Third Party Wiretaps

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2023. (Rev. # 91063)

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), 107 CCC (3d) 385, per Rosenberg JA
  2. ↑ This is the same as all warrants, see Applying for Judicial Authorizations,
    R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per LeBel J (9:0), at paras 46 to 47
    R v Agensys International Inc, 2004 CanLII 17920 (ON CA), 71 OR (3d) 515, per Gillese JA, at paras 42 to 43
  3. ↑ R v Bogiatzis, 2003 CanLII 46485 (ON CA), [2003] O.J. No. 3335 (SCJ), per Morden JA, at para 11
  4. ↑ R v Dixon, 2012 ONSC 181 (CanLII), per Taliano J

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 [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)


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), (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;
(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) [authorization of wiretap – installation and removal of devices] 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.

[omitted (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), (5), (5.1), and (5.2)

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]

  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

Lawyer Exception

See also: Solicitor-Client Privilege

186
[omitted (1), (1.1) and (1.2)]

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.
[omitted (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(2)

Places that are "ordinarily used" by lawyers concerns places where "lawyers may be when they ordinarily consult with clients", which would not include telephones on the jail ranges.[1]

The interception is not "at" the restricted place where the wiretap is intercepting the cellphone calls of the accused.[2]

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.[3]

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."[4] 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.[5]

A fishing expedition is not a proper basis to authorize the wiretap.[6]

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.[7]

  1. ↑ R v Blais, 2004 CanLII 8466 (ON CA), 182 CCC (3d) 39, per Rosenberg JA
  2. ↑ R v Taylor, 1998 CanLII 836 (SCC), [1998] 1 SCR 26, per Bastarache J, affirming [1997] BCJ 346 (BCCA)
  3. ↑ R v Pires; R v Lising, 2005 SCC 66 (CanLII), [2005] 3 SCR 343, per Charron J, at para 41
  4. ↑ R v Madrid, 1994 CanLII 1682 (BCCA), [1994] BCJ No 1786, per McEachern JA (3:0) at 82
  5. ↑ R v Thompson, 1990 CanLII 43 (SCC), [1990] 2 SCR 1111, per Sopinka J, at p. 1139
  6. ↑ see R v Finlay and Grelette, 1985 CanLII 117 (ON CA), 52 OR (2d) 632 (CA), per Martin JA
  7. ↑ R v Della Penna, 2012 BCCA 3 (CanLII), 286 CCC (3d) 174, per Hall JA, at para 26

Best Interests of the Administration of Justice or Reasonable and Probable Grounds

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"

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]

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]

  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
  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

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

[omitted (a)]
(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), (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.

– CCC (CanLII), (DOJ)

Note up: 186(1)

Consideration of necessity balances the needs of the criminal investigationsa against protecting privacy rights.[1]

The police has the duty to inform the judge of the progress of the investigation and the reasons why other techniques are not viable in the circumstances.[2]

There are three ways to establish investigative necessity. The applicant must establish:[3]

  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.[4]

Necessity requires "no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry."[5]

The consideration must be based on the "context of the whole investigation" and "not on a target by target basis or each known person's involvement."[6]

  1. ↑ R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per LeBel J (9:0), at paras 22 and 26
    R v Andrews, Leyva and Hamid, 2020 ONSC 49 (CanLII), per Petersen J, at para 24
  2. ↑ Andrews, Leyva and Hamid, ibid., at para 24
    {{CanLIIRP|Morrison|g97g6|1989 CanLII 7114 (ON CA)|50 CCC (3d) 353, per Morden JA, at p. 369
  3. ↑ R v Pham, 2009 CanLII 60792 (ON SC), per Hill J, at para 89
    R v Duarte, 1990 CanLII 150 (SCC), [1990] 1 SCR 30, per La Forest J
    Araujo, supra, at para 34
  4. ↑ R v Smyk et al., 1993 CanLII 3370 (MB CA), 86 CCC (3d) 63, per Philp JA (3:0), at para 70
  5. ↑ Araujo, supra, at para 29
  6. ↑ R v Tahirkheli, 1998 CanLII 6243 (ON CA), (1998) 130 CCC (3d) 19, per Finlayson and Labrosse JJA, at p. 22 (ONCA)
    Mahal, supra, at and 76 paras 42 and 76{{{3}}}

