Intercept Drafting Checklist

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Documents

• collection of investigative source documents

Elements of Draft Order

Title

• Proper province cited
• Proper level of court cited
• Proper internal file number cited
• Does it reference to the appropriate Code sections for a intercept? (third party: 185 and 186, etc)
• If omnibus warrant, does it cite the appropriate types and sections? (TDR: 492.2(1), Gen. Warrant: 487.01, Video Surveillance warrant: 487.01(4), Tracking Warrant: 492.1(1) and (2), Assistance Order 487.02, and sealing order to cover what is not captured by 187: 487.3)

• listed offences being investigated are eligible for intercept: see List of Designated Wiretap Eligible Offences

Recitals

• identifies date of application, person making application, type of application;
• identifies supporting affidavit including the name of author and date of swearing/affirming.
• identifies the justice being satisfied of elements for authorization, citing appropriate sections;

Persons

• does it list the same PKPs that are present in the affidavit?
• are PKPs identified properly (name, address, occupation)
• does it list the same OKPs that are present in the affidavit?
• are OKPs identified properly (name, address, occupation)
• basket clause re "unknown persons"

Places

• does it list the same Residences that are present in the affidavit?
• are Residences identified properly (address and unit #, city, province)
• does it list the same Business Places that are present in the affidavit?
• are Business Places identified properly (name, address and unit #, city, province)
• does it list the same Vehicles that are present in the affidavit?
• are Vehicles identified properly (make, model, year, colour, licence plate number, VIN number)

Contingency Places

• clauses incidental contact on a public phones;
• "resort to" clause;
• custodial clause.

Computers and Telecommunications

• does it list known phone numbers, owner, and any associated IMEI/IMSI.
• a "resort to" clause for mobile phones

Contingency Clauses

• clause for incidental contact with a lawyer;

Live Monitoring Clause

• identify which locations will be subject to live monitoring. This is particularly important for "resort to" locations.

Manner of Interception Clause

• briefly identifies the manner of intercept

Duration Clause

General Warrant

Adequacy of Grounds

There should be evidence similar to the grounds for a s. 487 warrant, such as:

• Evidence that shows the authorization "will afford evidence":
  • belief that the location, devices, and persons to be intercepted exist and can be described with specificity;
  • belief that the persons will be in the location or possess the devices;
  • belief that, if communications are intercepted, it will produce relevant evidence (e.g. reason to believe that the PKPs will be speaking about the relevant subject matter);

The 185/186 intercept warrant requires investigative necessity.

Identifications of places and people

3A's (PKP)

• Are there grounds to believe that the person's communications will assist in the investigation?
• Is the person's identity sufficiently identifiable (full name, DOB, occupation)?
• Is their mode of communication for intercepting known?
• Is there a place of intercept known?

3B's (OKP)

• Are there grounds to believe that the person will communicate with a 3A?
• Is the person's identity sufficiently identifiable (full name, DOB, occupation)?

3C's (unknown)

4A (residences)

4B (businesses)

4C (vehicles)

4D (telephones)

4E (other places)

4F (custodial locations)

4G (observation locations)

5A (mobile devices)

5B (telecom services)

5D (resort to clause)

• no longer requires live monitoring unless there is reason to believe the communication is shared between several people who are not 3As.

6A and 6B (solicitor privilege)

• ensure protocol for communications with counsel

6C (live monitoring)

6E's (fax)

6F (observation post)

Quality of Drafting

• Basic Warrant Affidavit Drafting Checklist

Investigative Plan

• list the forms of intercept that may be used
• review enumerated objectives:
  • do the objectives assist the investigation into the listed offences;
  • are the forms of intercept adequate for obtaining the objectives;

Investigative Necessity

• Consider techniques used and explain why those techniques did not produce the evidence that exists:
• Consider any issues with timing of results of other techniques and consequences such as tipping off the target.

Investigative Necessity -- Witnesses

• Exhaustive interviews:
  • have all known persons been interviewed
  • If so, have the interviews involved questions directed at the Part VI eligible offence?
  • If not, consider the adequacy of reasons:
    • safety to investigators;
    • circumstantial likelihood of non-cooperation;
    • circumstantial likelihood of not having relevant evidence;
    • risk of disclosing the nature of the investigation to target suspects;
• Has there been neighbourhood inquiries

Necessity -- Investigative Techniques

• use of forensics:
  • computer and mobile phone forensics
  • production from cloud / social media account (log-in credentials, IP addresses)
  • tracking dogs, cadaver dogs
  • blood splatter
  • sneak and peeks
  • record productions (business, mobile phones)
  • Tracking
  • identification forensics
    • DNA sampling (off person or elsewhere), finger-prints, bodily impression
• surveillance options
  • signs of surveillance awareness

Necessity -- Agents or Undercover

• the effectiveness of undercover or agency:
  • more than conclusory statements that are founded in the evidence.
• risk to the safety of UC or agents;

Tips

• Ensure that in the course of the authorization, the plan is followed. If there is "downtime" during the intercept between stims, there is an explanation for the delays.
• Make note of whether a General warrant for video recording is required.