Third Party Wiretaps

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General Principles

A wiretap can only be authorized when the justice is "provided with accurate and candid information".[1]

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".[2]

This includes revealing facts known that "tend to disprove the existence of either reasonable and probable grounds or investigative necessity".[3]

An affidavit that has not been signed by the person taking sworn statement will not necessarily invalidate the application.[4]

  1. R v Hosie, 1996 CanLII 450 (ON CA), (1996), 107 CCC (3d) 385 (Ont. C.A.)
  2. This is the same as all warrants, see Applying for Judicial Authorizations,
    R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, (2000), 149 CCC (3d) 449 (S.C.C.), at para 46-7
    R v Agensys International Inc. 2004 CanLII 17920 (ON CA), (2004), 71 O.R. (3d) 515 (C.A.) at para 42-3
  3. R v Bogiatzis, [2003] O.J. No. 3335 (S.C.J.)(*no link) at para 11
  4. R v Dixon, 2012 ONSC 181 (CanLII)

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 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 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.


...
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.


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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.

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.
Terms and conditions
(3) Where an authorization is given in relation to the interception of private communications at a place described in subsection (2), 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.

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) 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.

...
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.


http://canlii.ca/t/7vf2#sec186 CCC]


The authorizing judge may issue other warrants or orders at the same time where they are "related to the execution of the authorization".[1]

  1. s. 186 states ("(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, 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.")

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.[1]

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."[2] 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.[3]

A fishing expedition is not a proper basis to authorize the wiretap.[4]

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.[5]

  1. R v Pires; R v Lising 2005 SCC 66 (CanLII) at para 41
  2. R v Madrid, 1994 CanLII 1682 (BC CA), [1994] BCJ No 1786 at 82
  3. R v Thompson, 1990 CanLII 43 (SCC), [1990] 2 SCR 1111 at p. 1139
  4. see R v Finlay and Grelette 1985 CanLII 117 (ON CA), (1985), 52 O.R. (2d) 632 (C.A.)
  5. R v Della Penna, 2012 BCCA 3 (CanLII) at para 26

Best Interests of the Administration of Justice

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".[1] That is to say, the requirement of "reasonable and probable grounds" have been read into s. 186(1)(a).[2]

The "probable cause" must relate to belief that:[3]

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

Notably this does not permit belief of future offences.[4] However, it is reasonable to rely on the "speculative" nature of communications sought to be captured for probable cause.[5]

  1. R v Finlay and Grellette (1985), 1985 CanLII 117 (ON CA), 23 CCC (3d) 48 at p. 72, leave to appeal refused
  2. see R v Beauchamp, 2015 ONCA 260 (CanLII), at para 91
    R v Garofoli, [1990] 2 SCR 1421, 1990 CanLII 52 (SCC) at paras 34 to 36
  3. R v Mahal, 2012 ONCA 673 (CanLII), at paras 75
  4. R v Lucas, 2014 ONCA 561 (CanLII)
    see also R v Tse, [2012] 1 SCR 531, 2012 SCC 16 (CanLII) at paras 77 to 78
    R v Beauchamp at para 92
    by contrast s. 184.2(3)(a) relates to offences that "will be committed".
  5. Beauchamp at para 93

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
...

(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.

...
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.


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There are three ways to establish investigative necessity. The applicant must establish:[1]

  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.[2]

  1. R v Pham, 2009 CanLII 60792 (ON SC) at para 89
    Duarte 1990 CanLII 150 (SCC), [1990] 1 SCR 30
    R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992 at para 34
  2. R v Smyk et al. 1993 CanLII 3370 (MB CA), (1993), 86 CCC (3d) 63 (Man. C.A.) at para 70

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".[1]

  1. R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992 at para 34

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.[1]

The judge should consider the effectiveness and danger associated with using alternate means such as surveillance and informers.[2]

  1. R v Paris and Normand, 2006 CanLII 11655 (ON CA) at para 22
  2. R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992 at paras 40, 42

