One-Party Consent Intercepts to Prevent Bodily Harm
| This page was last substantively updated or reviewed January 2015. (Rev. # 96247) |
- < Search and Seizure
- < Warrant Searches
- < Wiretaps
General Principles
Under s. 184.1 a peace officer may do a one-party consent intercept a private communication without judicial authorization. This is sometimes referred to as a "safety pack". The relevant provision states:
- 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.
[omitted (3) and (4) [see below] ]
1993, c. 40, s. 4.
[annotation(s) added]
This requires that:
- A participant is is acting as an "agent of the state";
- A consent of one or more of the parties to the interception;
- the agent reasonably believes there is a risk of bodily harm to the consenting party;
- 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.
- Definition of "agent of the state"
- 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.
- Telewarrant
The application by telewarrant may be available under s. 184.3.[1]
Admissibility of Record
The recording made under s. 184.1() cannot be used as evidence in any proceedings, except any proceeding relating to actual, attempted or threatened bodily harm. This exception will also permit the recording to be used for the purpose of search warrants or arrest warrants relating to the bodily harm.
184.1
[omitted (1) [see General Principles, above]]
- 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 [Pt. VI – Invasion of Privacy (ss. 183 to 196.1)] 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]
Possession of Record
Should the wiretap not intercept any relevant communications, the recording must be destroyed "as soon as practicable".
184.1
[omitted (1) and (2) [see above]]
- 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]
| ||||||||