 1997, c. 23, s. 5; 1999, c. 5, s. 5; 2001, c. 32, s. 6, c. 41, ss. 6.1, 133; 2005, c. 10, ss. 23, 34; 2014, c. 17, s. 4, c. 31, s. 9.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Before a superior court justice may grant an authorization under s. 186(1) requires that they be satisfied there be (1) "probable cause" and (2) "investigative necessity".

The authorizing judge may issue other warrants or orders at the same time where they are "related to the execution of the authorization".

The wording of s. 186(1) has the implied requirements of requiring "reasonable and probable grounds to believe that an offence has been, or is being, committed and that the authorization sought will afford evidence of that offence”. This requirement is lower than a standard of a prima facie case or proof on balance that an offence has been committed.

Lawyer Exception

186
[omitted (1), (1.1) and (1.2)]

Where authorization not to be given

(2) No authorization may be given to intercept a private communication at the office or residence of a solicitor, or at any other place ordinarily used by a solicitor and by other solicitors for the purpose of consultation with clients, unless the judge to whom the application is made is satisfied that there are reasonable grounds to believe that the solicitor, any other solicitor practising with him, any person employed by him or any other such solicitor or a member of the solicitor’s household has been or is about to become a party to an offence.
[omitted (3), (4), (5), (5.1), (5.2), (6), (7) and (8)]
R.S., 1985, c. C-46, s. 186; 1993, c. 40, s. 6; 1997, c. 23, s. 5; 1999, c. 5, s. 5; 2001, c. 32, s. 6, c. 41, ss. 6.1, 133; 2005, c. 10, ss. 23, 34; 2014, c. 17, s. 4, c. 31, s. 9.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Places that are "ordinarily used" by lawyers concerns places where "lawyers may be when they ordinarily consult with clients", which would not include telephones on the jail ranges.

The interception is not "at" the restricted place where the wiretap is intercepting the cellphone calls of the accused.

Grounds for Application

Wiretaps are investigative tools. All that is needed is a reasonable belief to grant the authorization. The fact that the belief turns out to be false is not relevant to the application.

Before a Judge can grant the wiretap warrant, he must be satisfied that the applicant has "reasonable and probable grounds to believe that a specific offence has been, is being, or is about to be committed." The police must also "have reasonable and probable grounds to think that the target of the authorization will in fact be at a particular place, or be communicating in a particular manner" that will give evidence towards to investigation.

A fishing expedition is not a proper basis to authorize the wiretap.

Where defence counsel has demonstrated sufficient basis, the court can order the affiant to be subject to cross-examination on the affidavit authorizing the warrant.

Best Interests of the Administration of Justice or Reasonable and Probable Grounds

Section 186(1)(a) requires that applicant to establish that the wiretap is in the "best interests of the administration of justice". This element requires "that the judge must be satisfied that there is reasonable ground to believe that communications concerning the particular offence will be obtained through the interception sought". That is to say, the requirement of "reasonable and probable grounds" have been read into s. 186(1)(a).

The "probable cause" must relate to belief that:

1. a "specified crime has been or is being committed" and
2. the interception "will afford evidence of the specified crime"

The "will afford" requirement should be understood as relating to evidence that "may never exist" or that the wiretap may never reveal anything of importance. By the nature of the application it requires speculation.

Prospective Offences

Notably this does not permit belief of future offences. However, it is reasonable to rely on the "speculative" nature of communications sought to be captured for probable cause.

Where no offence has been committed or is being committed, s. 186 is not available.

Investigative Necessity

Section 186(1)(b) requires that the applicant establish the "investigative necessity" of the wiretap before it can be authorized.

Section 186 states:

186 (1) An authorization under this section may be given if the judge to whom the application is made is satisfied

[omitted (a)]

(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

[omitted (1.1), (2), (3), (4), (5), (5.1), (5.2), (6), (7) and (8)]
R.S., 1985, c. C-46, s. 186; 1993, c. 40, s. 6; 1997, c. 23, s. 5; 1999, c. 5, s. 5; 2001, c. 32, s. 6, c. 41, ss. 6.1, 133; 2005, c. 10, ss. 23, 34; 2014, c. 17, s. 4.

– CCC (CanLII), (DOJ)

---

Consideration of necessity balances the needs of the criminal investigationsa against protecting privacy rights.

The police has the duty to inform the judge of the progress of the investigation and the reasons why other techniques are not viable in the circumstances.

There are three ways to establish investigative necessity. The applicant must establish:

1. other investigative measures have been tried and have failed,
2. other investigative procedures are unlikely to succeed, or
3. the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

The applicant need only establish one of the three elements.

Necessity requires "no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry".

The consideration must be based on the "context of the whole investigation" and "not on a target by target basis or each known person's involvement".

Tried and Failed

It is not necessary that "all alternative investigative techniques have been tried." That is, the authorization need not be proven as a "last resort".

The consideration of necessity involves "regard both to the nature and purpose of the particular investigation which the police wish to undertake".

Likelihood of Success

A judge may place "considerable weight on the police officer's opinions as to the probable success of various types of possible investigative procedures". Some deference should be given an officer's expertise.

The judge should consider the effectiveness and danger associated with using alternate means such as surveillance and informers.

Specific Types of Investigations

Investigations of "international drug smuggling" would largely favour the necessity for an authorization.

Similarly, investigations targeting "higher-up" or "ringleader" members of a drug trafficking ring would favour the need for an authorization.

Exceptions for Criminal Organizations and Terrorism Offences

185
[omitted (1)]

Exception for criminal organizations and terrorist groups

(1.1) Notwithstanding paragraph (1)(h) [requirements for a 186 wiretap – no reasonable alternative], that paragraph does not apply where the application for an authorization is in relation to

(a) an offence under section 467.11 [participation in activities of criminal organization], 467.111 [recruitment of members by a criminal organization], 467.12 [commission of offence for criminal organization] or 467.13 [instructing commission of offence for criminal organization];

(b) an offence committed for the benefit of, at the direction of or in association with a criminal organization; or

(c) a terrorism offence.

[omitted (2), (3) and (4)]
R.S., 1985, c. C-46, s. 185; 1993, c. 40, s. 5; 1997, c. 18, s. 8, c. 23, s. 4; 2001, c. 32, s. 5, c. 41, ss. 6, 133; 2005, c. 10, ss. 22, 34; 2014, c. 17, s. 3.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

186
[omitted (1)]

Exception for criminal organizations and terrorism offences

(1.1) Notwithstanding paragraph (1)(b) [authorization of wiretap – exhaustion of alternatives], that paragraph does not apply where the judge is satisfied that the application for an authorization is in relation to

(a) an offence under section 467.11 , 467.111 [recruitment of members by a criminal organization], 467.12 [commission of offence for criminal organization] or 467.13 [instructing commission of offence for criminal organization];

(b) an offence committed for the benefit of, at the direction of or in association with a criminal organization; or

(c) a terrorism offence.