Specific Types of Investigations

Investigations of "international drug smuggling" would largely favour the necessity for an authorization.[1]

Similarly, investigations targeting "higher-up" or "ringleader" members of a drug trafficking ring would favour the need for an authorization.[2]

  1. R v Tahirkheli, 1998 CanLII 6243 (ON CA), (1998), 130 CCC (3d) 19, at para 22
  2. R v Araujo at paras 40, 43

Exceptions for Criminal Organizations and Terrorism Offences

185.
...
Exception for criminal organizations and terrorist groups
(1.1) Notwithstanding paragraph (1)(h), that paragraph does not apply where the application for an authorization is in relation to

(a) an offence under section 467.11, 467.111, 467.12 or 467.13;
(b) an offence committed for the benefit of, at the direction of or in association with a criminal organization; or
(c) a terrorism offence.

...


CCC

186.
...
Exception for criminal organizations and terrorism offences
(1.1) Notwithstanding paragraph (1)(b), 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, 467.12 or 467.13;
(b) an offence committed for the benefit of, at the direction of or in association with a criminal organization; or
(c) a terrorism offence.

...


CCC

Names and Identities of Persons

The authorization under s. 185(1)(e) and 186(4)(c) must name all "known" persons to the wiretap.

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".[1]

The names must be identified where it "may assist" the investigation.[2]

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.[3]

There are no requirements for categories of "known persons".[4] However, distinctions between types of "known persons" can be of use in describing the facts supporting the wiretap.[5]

  1. see R v Giles, 1992 CanLII 403 (BC SC)
    R v Chesson (1988), 1988 CanLII 54 (SCC), 43 CCC (3d) 353 (S.C.C.)
  2. Chesson
  3. R v Mahal, 2012 ONCA 673 (CanLII) at paras 86 to 88
  4. R v Riley, 2009 CanLII 7177 (ON SC), at para 221
    Mahal at para 90
  5. Mahal at para 90

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.[1]

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.[2]

Unknown Locations
Where the location is unknown, there is some ability to use basket (or "resort to") clauses.[3]

  1. R v Riley, 2009 CanLII 7177 (ON SC) at para 253 ("the residences and motor vehicles of named targets, as well as unknown places that they may resort to, are typically included in authorizations without challenge")
  2. R v Mahal, 2012 ONCA 673 (CanLII) at para 107
  3. R v Thompson, [1990] 2 SCR 1111, 1990 CanLII 43 (SCC)

Application Procedure

An application under s. 186 must include a sworn affidavit by a "peace officer" or "public officer".[1]

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))
  1. see s. 185(1)

Time Limitation

185
...
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) 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), 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), 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).
Where extension not granted
(4) Where the judge to whom an application for an authorization and an application referred to in subsection (2) are made refuses to fix a period in substitution for the period mentioned in subsection 196(1) or where the judge fixes a period in substitution therefor that is less than the period set out in the application referred to in subsection (2), the person appearing before the judge on the application for the authorization may withdraw the application for the authorization and thereupon the judge shall not proceed to consider the application for the authorization or to give the authorization and shall return to the person appearing before him on the application for the authorization both applications and all other material pertaining thereto.
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.


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Renewals

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

186.
...
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 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) still obtain, but no renewal shall be for a period exceeding sixty days.
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.


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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.[1] It is not a question of whether there is reasonable grounds to lay changes.[2]

An affiant should be not only full and frank but also ‘clear and concise’”[3]

  1. R v Finlay and Grellette 1985 CanLII 117 (ON CA), (1985), 52 O.R. (2d) 632 (C.A.), at p. 656
    R v Schreinert 2002 CanLII 44932 (ON CA), (2002), 165 CCC (3d) 295 (Ont. C.A.), at para 43
    R v Ebanks, 2009 ONCA 851 (CanLII) at para 33
  2. supra
  3. R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992 at para 46