Notice Requirements for Intercepts

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General Principles

Crown bears the burdne of proving on a balance of probabilities that police complied with the provisons concerning notice.

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)

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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