[omitted (2), (3), (4), (5), (5.1), (5.2), (6), (7) and (8)]
R.S., 1985, c. C-46, s. 186; 1993, c. 40, s. 6; 1997, c. 23, s. 5; 1999, c. 5, s. 5; 2001, c. 32, s. 6, c. 41, ss. 6.1, 133; 2005, c. 10, ss. 23, 34; 2014, c. 17, s. 4, c. 31, s. 9.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Names and Identities of Persons

The authorization under s. 185(1)(e) and 186(4)(c) must name all "known" persons to the wiretap. Failure to set out sufficient evidence to name the accused as the subject of the wiretap would violate the accused s. 8 Charter rights.

A voir dire must be held to challenge the naming of all known persons. This is known as a "Vanweenan hearing" or a "Chesson hearing".

The reference to "known" in s. 185(1)(e) and "known" in s. 186(4)(c) are concurrent requirements and both require the same standard of proof.

The threshold requirement is a "modest one" that is short of reasonable and probable grounds (RPG) to believe the person was involved in the offence committed. The investigators merely need to "know" the identity of the person and have "reasonable and probable grounds to believe that the interception of that person’s private communications may assist the investigation of an offence". The key connection is that the known person has a nexus (or link) with the offence in that the evidence of the person "may assist" in the investigation.

There is no requirement that the person be implicated in the offence. They may be completely innocent third parties.g32tm

There are no requirements for categories of "known persons". However, distinctions between types of "known persons" can be of use in describing the facts supporting the wiretap.

Identifying Place of Interception

Sections 185(1)(e) and 186(4)(c) require that the application identify the "place at which private communications may be intercepted".

Generally residences and motor vehicles of known targets is considered acceptable.

More variable places such as public pay phones should usually attract the use of terms and conditions in order to reduce the risk of invasion of privacy for unrelated parties. A failure to use such clauses may render the warrant invalid.

Unknown Locations

Where the location is unknown, there is some ability to use basket (or "resort to") clauses.

Application Procedure

An application under s. 186 must include a sworn affidavit by a "peace officer" or "public officer".

The affidavit must include:

• the facts relied upon (s. 185(1)(c))
• particulars of the investigated offence (s. 185(1)(c))
• the names, addresses and occupation, if known, of all persons whose communications "may assist" in the investigation (s. 185(1)(e))

Terms and Conditions

186 [omitted (1), (1.1) and (2)]

Terms and conditions

(3) Where an authorization is given in relation to the interception of private communications at a place described in subsection (2) [authorization of wiretap – prohibition on lawyers], the judge by whom the authorization is given shall include therein such terms and conditions as he considers advisable to protect privileged communications between solicitors and clients.

Content and limitation of authorization

(4) An authorization 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 such terms and conditions as the judge considers advisable in the public interest; and

(e) be valid for the period, not exceeding sixty days, set out therein.

[omitted (5), (5.1), (5.2), (6), (7) and (8)]
R.S., 1985, c. C-46, s. 186; 1993, c. 40, s. 6; 1997, c. 23, s. 5; 1999, c. 5, s. 5; 2001, c. 32, s. 6, c. 41, ss. 6.1, 133; 2005, c. 10, ss. 23, 34; 2014, c. 17, s. 4, c. 31, s. 9.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

"Live Monitoring"

The judge may include a "live monitoring" condition upon the wiretap that would require a person to monitor the recording of the wiretap in order to ensure that no recording is being done of any communications of parties other than the party or parties designated as authorized by the wiretap. This would be most likely applied to wiretap of phones that are potentially in use by a multitude of persons such as a public phone or office phone.

"Put Away" Term

A "put away" term is a condition that would require limited live monitoring for a short period of time, such as a couple of minutes, in order to ensure that the parties on the conversation are the proper parties, after which no live monitoring would be required.

Time Limitation

185
[omitted (1) and (1.1)]

Extension of period for notification

(2) An application for an authorization may be accompanied by an application, personally signed by the Attorney General of the province in which the application for the authorization is made or the Minister of Public Safety and Emergency Preparedness if the application for the authorization is made by him or on his behalf, to substitute for the period mentioned in subsection 196(1) [written notification to the target] such longer period not exceeding three years as is set out in the application.

Where extension to be granted

(3) Where an application for an authorization is accompanied by an application referred to in subsection (2) [annual report on wiretaps – information respecting s. 185 and 188 interceptions], the judge to whom the applications are made shall first consider the application referred to in subsection (2) and where, on the basis of the affidavit in support of the application for the authorization and any other affidavit evidence submitted in support of the application referred to in subsection (2) [written notification to the target], the judge is of the opinion that the interests of justice warrant the granting of the application, he shall fix a period, not exceeding three years, in substitution for the period mentioned in subsection 196(1) [written notification to the target].

Where extension not granted

(4) If the judge to whom an application for an authorization and an application referred to in subsection (2) [annual report on wiretaps – information respecting s. 185 and 188 interceptions] are made refuses to fix a period in substitution for the period mentioned in subsection 196(1) [written notification to the target] or if the judge fixes a shorter period than the one set out in the application referred to in subsection (2) [annual report on wiretaps – information respecting s. 185 and 188 interceptions], the person submitting the application for the authorization may withdraw that application and, if it is withdrawn, the judge shall not proceed to consider it or to give the authorization and shall destroy, or return to that person, both applications and all other material pertaining to them.
R.S., 1985, c. C-46, s. 185; 1993, c. 40, s. 5; 1997, c. 18, s. 8, c. 23, s. 4; 2001, c. 32, s. 5, c. 41, ss. 6, 133; 2005, c. 10, ss. 22, 34; 2014, c. 17, s. 3; 2022, c. 17, s. 7.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Renewals

The wiretap may be renewed under s. 186(6):

186
[omitted (1), (1.1), (2), (3), (4), (5), (5.1) and (5.2)]

Renewal of authorization

(6) Renewals of an authorization may be given by a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 [definitions - judges] on receipt by him or her of an ex parte application in writing signed by the Attorney General of the province in which the application is made or the Minister of Public Safety and Emergency Preparedness — or an agent specially designated in writing for the purposes of section 185 by the Minister or the Attorney General, as the case may be — accompanied by an affidavit of a peace officer or public officer deposing to the following matters:

(a) the reason and period for which the renewal is required,

(b) full particulars, together with times and dates, when interceptions, if any, were made or attempted under the authorization, and any information that has been obtained by any interception, and

(c) the number of instances, if any, on which, to the knowledge and belief of the deponent, an application has been made under this subsection in relation to the same authorization and on which the application was withdrawn or no renewal was given, the date on which each application was made and the name of the judge to whom each application was made,

and supported by such other information as the judge may require.

