Third-Party Intercept Authorizations

From Criminal Law Notebook
(Redirected from Third Party Wiretaps)
This page was last substantively updated or reviewed January 2023. (Rev. # 96325)

General Principles

Requirements

A judge may grant authorization under ss. 185 and 186 should they be satisfied that:

  1. "it would be in the best interests of the administration of justice" (186(1)) and
  2. there is investigative necessity
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) and , (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)

Note up: 186(1)

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)

Note up: 185(1)

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."[1]

The authorizing judge may issue other warrants or orders at the same time where they are "related to the execution of the authorization."[2]

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”.[3] This requirement is lower than a standard of a prima facie case or proof on balance that an offence has been committed.[4]

Prospective Offences

Notably this does not permit belief of future offences.[5] However, it is reasonable to rely on the "speculative" nature of communications sought to be captured for probable cause.[6]

Where no offence has been committed or is being committed, s. 186 is not available.[7]

Telewarrant

The application by telewarrant may be available under s. 184.3.[8]

  1. ↑ R v Mahal, 2012 ONCA 673 (CanLII), 292 CCC (3d) 252, per Watt JA, at para 39 ("...the conditions precedent that must be satisfied before a judge of a superior court of criminal jurisdiction may grant a conventional authorization are contained in s. 186(1) of [page218] the Criminal Code. For discussion purposes, serviceable short-form descriptions are as follows: (i) probable cause; and (ii) investigative necessity.")
    R v Beauchamp, 2015 ONCA 260 (CanLII), 326 CCC (3d) 280, per curiam (3:0), at para 81
  2. ↑ 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.")
  3. ↑ Beauchamp, supra, at para 91
  4. ↑ Beauchamp, supra, at para 92
  5. ↑ R v Lucas, 2014 ONCA 561 (CanLII), 313 CCC (3d) 159, per curiam
    see also R v Tse, 2012 SCC 16 (CanLII), [2012] 1 SCR 531, per Moldaver and Karakatsanis JJ, at paras 77 to 78
    Beauchamp, supra, at para 92 ("an essential constituent of the probable cause requirement is a reasonably grounded belief that a listed offence has been or is being committed")
    by contrast s. 184.2(3)(a) relates to offences that "will be committed".
  6. ↑ Beauchamp, supra, at para 93
  7. ↑ Tse, supra, at paras 77 to 78
  8. ↑ see Intercept Application by Telewarrant

Elements of an Application

See also: Applications for Judicial Authorizations

The affidavit supporting an application under s. 185 and 186 should include the following:

  1. "facts relied on to justify belief" that authorization is allows (185(1)(c))
  2. "particulars of the offence" (185(1)(c))
  3. "type of private communication proposed to be intercepted" (185)(1)(d))
  4. "names, addresses and occupations, if known, of all persons" where there is RPG "private communications ... may assist the investigation" (185(1)(e))
  5. "a general description of the nature and location of the place, if known, at which private communications are proposed to be intercepted" (185(1)(e))
  6. "general description of the manner of interception proposed to be used," (185(1)(e))
  7. "numer of instances", date of application, and name of judge who has previously received a s. 186 application relating to any named offence and a "person named" (185(1)(f))
  8. "the period for which the authorization is requested" (185(1)(g)), and
  9. investigative necessity (185(1)(h))

Concurrent Orders

A judge authorizing a wiretap under 186 can also grant other authorizations:[1]

  • Search warrant (487)
  • General Warrant (487.01)
  • Production Order (487.014)
  • Trace Specified Communications Production (487.015)
  • Transmission Data Production Orders (487.016)
  • Production Orders for Tracking Data (487.017)
  • Tracking Warrant (492.1)
  • Transmission Data warrnat (492.2)
  1. ↑ see 186(8)

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.

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

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.
[omitted (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)

Note up: 186(1), (4) and (5)

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

Role of Agent

The Crown agent does not have a "duty to undertake a thorough investigation into the investigative file." R v Ebanks, 2009 ONCA 851 (CanLII), at para 47 ("The Crown agent does not, however, have a duty to undertake a thorough investigation into the investigative file.") </ref>

Parliament added a crown agent requirement to "ensure … Fix that that the application makes out the reasonable grounds and investigative necessity requirements … And attending chambers to answer questions that the application judge may have."[1]

Signature

The agent signing the application does not have to include any materials proving that they are authorized.[2]

  1. ↑ Ebanks, ibid.
  2. ↑ R v Barbeau (1996), 110 C.C.C.(3d) 69 (Que. C.A.)
    R v Harrison, 1976 CanLII 3 (SCC) at page 285 (SCR) also R v Blizzard, 2002 NBCA 13 (CanLII)

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]

"may assist"

In addition to the requirements of investigative necessity and best interests in the administration of justice, the standard of proof for a wiretap is whether there are "reasonable grounds to believe that the interception of [the known persons'] communications may assist in the investigation of the offence".[6]