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, per LeBel J (9:0), at paras 29 and 34

The consideration of necessity involves "regard both to the nature and purpose of the particular investigation which the police wish to undertake."[1]

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.[2]

The judge should consider the effectiveness and danger associated with using alternate means such as surveillance and informers.[3]

  1. ↑ Araujo, ibid., at para 29
  2. ↑ R v Paris and Normand, 2006 CanLII 11655 (ON CA), 69 WCB (2d) 743, per MacFarland JA, at para 22
  3. ↑ R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per LeBel J (9:0), 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), 130 CCC (3d) 19, per Finlayson and Labrosse JJA, at para 22
  2. ↑ R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per LeBel J (9:0), at paras 40, 43

Exceptions for Criminal Organizations and Terrorism Offences

185
[omitted (1)]

Exception for criminal organizations and terrorist groups

(1.1) Notwithstanding paragraph (1)(h) [requirements for a 186 wiretap – no reasonable alternative], that paragraph does not apply where the application for an authorization 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.

[omitted (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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 185(1.1)

186
[omitted (1)]

Exception for criminal organizations and terrorism offences

(1.1) Notwithstanding paragraph (1)(b) [authorization of wiretap – exhaustion of alternatives], 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 [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.

[omitted (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(1.1)

Names and Identities of Persons

The authorization under s. 185(1)(e) and 186(4)(c) must name all "known" persons to the wiretap. Failure to set out sufficient evidence to name the accused as the subject of the wiretap would violate the accused s. 8 Charter rights.

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 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.[2]

The threshold requirement is a "modest one" that is short of reasonable and probable grounds (RPG) to believe the person was involved in the offence committed. The investigators merely need to "know" the identity of the person and have "reasonable and probable grounds to believe that the interception of that person’s private communications may assist the investigation of an offence".[3] The key connection is that the known person has a nexus (or link) with the offence in that the evidence of the person "may assist" in the investigation.[4]

There is no requirement that the person be implicated in the offence. They may be completely innocent third parties.[5]g32tm

There are no requirements for categories of "known persons."[6] However, distinctions between types of "known persons" can be of use in describing the facts supporting the wiretap.[7]

  1. ↑ see R v Giles, 1992 CanLII 403 (BC SC), per Gow J
    R v Chesson, 1988 CanLII 54 (SCC), 43 CCC (3d) 353, per McIntyre J (4:0)
  2. ↑ R v Mahal, 2012 ONCA 673 (CanLII), 292 CCC (3d) 252, per Watt JA, at paras 86 to 88
  3. ↑ Mahal, ibid., at paras 71 to 72
  4. ↑ Mahal, supra, at para 83 ("...185(1)(e) posits a nexus between the communications of ‘known’ persons and the offences under investigation. The section captures the nexus in its terms “may assist in the investigation of the offence".")
    Chesson, ibid.
    R v Nugent, 2005 CanLII 790 (ON CA), [2005] OJ No 141, at para 9 ("The trial judge should have determined whether the information remaining in the affidavit (after excising the inaccurate information) provided a sufficient link between Nugent and the offences, or between Nugent and others involved in the offences, to provide reasonable grounds to conclude that the interception of his communications could assist in the investigation of those robberies.")
  5. ↑ R v Abdirahim, 2013 ONSC 7420 (CanLII), [2013] O.J. No. 6170, per Code J, at para 50
  6. ↑ R v Riley, 2009 CanLII 7177 (ON SC), per Dambrot J, at para 221
    Mahal, supra, at para 90
  7. ↑ Mahal, supra, 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), per Dambrot J, 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), 292 CCC (3d) 252, per Watt JA, at para 107
  3. ↑ R v Thompson, 1990 CanLII 43 (SCC), [1990] 2 SCR 1111, per Sopinka J

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"

Terms and Conditions

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

Terms and conditions

(3) Where an authorization is given in relation to the interception of private communications at a place described in subsection (2) [authorization of wiretap – prohibition on lawyers], 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.