Renewal

(7) A renewal of an authorization may be given if the judge to whom the application is made is satisfied that any of the circumstances described in subsection (1) [authorization of wiretap – grounds] still obtain, but no renewal shall be for a period exceeding sixty days.

Related warrant or order

(8) 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 [territorial search warrants], 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.
R.S., 1985, c. C-46, s. 186; 1993, c. 40, s. 6; 1997, c. 23, s. 5; 1999, c. 5, s. 5; 2001, c. 32, s. 6, c. 41, ss. 6.1, 133; 2005, c. 10, ss. 23, 34; 2014, c. 17, s. 4, c. 31, s. 9.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Terrorism Offences

Time limitation in relation to criminal organizations and terrorism offences

186.1 Notwithstanding paragraphs 184.2(4)(e) [one-party consent wiretap – limitations – duration] and 186(4)(e) [one-party consent wiretap – limitations – duration] and subsection 186(7) [renewal not permitted beyond 60 days], an authorization or any renewal of an authorization may be valid for one or more periods specified in the authorization exceeding sixty days, each not exceeding one year, where the authorization is in relation to

(a) an offence under section 467.11 [participation in activities of criminal organization], 467.111 [recruitment of members by a criminal organization], 467.12 [commission of offence for criminal organization] or 467.13 [instructing commission of offence for criminal organization];

(b) an offence committed for the benefit of, at the direction of or in association with a criminal organization; or

(c) a terrorism offence.

1997, c. 23, s. 6; 2001, c. 32, s. 7, c. 41, ss. 7, 133; 2014, c. 17, s. 5.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Review of Authorization

The review of a wiretap is the same standard as a review of any warrant.

The test to be applied on the review of a wiretap warrant is whether there were "reasonable grounds to believe that the interception of communications may assist in the investigation of the offence. It is not a question of whether there is reasonable grounds to lay changes.

An affiant should be not only full and frank but also ‘clear and concise’”

Constitutionality

The standard of "may assist the investigation" as proof is constitutional.

Notice Requirements

Written notification to be given

196 (1) The Attorney General of the province in which an application under subsection 185(1) [requirements for a 186 wiretap] was made or the Minister of Public Safety and Emergency Preparedness if the application was made by or on behalf of that Minister shall, within 90 days after the period for which the authorization was given or renewed or within such other period as is fixed pursuant to subsection 185(3) [requirements for a 186 wiretap – grounds to extend notice period] or subsection (3) [grounds to grant an extension] of this section, notify in writing the person who was the object of the interception pursuant to the authorization and shall, in a manner prescribed by regulations made by the Governor in Council, certify to the court that gave the authorization that the person has been so notified.

Extension of period for notification

(2) The running of the 90 days referred to in subsection (1) [written notification to the target], or of any other period fixed pursuant to subsection 185(3) [requirements for a 186 wiretap – grounds to extend notice period] or subsection (3) [grounds to grant an extension] of this section, is suspended until any application made by the Attorney General or the Minister to a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 for an extension or a subsequent extension of the period for which the authorization was given or renewed has been heard and disposed of.

Where extension to be granted

(3) Where the judge to whom an application referred to in subsection (2) [suspension while extension application pending] is made, on the basis of an affidavit submitted in support of the application, is satisfied that

(a) the investigation of the offence to which the authorization relates, or

(b) a subsequent investigation of an offence listed in section 183 [Part VI - Invasion of Privacy - definitions] commenced as a result of information obtained from the investigation referred to in paragraph (a),

is continuing and is of the opinion that the interests of justice warrant the granting of the application, the judge shall grant an extension, or a subsequent extension, of the period, each extension not to exceed three years.

Application to be accompanied by affidavit

(4) An application pursuant to subsection (2) [suspension while extension application pending] shall be accompanied by an affidavit deposing to

(a) the facts known or believed by the deponent and relied on to justify the belief that an extension should be granted; and

(b) the number of instances, if any, on which an application has, to the knowledge or belief of the deponent, been made under that subsection in relation to the particular authorization and on which the application was withdrawn or the application was not granted, the date on which each application was made and the judge to whom each application was made.

Exception for criminal organizations and terrorist groups

(5) Notwithstanding subsections (3) [grounds to grant an extension] and 185(3) [requirements for a 186 wiretap – grounds to extend notice period], where the judge to whom an application referred to in subsection (2) [suspension while extension application pending] or 185(2) [requirements for a 186 wiretap – power to extend notice period] is made, on the basis of an affidavit submitted in support of the application, is satisfied that the investigation is in relation to

(a) an offence under section 467.11 [participation in activities of criminal organization], 467.111 [recruitment of members by a criminal organization], 467.12 [commission of offence for criminal organization] or 467.13 [instructing commission of offence for criminal organization],

(b) an offence committed for the benefit of, at the direction of or in association with a criminal organization, or

(c) a terrorism offence,

and is of the opinion that the interests of justice warrant the granting of the application, the judge shall grant an extension, or a subsequent extension, of the period, but no extension may exceed three years.
R.S., 1985, c. C-46, s. 196; R.S., 1985, c. 27 (1st Supp.), s. 28; 1993, c. 40, s. 14; 1997, c. 23, s. 7; 2001, c. 32, s. 8, c. 41, ss. 8, 133; 2005, c. 10, s. 25; 2014, c. 17, s. 6.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Protection of Privacy Regulations CRC, c. 440, states:

General

2 For the purposes of subsection 178.23(1) [now s. 196(1)] of the Criminal Code, the Attorney General of a province who gave a notice required to be given by that subsection, or the Solicitor General of Canada where the notice was given by him, shall certify to the court that issued the authorization that such notice was given by filing with a judge of the court a certificate signed by the person who gave the notice specifying

(a) the name and address of the person who was the object of the interception;

(b) the date on which the authorization and any renewal thereof expired;

(c) if any delay for the giving of notice was granted under section 178.23 or subsection 178.12(3) of the Criminal Code, the period of such delay; and

(d) the date, place and method of the giving of the notice.

SOR/81-859, s. 1.

[annotation(s) added]

– PPR

Appointed Wiretap Judges

Applications to specially appointed judges

188 (1) Notwithstanding section 185, an application made under that section for an authorization may be made ex parte to a judge of a superior court of criminal jurisdiction, or a judge as defined in section 552 [definitions - judges], designated from time to time by the Chief Justice, by a peace officer specially designated in writing, by name or otherwise, for the purposes of this section by

(a) the Minister of Public Safety and Emergency Preparedness, if the offence is one in respect of which proceedings, if any, may be instituted by the Government of Canada and conducted by or on behalf of the Attorney General of Canada, or

(b) the Attorney General of a province, in respect of any other offence in the province,

if the urgency of the situation requires interception of private communications to commence before an authorization could, with reasonable diligence, be obtained under section 186 [authorization of wiretap].