  1. ↑ R v Pires; R v Lising, 2005 SCC 66 (CanLII), [2005] 3 SCR 343, per Charron J, at para 41
  2. ↑ R v Madrid, 1994 CanLII 1682 (BCCA), [1994] BCJ No 1786, per McEachern JA (3:0) at 82
  3. ↑ R v Thompson, 1990 CanLII 43 (SCC), [1990] 2 SCR 1111, per Sopinka J, at p. 1139
  4. ↑ see R v Finlay and Grelette, 1985 CanLII 117 (ON CA), 52 OR (2d) 632 (CA), per Martin JA
  5. ↑ R v Della Penna, 2012 BCCA 3 (CanLII), 286 CCC (3d) 174, per Hall JA, at para 26
  6. ↑ R v Ebanks, 2009 ONCA 851 (CanLII), per MacPherson JA, at para 33
    see R. v. Finlay and Grellette (1985), 1985 CanLII 117 (ON CA), 52 O.R. (2d) 632, [1985] O.J. No. 2680 (C.A.), at p. 656 O.R.
    R. v. Schreinert, 2002 CanLII 44932 (ON CA), [2002] O.J. No. 2015, 165 C.C.C. (3d) 295 (C.A.), at para. 43

Affiant

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

There is no expectation that the grounds for a wiretap be sufficient to charge anyone with the named offences.[2]

  1. ↑ R v Hosie, 1996 CanLII 450 (ON CA), 107 CCC (3d) 385, per Rosenberg JA
  2. ↑ R v Ebanks, 2009 ONCA 851 (CanLII), per MacPherson JA, at para 33

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". In this context, it has two components:[1]

  1. that the judge is satisfied that "the authorization will further or advance the objectives of justice" and
  2. the "balancing of the interests of law enforcement and the individual’s interest in privacy"
  1. ↑ R v Finlay and Grellette, 1985 CanLII 117 (ON CA), 23 CCC (3d) 48, per Martin JA, at p. 70 ("Although the term “in the best interests of the administration of justice” is incapable of precise definition it imports, in my view, in the context, two readily identifiable and mutually supportive components. The first component is that the judge must be satisfied that the granting of the authorization will further or advance the objectives of justice. The second component imports a balancing of the interests of law enforcement and the individual’s interest in privacy.")

Probable Cause / Reasonable Ground to Believe

See also: Information to Obtain a Judicial Authorization

Section 186(1)(a) 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"

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.[4]


  1. ↑ R v Finlay and Grellette, 1985 CanLII 117 (ON CA), 23 CCC (3d) 48, per Martin JA, at p. 72, leave to appeal refused
  2. ↑ see R v Beauchamp, 2015 ONCA 260 (CanLII), 326 CCC (3d) 280, per curiam, at para 91
    R v Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421, per Sopinka J, at paras 34 to 36
    R v Belleus, 2016 ONSC 6509 (CanLII) (working hyperlinks pending), per Phillips J, at para 4
  3. ↑ R v Mahal, 2012 ONCA 673 (CanLII), 292 CCC (3d) 252, per Watt JA, at paras 40 and 75
    Belleus, supra, at para 4
  4. ↑ Beauchamp, supra, at para 93

Investigative Necessity

Types of Offences and Communications

See also: List of Designated Wiretap Eligible Offences

The authorization must state the offence or offences that are being investigated by the interception. The offences must only be those listed under s. 183 as "designated offences".[1]

186
[omitted (1), (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;

[omitted (c), (d) and (e) [see Terms and Conditions]]

[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)

Note up: 186(1), (4) and (5)

"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.[2] It will include any conspiracies, attempts or counselling to commit the offence, or any accessories after the fact.[3]

  1. ↑ [[List of Designated Wiretap Eligible Offences]
  2. ↑ See Criminal Code and Related Definitions
  3. ↑ see s. 183 definition of "offence"

Persons, Places and Manner of Interception

Terms and Conditions

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) which states in part "An application... shall be accompanied by an affidavit"

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)

Note up: 186(6), (7) and (8)

Terms Remain

A renewal of an order must be in the same terms as the initial one.[1]

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.[2] It is not a question of whether there is reasonable grounds to lay changes.[3]

An affiant should be not only full and frank but also ‘clear and concise’”[4]

Constitutionality

The standard of "may assist the investigation" as proof is constitutional.[5]

  1. ↑ R v Badovinac, 1977 CanLII 2095 (ON CA), 34 CCC (2d) 65 ("There is no power in the statute to extend, modify, add to or otherwise deal with any feature of the authorization beyond simply extending the period of time within which it is effective.")
  2. ↑ R v Finlay and Grellette, 1985 CanLII 117 (ON CA), 52 OR (2d) 632 (CA), per Martin JA, at p. 656
    R v Schreinert, 2002 CanLII 44932 (ON CA), 165 CCC (3d) 295, per Simmons JA, at para 43
    R v Ebanks, 2009 ONCA 851 (CanLII), 249 CCC (3d) 29, per MacPherson JA (3:0), at para 33
  3. ↑ supra
  4. ↑ R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per LeBel J (9:0), at para 46
  5. ↑ Baron v Canada, 1993 CanLII 154 (SCC), [1993] 1 SCR 416, per Sopinka J (6:0)
    Canada (Attorney General) v CanadianOxyChemicals Ltd, 1999 CanLII 680 (SCC), [1999] 1 SCR 743, per Major J (7:0)

Notice Requirements

See also: Warrantless Wiretaps#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)

Note up: 196(1), (2), (3), (4), and (5)

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

v • e
 
Types of Warrants
Warrants
Interceptions/Wiretaps
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