Authorizations in emergency

(2) Where the judge to whom an application is made pursuant to subsection (1) [emergency wiretaps – process] is satisfied that the urgency of the situation requires that interception of private communications commence before an authorization could, with reasonable diligence, be obtained under section 186, he may, on such terms and conditions, if any, as he considers advisable, give an authorization in writing for a period of up to thirty-six hours.
(3) [Repealed, 1993, c. 40, s. 8]

Definition of Chief Justice

(4) In this section, Chief Justice means

(a) in the Province of Ontario, the Chief Justice of the Ontario Court;

(b) in the Province of Quebec, the Chief Justice of the Superior Court;

(c) in the Provinces of Nova Scotia, British Columbia and Prince Edward Island, and in the Yukon and the Northwest Territories, the Chief Justice of the Supreme Court;

(d) in the Provinces of New Brunswick, Manitoba, Saskatchewan and Alberta, the Chief Justice of the Court of Queen’s Bench;

(e) in the Province of Newfoundland and Labrador, the Chief Justice of the Supreme Court, Trial Division; and

(f) in Nunavut, the Chief Justice of the Nunavut Court of Justice.

Inadmissibility of evidence

(5) The trial judge may deem inadmissible the evidence obtained by means of an interception of a private communication pursuant to a subsequent authorization given under this section, where he finds that the application for the subsequent authorization was based on the same facts, and involved the interception of the private communications of the same person or persons, or related to the same offence, on which the application for the original authorization was based.

Related warrant or order

(6) 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 [territorial search warrants], 487.01 [general warrants], 487.014 to 487.018 [production orders], 487.02 [assistance order], 492.1 [tracking warrants] and 492.2 [warrant for transmission data recorder] if the judge is of the opinion that the requested warrant or order is related to the execution of the authorization, that the urgency of the situation requires the warrant or the order and that it can be reasonably executed or complied with within 36 hours.

R.S., 1985, c. C-46, s. 188; R.S., 1985, c. 27 (1st Supp.), ss. 25, 185(F), c. 27 (2nd Supp.), s. 10; 1990, c. 17, s. 10; 1992, c. 1, s. 58, c. 51, s. 35; 1993, c. 40, s. 8; 1999, c. 3, s. 28; 2002, c. 7, s. 140; 2005, c. 10, s. 34; 2014, c. 31, s. 11; 2015, c. 3, s. 47; 2017, c. 33, s. 255.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Warrantless Wiretaps

This page was last substantively updated or reviewed January 2015. (Rev. # 79444)

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• < Warrant Searches
• < Wiretaps

Interception to Prevent Bodily Harm

Under s. 184.1 a peace officer may intercept a private communication without judicial authorization:

Interception to prevent bodily harm

184.1 (1) An agent of the state may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication if

(a) either the originator of the private communication or the person intended by the originator to receive it has consented to the interception;

(b) the agent of the state believes on reasonable grounds that there is a risk of bodily harm to the person who consented to the interception; and

(c) the purpose of the interception is to prevent the bodily harm.

Admissibility of intercepted communication

(2) The contents of a private communication that is obtained from an interception pursuant to subsection (1) [interception to prevent bodily harm – offence] are inadmissible as evidence except for the purposes of proceedings in which actual, attempted or threatened bodily harm is alleged, including proceedings in respect of an application for an authorization under this Part or in respect of a search warrant or a warrant for the arrest of any person.
[omitted (3) and (4)]
1993, c. 40, s. 4.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

This requires that:

1. consent of one of the parties to the interception;
2. the interceptor reasonably believes there is a risk of bodily harm to the consenting party;
3. the purpose of the interception is to prevent bodily harm (such as to an undercover peace officer making a drug buy).

Wiretaps under 184.2 do not require the affiant to establish "investigative necessity" for the wiretap.

Destruction

Should the wiretap not intercept any relevant communications, the recording must be destroyed "as soon as practicable".

184.1
[omitted (1) and (2)]

Destruction of recordings and transcripts

(3) The agent of the state who intercepts a private communication pursuant to subsection (1) [interception to prevent bodily harm – offence] shall, as soon as is practicable in the circumstances, destroy any recording of the private communication that is obtained from an interception pursuant to subsection (1) [interception to prevent bodily harm – offence], any full or partial transcript of the recording and any notes made by that agent of the private communication if nothing in the private communication suggests that bodily harm, attempted bodily harm or threatened bodily harm has occurred or is likely to occur.
[omitted (4)]
1993, c. 40, s. 4.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Emergency Wiretap

Section 164.4 permits warrantless wiretaps in exceptional circumstances. The section states:

Immediate interception — imminent harm

184.4 A police officer may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication if the police officer has reasonable grounds to believe that

(a) the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained under any other provision of this Part [Pt. VI – Invasion of Privacy (ss. 183 to 196.1)];

(b) the interception is immediately necessary to prevent an offence 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 commit the offence that is likely to cause the harm or is the victim, or intended victim, of the harm.

1993, c. 40, s. 4; 2013, c. 8, s. 3.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

This section, in its pre-2013 form, was determined to be unconstitutional due to a lack of safeguards, including a lack of a notice requirement, reporting requirements to Parliament, record-keeping requirement; and restrictions on the use that can be made of the interceptions.

Notice Requirements for Warrantless Wiretaps or Serious Offences

Written notice — interception in accordance with section 184.4

196.1 (1) Subject to subsections (3) [grounds of granting extension] and (5) [grounds of granting extension – crim org or terrorism], the Attorney General of the province in which a police officer intercepts a private communication under section 184.4 [immediate interception — imminent harm] or, if the interception relates to an offence for which proceedings may be commenced by the Attorney General of Canada, the Minister of Public Safety and Emergency Preparedness shall give notice in writing of the interception to any person who was the object of the interception within 90 days after the day on which it occurred.

Extension of period for notification

(2) The running of the 90-day period or of any extension granted under subsection (3) [grounds of granting extension] or (5) [grounds of granting extension – crim org or terrorism] is suspended until any application made by the Attorney General of the province or the Minister to a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 [definitions - judges] for an extension or a subsequent extension of the period has been heard and disposed of.

Where extension to be granted

(3) The judge to whom an application under subsection (2) [suspension while extension application pending] is made shall grant an extension or a subsequent extension of the 90-day period — each extension not to exceed three years — if the judge is of the opinion that the interests of justice warrant granting the application and is satisfied, on the basis of an affidavit submitted in support of the application, that one of the following investigations is continuing:

(a) the investigation of the offence to which the interception relates; or

(b) a subsequent investigation of an offence commenced as a result of information obtained from the investigation referred to in paragraph (a).

Application to be accompanied by affidavit

(4) An application shall be accompanied by an affidavit deposing to

(a) the facts known or believed by the deponent and relied on to justify the belief that an extension should be granted; and

(b) the number of instances, if any, on which an application has, to the knowledge or belief of the deponent, been made under subsection (2) [suspension while extension application pending] in relation to the particular interception and on which the application was withdrawn or the application was not granted, the date on which each application was made and the judge to whom each application was made.

Exception — criminal organization or terrorism offence

(5) Despite subsection (3) [grounds of granting extension], the judge to whom an application under subsection (2) [suspension while extension application pending] is made shall grant an extension or a subsequent extension of the 90-day period — each extension not to exceed three years — if the judge is of the opinion that the interests of justice warrant granting the application and is satisfied, on the basis of an affidavit submitted in support of the application, that the interception of the communication relates to an investigation of

(a) an offence under section 467.11 [participation in activities of criminal organization], 467.12 [commission of offence for criminal organization] or 467.13 [instructing commission of offence for criminal organization];

(b) an offence committed for the benefit of, at the direction of or in association with a criminal organization; or

(c) a terrorism offence.

2013, c. 8, s. 6.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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List of Designated Wiretap Eligible Offences

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• < Warrant Searches
• < Wiretaps

This page was last substantively updated or reviewed August 2021. (Rev. # 79444)

List of Offences

Section 183 lists the following within the definition of "offence" within the meaning of the wiretap provisions:

183
...
"offence" means an offence contrary to, any conspiracy or attempt to commit or being an accessory after the fact in relation to an offence contrary to, or any counselling in relation to an offence contrary to

Criminal Code

(a) any of the following provisions of this Act, namely,

(i) s. 47 (high treason)

(ii) s. 51 (intimidating Parliament or a legislature)

(iii) s. 52 (sabotage),

(iii.1) s. 56.1 (identity documents),

(iv) s. 57 (forgery, etc.),

(v) s. 61 (sedition),

(vi) s. 76 (hijacking),

(vii) section 77 (endangering safety of aircraft or airport),

(viii) section 78 (offensive weapons, etc., on aircraft),

(ix) section 78.1 (offences against maritime navigation or fixed platforms),

(x) section 80 (breach of duty),

(xi) section 81 (using explosives),

(xii) section 82 (possessing explosives),

(xii.01) section 82.3 (possession, etc., of nuclear material, radioactive material or device),

(xii.02) section 82.4 (use or alteration of nuclear material, radioactive material or device),

(xii.03) section 82.5 (commission of indictable offence to obtain nuclear material, etc.),

(xii.04) section 82.6 (threats),

(xii.1) section 83.02 (providing or collecting property for certain activities),

(xii.2) subsection 83.03(1) (providing, making available, etc., property or services for terrorist purposes),

(xii.21) subsection 83.03(2) (providing, making available, etc., property or services — use by terrorist group),

(xii.3) section 83.04 (using or possessing property for terrorist purposes),

(xii.4) section 83.18 (participation in activity of terrorist group),

(xii.41) section 83.181 (leaving Canada to participate in activity of terrorist group),

(xii.5) section 83.19 (facilitating terrorist activity),

(xii.51) section 83.191 (leaving Canada to facilitate terrorist activity),

(xii.6) section 83.2 (commission of offence for terrorist group),

(xii.61) section 83.201 (leaving Canada to commit offence for terrorist group),

(xii.62) section 83.202 (leaving Canada to commit offence that is terrorist activity),

(xii.7) section 83.21 (instructing to carry out activity for terrorist group),

(xii.8) section 83.22 (instructing to carry out terrorist activity),

(xii.81) section 83.221 (counselling commission of terrorism offence),

(xii.9) section 83.23 (harbouring or concealing),

(xii.91) section 83.231 (hoax — terrorist activity),

(xiii) section 96 (possession of weapon obtained by commission of offence),

(xiii.1) section 98 (breaking and entering to steal firearm),

(xiii.2) section 98.1 (robbery to steal firearm),

(xiv) section 99 (weapons trafficking),

(xv) section 100 (possession for purpose of weapons trafficking),

(xvi) section 102 (making automatic firearm),

(xvii) section 103 (importing or exporting knowing it is unauthorized),

(xviii) section 104 (unauthorized importing or exporting),

(xix) section 119 (bribery, etc.),

(xx) section 120 (bribery, etc.),

(xxi) section 121 (fraud on government),

(xxii) section 122 (breach of trust),

(xxiii) section 123 (municipal corruption),

(xxiv) section 132 (perjury),

(xxv) section 139 (obstructing justice),

(xxvi) section 144 (prison breach),

(xxvii) subsection 145(1) (escape, etc.),

(xxvii.1) section 162 (voyeurism),

(xxvii.2) section 162.1 (intimate image),

(xxviii) subsection 163(1) (obscene materials),

(xxix) section 163.1 (child pornography),

(xxix.1) section 170 (parent or guardian procuring sexual activity),

(xxix.2) section 171 (householder permitting sexual activity),

(xxix.3) section 171.1 (making sexually explicit material available to child),

(xxix.4) section 172.1 (luring a child),

(xxix.5) section 172.2 (agreement or arrangement — sexual offence against child),

(xxx) section 184 (unlawful interception),

(xxxi) section 191 (possession of intercepting device),

(xxxii) subsection 201(1) (keeping gaming or betting house),

(xxxiii) paragraph 202(1)(e) (pool-selling, etc.),

(xxxiv) [Repealed, 2019, c. 25, s. 63.1]

(xxxv) to (xxxviii) [Repealed, 2014, c. 25, s. 11]

(xxxix) section 235 (murder),

(xxxix.1) section 244 (discharging firearm with intent),

(xxxix.2) section 244.2 (discharging firearm — recklessness),

(xl) section 264.1 (uttering threats),

(xli) section 267 (assault with a weapon or causing bodily harm),

(xlii) section 268 (aggravated assault),

(xliii) section 269 (unlawfully causing bodily harm),

(xliii.1) section 270.01 (assaulting peace officer with weapon or causing bodily harm),

(xliii.2) section 270.02 (aggravated assault of peace officer),

(xliv) section 271 (sexual assault),

(xlv) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm),

(xlvi) section 273 (aggravated sexual assault),

(xlvi.1) section 273.3 (removal of child from Canada),

(xlvii) section 279 (kidnapping),

(xlvii.1) section 279.01 (trafficking in persons),

(xlvii.11) section 279.011 (trafficking of a person under the age of eighteen years),

(xlvii.2) section 279.02 (material benefit),

(xlvii.3) section 279.03 (withholding or destroying documents),

(xlviii) section 279.1 (hostage taking),

(xlix) section 280 (abduction of person under sixteen),

(l) section 281 (abduction of person under fourteen),

(li) section 282 (abduction in contravention of custody order or parenting order),

(lii) section 283 (abduction),

(lii.1) 286.1 (obtaining sexual services for consideration),

(lii.2) 286.2 (material benefit from sexual services),

(lii.3) 286.3 (procuring),

(lii.4) 286.4 (advertising sexual services),

(liii) section 318 (advocating genocide),

(liii.1) section 320.102 (conversion therapy),

(liv) section 327 (possession of device to obtain telecommunication facility or service),

(liv.1) section 333.1 (motor vehicle theft),

(lv) section 334 (theft),

(lvi) section 342 (theft, forgery, etc., of credit card),

(lvi.1) section 342.01 (instruments for copying credit card data or forging or falsifying credit cards),

(lvii) section 342.1 (unauthorized use of computer),

(lviii) section 342.2 (possession of device to obtain unauthorized use of computer system or to commit mischief),

(lix) section 344 (robbery),

(lx) section 346 (extortion),

(lxi) section 347 (criminal interest rate),

(lxii) section 348 ((breaking and entering),

(lxii.1) section 353.1 (tampering with vehicle identification number),

(lxiii) section 354 (possession of property obtained by crime),

(lxiii.1) section 355.2 (trafficking in property obtained by crime),

(lxiii.2) section 355.4 (possession of property obtained by crime — trafficking),

(lxiv) section 356 (theft from mail),

(lxv) section 367 (forgery),

(lxvi) section 368 (use, trafficking or possession of forged document),

(lxvi.1) section 368.1 (forgery instruments),

(lxvii) section 372 (false information),

(lxviii) section 380 (fraud),

(lxix) section 381 (using mails to defraud),

(lxx) section 382 (fraudulent manipulation of stock exchange transactions),

(lxx.01) section 391 (trade secret),

(lxx.1) subsection 402.2(1) (identity theft),

(lxx.2) subsection 402.2(2) (trafficking in identity information),

(lxx.3) section 403 (identity fraud),

(lxxi) section 423.1 (intimidation of justice system participant or journalist),

(lxxi.1) section 423.2 (intimidation — health services),

(lxxii) section 424 (threat to commit offences against internationally protected person),

(lxxii.1) section 424.1 (threat against United Nations or associated personnel),

(lxxiii) section 426 (secret commissions),

(lxxiv) section 430 (mischief),

(lxxv) section 431 (attack on premises, residence or transport of internationally protected person),

(lxxv.1) section 431.1 (attack on premises, accommodation or transport of United Nations or associated personnel),

(lxxv.2) subsection 431.2(2) (explosive or other lethal device),

(lxxvi) section 433 (arson),

(lxxvii) section 434 (arson),

(lxxviii) section 434.1 (arson),

(lxxix) section 435 (arson for fraudulent purpose),

(lxxx) section 449 (making counterfeit money),

(lxxxi) section 450 (possession, etc., of counterfeit money),

(lxxxii) section 452 (uttering, etc., counterfeit money),

(lxxxiii) section 462.31 (laundering proceeds of crime),

(lxxxiv) subsection 462.33(11) (acting in contravention of restraint order),

(lxxxv) section 467.11 (participation in criminal organization),

(lxxxv.1) section 467.111 (recruitment of members — criminal organization),

(lxxxvi) section 467.12 (commission of offence for criminal organization), or

(lxxxvii) section 467.13 (instructing commission of offence for criminal organization),

Bankruptcy and Insolvency Act

(b) section 198 (fraudulent bankruptcy) of the Bankruptcy and Insolvency Act,

Biological and Toxin Weapons Convention Implementation Act

(b.1) any of the following provisions of the Biological and Toxin Weapons Convention Implementation Act, namely,

(i) section 6 (production, etc., of biological agents and means of delivery), or

(ii) section 7 (unauthorized production, etc., of biological agents),

Cannabis Act

(b.2) any of the following provisions of the Cannabis Act, namely,

(i) section 9 (distribution and possession for purpose of distributing),

(ii) section 10 (selling and possession for purpose of selling),

(iii) section 11 (importing and exporting and possession for purpose of exporting),

(iv) section 12 (production),

(v) section 13 (possession, etc., for use in production or distribution of illicit cannabis), or

(vi) section 14 (use of young person),

Competition Act

(c) any of the following provisions of the Competition Act, namely,

(i) section 45 (conspiracies, agreements or arrangements between competitors),

(ii) section 47 (bid-rigging), or

(iii) subsection 52.1(3) (deceptive telemarketing),

Controlled Drugs and Substances Act

(d) any of the following provisions of the Controlled Drugs and Substances Act, namely,

(i) section 5 (trafficking),

(ii) section 6 (importing and exporting),

(iii) section 7 (production), or

(iv) section 7.1 (possession, sale, etc., for use in production or trafficking),

(d.1) section 42 (offences related to infringement of copyright) of the Copyright Act,

Corruption of Foreign Public Officials Act

(e) section 3 (bribing a foreign public official) of the Corruption of Foreign Public Officials Act,

(e.1) the Crimes Against Humanity and War Crimes Act,

Customs Act

(f) either of the following provisions of the Customs Act, namely,

(i) section 153 (false statements), or

(ii) section 159 (smuggling),

Excise Act

(g) any of the following provisions of the Excise Act, 2001, namely,

(i) section 214 (unlawful production, sale, etc., of tobacco, alcohol, cannabis or vaping products),

(ii) section 216 (unlawful possession of tobacco product),

(iii) section 218 (unlawful possession, sale, etc., of alcohol),

(iii.1) section 218.1 (unlawful possession, sale, etc., of unstamped cannabis),

(iii.2) section 218.2 (unlawful possession, sale, etc., of unstamped vaping products),

(iv) section 219 (falsifying or destroying records),

(v) section 230 (possession of property obtained by excise offences), or

(vi) section 231 (laundering proceeds of excise offences),

Export and Import Permits Act

(h) any of the following provisions of the Export and Import Permits Act, namely,

(i) section 13 (export or attempt to export),

(ii) section 14 (import or attempt to import),

(ii.1) section 14.2 (broker or attempt to broker),

(iii) section 15 (diversion, etc.),

(iv) section 16 (no transfer of permits),

(v) section 17 (false information), or

(vi) section 18 (aiding and abetting),

Immigration and Refugee Protection Act

(i) any of the following provisions of the Immigration and Refugee Protection Act, namely,

(i) section 117 (organizing entry into Canada),

(ii) section 118 (trafficking in persons),

(iii) section 119 (disembarking persons at sea),

(iv) section 122 (offences related to documents),

(v) section 126 (counselling misrepresentation), or

(vi) section 129 (offences relating to officers),

Security of Information Act

(j) any offence under the Security of Information Act, or

Trade-marks Act

(k) section 51.01 (offences related to goods, labels, packaging or services) of the Trademarks Act,

and includes any other offence that there are reasonable grounds to believe is a criminal organization offence or any other offence that there are reasonable grounds to believe is an offence described in paragraph (b) or (c) of the definition terrorism offence in section 2; (infraction)
...
R.S., 1985, c. C-46, s. 183 R.S., 1985, c. 27 (1st Supp.), ss. 7, 23, c. 1 (2nd Supp.), s. 213, c. 1 (4th Supp.), s. 13, c. 29 (4th Supp.), s. 17, c. 42 (4th Supp.), s. 1; 1991, c. 28, s. 12; 1992, c. 27, s. 90; 1993, c. 7, s. 5, c. 25, s. 94, c. 40, s. 1, c. 46, s. 4 1995, c. 39, s. 140 1996, c. 19, s. 66 1997, c. 18, s. 7, c. 23, s. 3 1998, c. 34, s. 8; 1999, c. 2, s. 47, c. 5, s. 4 2000, c. 24, s. 43 2001, c. 32, s. 4, c. 41, ss. 5, 31, 133 2002, c. 22, s. 409 2004, c. 15, s. 108 2005, c. 32, s. 10, c. 43, s. 1 2008, c. 6, s. 15 2009, c. 2, s. 442, c. 22, s. 4, c. 28, s. 3 2010, c. 3, s. 1, c. 14, s. 2 2012, c. 1, s. 24 2013, c. 8, s. 2, c. 9, s. 14, c. 13, s. 7 2014, c. 17, s. 2, c. 20, s. 366(E), c. 25, s. 11, c. 31, s. 7, c. 32, s. 59 2015, c. 20, s. 19 2017, c. 7, s. 56 2018, c. 12, s. 114; 2018, c. 16, s. 210; 2018, c. 29, s. 15; 2019, c. 13, s. 150; 2019, c. 16, s. 122; 2019, c. 25, s. 63.1; 2020, c. 1, s. 36; 2021, s. 24, s. 3; 2021, c. 27, s. 1; 2022, c. 10, s. 81; 2022, c. 17, s. 5; 2023, c. 14, s. 2.

– CCC (CanLII), (DOJ)

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This list "includes any other offence that there are reasonable grounds to believe is a criminal organization offence or any other offence that there are reasonable grounds to believe is an offence described in paragraph (b) or (c) of the definition “terrorism offence” in section 2;"

Admitting Wiretap Evidence

This page was last substantively updated or reviewed January 2016. (Rev. # 79444)

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• < Warrant Searches
• < Wiretaps

General Principles

Section 189(5) establishes the statutory rules and preconditions for the admissibility of wiretap evidence.

Place

When dealing with land-line phones, the "place" refers to the two ends of the conversation. For cell phones, the place would describe the location of the cell towers.

Breach of Privacy

The Charter does not apply to recordings of conversations between to private citizens unless one of them is acting as an agent of the state. The only remedy for aggrieved parties is a civil one. The exceptions are where the person recording the communication is an "agent of the state" or a "part of government."

Non-Official Languages

A transcript of the wiretap that has been translated into an official language should be sufficient to satsify s. 189 requirements.

Notice

The purpose of s. 189(5)(a) is to provide the defense "with timely disclosure of the evidence that may be tendered against him to enable him to prepare his defence."

What amounts to a "reasonable notice" will depend on the circumstances of the case in light of the purpose of the provision.

Reasonable notice can include notes occurring during pretrial motions "several months" before the empaneling of a jury.

189
(1) to (4) [Repealed, 1993, c. 40, s. 10]

Notice of intention to produce evidence

(5) The contents of a private communication that is obtained from an interception of the private communication pursuant to any provision of, or pursuant to an authorization given under, this Part [Pt. VI – Invasion of Privacy (ss. 183 to 196.1)] shall not be received in evidence unless the party intending to adduce it has given to the accused reasonable notice of the intention together with

(a) a transcript of the private communication, where it will be adduced in the form of a recording, or a statement setting out full particulars of the private communication, where evidence of the private communication will be given viva voce; and

(b) a statement respecting the time, place and date of the private communication and the parties thereto, if known.

[omitted (6)]
R.S., 1985, c. C-46, s. 189; 1993, c. 40, s. 10.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

The notice requirements under s. 189(5) are mandatory. A failure to comply with the conditions prevents a judge from receiving it as evidence.

What constitutes "reasonable notice" is "fact-driven" and depends on the circumstances.

No Notice for Preliminary Inquiry

Notice is not required for admitting wiretap evidence at a preliminary inquiry.

No Notice re Content

There is no obligation to provide notice of what exactly was intercepted.

Particulars

The notice provided under s. 189(5) be adequate, the defence of remedy under section 190 to see particulars.

Further particulars

190 Where an accused has been given notice pursuant to subsection 189(5) [notice of intention to produce wiretap evidence], any judge of the court in which the trial of the accused is being or is to be held may at any time order that further particulars be given of the private communication that is intended to be adduced in evidence.
1973-74, c. 50, s. 2.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Failure to Notify

Where there has been no proper notice pursuant to s. 196, the intercept does not become unlawful.

Hearsay

Wiretaps, even though the contain hearsay, are frequently admitted into evidence. Typically, they are accepted under the "admissions against interest" exception.

They also will satisfy the principled approach requirements of necessity and reliability as wiretaps contain spontaneous declarations that are contemporaneously recorded are likely the best evidence available for the facts they establish. They provide "cogent and reliable" evidence of the parties to the conversation and their activities. The evidence is high quality since the parties are unaware that they are being listened to. They will have "enormous weight."

Privileged Evidence

189
[omitted "(1) to (4)" and (5)]

Privileged evidence

(6) Any information obtained by an interception that, but for the interception, would have been privileged remains privileged and inadmissible as evidence without the consent of the person enjoying the privilege.
R.S., 1985, c. C-46, s. 189; 1993, c. 40, s. 10.

– CCC (CanLII), (DOJ)

---

A wife who previously consented to a wiretap of conversations between her and her husband but then refuses to testify at trial may rely on spousal privilege s. 4(3) of the Evidence Act.

Procedure

Wiretap Transcripts

Transcripts of wiretaps may be put to the jury. The transcript however are only to be sued as aids and not evidence themselves. The court should be satisfied that the transcripts are "substantially accurate" before allowing them to be put to the jury.

Labels on Transcripts

It may be acceptable to put a wiretap transcript to a jury along with labels identifying the alleged identity of the speaker in the wiretap, even where identity is in dispute, as long as the jury is provided with limiting instructions that indicate the labels are not evidence and the jury must decide for themselves.

See Also

• Identity#Voice Identification

Annual Wiretap Reports

• < Search and Seizure
• < Warrant Searches
• < Wiretaps

Annual report

195 (1) The Minister of Public Safety and Emergency Preparedness shall, as soon as possible after the end of each year, prepare a report relating to

(a) authorizations for which that Minister and agents specially designated in writing by that Minister for the purposes of section 185 [procedure to apply for a 186 wiretap] applied and the interceptions made under those authorizations in the immediately preceding year;

(b) authorizations given under section 188 [emergency wiretaps] for which peace officers specially designated by that Minister for the purposes of that section applied and the interceptions made under those authorizations in the immediately preceding year; and

(c) interceptions made under section 184.4 [immediate interception — imminent harm] in the immediately preceding year if the interceptions relate to an offence for which proceedings may be commenced by the Attorney General of Canada.

Information respecting authorizations — sections 185 and 188

(2) The report shall, in relation to the authorizations and interceptions referred to in paragraphs (1)(a) [annual report on wiretaps – s. 185 interceptions] and (b) [annual report on wiretaps – s. 188 interceptions], set out

(a) the number of applications made for authorizations;

(b) the number of applications made for renewal of authorizations;

(c) the number of applications referred to in paragraphs (a) [annual report on wiretaps – s. 185 interceptions] and (b) [annual report on wiretaps – s. 188 interceptions] that were granted, the number of those applications that were refused and the number of applications referred to in paragraph (a) that were granted subject to terms and conditions;

(d) the number of persons identified in an authorization against whom proceedings were commenced at the instance of the Attorney General of Canada in respect of

(i) an offence specified in the authorization,

(ii) an offence other than an offence specified in the authorization but in respect of which an authorization may be given, and

(iii) an offence in respect of which an authorization may not be given;

(e) the number of persons not identified in an authorization against whom proceedings were commenced at the instance of the Attorney General of Canada in respect of

(i) an offence specified in such an authorization,

(ii) an offence other than an offence specified in such an authorization but in respect of which an authorization may be given, and

(iii) an offence other than an offence specified in such an authorization and for which no such authorization may be given,

and whose commission or alleged commission of the offence became known to a peace officer as a result of an interception of a private communication under an authorization;

(f) the average period for which authorizations were given and for which renewals thereof were granted;

(g) the number of authorizations that, by virtue of one or more renewals thereof, were valid for more than sixty days, for more than one hundred and twenty days, for more than one hundred and eighty days and for more than two hundred and forty days;

(h) the number of notifications given pursuant to section 196 ;

(i) the offences in respect of which authorizations were given, specifying the number of authorizations given in respect of each of those offences;

(j) a description of all classes of places specified in authorizations and the number of authorizations in which each of those classes of places was specified;

(k) a general description of the methods of interception involved in each interception under an authorization;

(l) the number of persons arrested whose identity became known to a peace officer as a result of an interception under an authorization;

(m) the number of criminal proceedings commenced at the instance of the Attorney General of Canada in which private communications obtained by interception under an authorization were adduced in evidence and the number of those proceedings that resulted in a conviction; and

(n) the number of criminal investigations in which information obtained as a result of the interception of a private communication under an authorization was used although the private communication was not adduced in evidence in criminal proceedings commenced at the instance of the Attorney General of Canada as a result of the investigations.

Information respecting interceptions — section 184.4

(2.1) The report shall, in relation to the interceptions referred to in paragraph (1)(c) [annual report on wiretaps – s. 184.4 interceptions], set out

(a) the number of interceptions made;

(b) the number of parties to each intercepted private communication against whom proceedings were commenced in respect of the offence that the police officer sought to prevent in intercepting the private communication or in respect of any other offence that was detected as a result of the interception;

(c) the number of persons who were not parties to an intercepted private communication but whose commission or alleged commission of an offence became known to a police officer as a result of the interception of a private communication, and against whom proceedings were commenced in respect of the offence that the police officer sought to prevent in intercepting the private communication or in respect of any other offence that was detected as a result of the interception;

(d) the number of notifications given under section 196.1 ;

(e) the offences in respect of which interceptions were made and any other offences for which proceedings were commenced as a result of an interception, as well as the number of interceptions made with respect to each offence;

(f) a general description of the methods of interception used for each interception;

(g) the number of persons arrested whose identity became known to a police officer as a result of an interception;

(h) the number of criminal proceedings commenced in which private communications obtained by interception were adduced in evidence and the number of those proceedings that resulted in a conviction;

(i) the number of criminal investigations in which information obtained as a result of the interception of a private communication was used even though the private communication was not adduced in evidence in criminal proceedings commenced as a result of the investigations; and

(j) the duration of each interception and the aggregate duration of all the interceptions related to the investigation of the offence that the police officer sought to prevent in intercepting the private communication.

Other information

(3) The report shall, in addition to the information referred to in subsections (2) [annual report on wiretaps – information respecting s. 185 and 188 interceptions] and (2.1) [annual report on wiretaps – information respecting s. 184.4 interceptions], set out

(a) the number of prosecutions commenced against officers or servants of Her Majesty in right of Canada or members of the Canadian Forces for offences under section 184 or 193; and

(b) a general assessment of the importance of interception of private communications for the investigation, detection, prevention and prosecution of offences in Canada.

Report to be laid before Parliament

(4) The Minister of Public Safety and Emergency Preparedness shall cause a copy of each report prepared by him under subsection (1) [annual report on wiretaps] to be laid before Parliament forthwith on completion thereof, or if Parliament is not then sitting, on any of the first fifteen days next thereafter that Parliament is sitting.

Report by Attorneys General

(5) The Attorney General of each province shall, as soon as possible after the end of each year, prepare and publish or otherwise make available to the public a report relating to

(a) authorizations for which the Attorney General and agents specially designated in writing by the Attorney General for the purposes of section 185 [procedure to apply for a 186 wiretap] applied and to the interceptions made under those authorizations in the immediately preceding year;

(b) authorizations given under section 188 [emergency wiretaps] for which peace officers specially designated by the Attorney General for the purposes of that section applied and to the interceptions made under those authorizations in the immediately preceding year; and

(c) interceptions made under section 184.4 [immediate interception — imminent harm] in the immediately preceding year, if the interceptions relate to an offence not referred to in paragraph (1)(c) [annual report on wiretaps – s. 184.4 interceptions].

The report must set out, with any modifications that the circumstances require, the information described in subsections (2) to (3) [annual report on wiretaps – required content of report].
R.S., 1985, c. C-46, s. 195; R.S., 1985, c. 27 (1st Supp.), s. 27; 2005, c. 10, s. 34; 2013, c. 8, s. 5; 2015, c. 20, s. 20.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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