[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(3) and (4)

"Live Monitoring"

The judge may include a "live monitoring" condition upon the wiretap that would require a person to monitor the recording of the wiretap in order to ensure that no recording is being done of any communications of parties other than the party or parties designated as authorized by the wiretap. This would be most likely applied to wiretap of phones that are potentially in use by a multitude of persons such as a public phone or office phone.[1]

"Put Away" Term

A "put away" term is a condition that would require limited live monitoring for a short period of time, such as a couple of minutes, in order to ensure that the parties on the conversation are the proper parties, after which no live monitoring would be required.[2]

Time Limitation

185
[omitted (1) and (1.1)]

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) [written notification to the target] 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) [annual report on wiretaps – information respecting s. 185 and 188 interceptions], 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) [written notification to the target], 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) [written notification to the target].

Where extension not granted

(4) If the judge to whom an application for an authorization and an application referred to in subsection (2) [annual report on wiretaps – information respecting s. 185 and 188 interceptions] are made refuses to fix a period in substitution for the period mentioned in subsection 196(1) [written notification to the target] or if the judge fixes a shorter period than the one set out in the application referred to in subsection (2) [annual report on wiretaps – information respecting s. 185 and 188 interceptions], the person submitting the application for the authorization may withdraw that application and, if it is withdrawn, the judge shall not proceed to consider it or to give the authorization and shall destroy, or return to that person, both applications and all other material pertaining to them.
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(2), (3) and (4)

  1. ↑ R v Ansari, 2010 ONSC 1316 (CanLII), 224 CRR (2d) 288, per Dawson J
  2. ↑ R v Peluso, 2010 ONSC 1952(*no CanLII links)

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)

Terrorism Offences

Time limitation in relation to criminal organizations and terrorism offences

186.1 Notwithstanding paragraphs 184.2(4)(e) [one-party consent wiretap – limitations – duration] and 186(4)(e) [one-party consent wiretap – limitations – duration] and subsection 186(7) [renewal not permitted beyond 60 days], an authorization or any renewal of an authorization may be valid for one or more periods specified in the authorization exceeding sixty days, each not exceeding one year, where the authorization 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.

1997, c. 23, s. 6; 2001, c. 32, s. 7, c. 41, ss. 7, 133; 2014, c. 17, s. 5.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 186.1

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.[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]

Constitutionality

The standard of "may assist the investigation" as proof is constitutional.[4]

  1. ↑ 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
  2. ↑ supra
  3. ↑ R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per LeBel J (9:0), at para 46
  4. ↑ 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

Appointed Wiretap Judges

Applications to specially appointed judges

188 (1) Notwithstanding section 185, an application made under that section for an authorization may be made ex parte to a judge of a superior court of criminal jurisdiction, or a judge as defined in section 552 [definitions - judges], designated from time to time by the Chief Justice, by a peace officer specially designated in writing, by name or otherwise, for the purposes of this section by

(a) the Minister of Public Safety and Emergency Preparedness, if the offence is one in respect of which proceedings, if any, may be instituted by the Government of Canada and conducted by or on behalf of the Attorney General of Canada, or
(b) the Attorney General of a province, in respect of any other offence in the province,

if the urgency of the situation requires interception of private communications to commence before an authorization could, with reasonable diligence, be obtained under section 186 [authorization of wiretap].

Authorizations in emergency

(2) Where the judge to whom an application is made pursuant to subsection (1) [emergency wiretaps – process] is satisfied that the urgency of the situation requires that interception of private communications commence before an authorization could, with reasonable diligence, be obtained under section 186, he may, on such terms and conditions, if any, as he considers advisable, give an authorization in writing for a period of up to thirty-six hours.
(3) [Repealed, 1993, c. 40, s. 8]

Definition of Chief Justice

(4) In this section, Chief Justice means

(a) in the Province of Ontario, the Chief Justice of the Ontario Court;
(b) in the Province of Quebec, the Chief Justice of the Superior Court;
(c) in the Provinces of Nova Scotia, British Columbia and Prince Edward Island, and in the Yukon and the Northwest Territories, the Chief Justice of the Supreme Court;
(d) in the Provinces of New Brunswick, Manitoba, Saskatchewan and Alberta, the Chief Justice of the Court of Queen’s Bench;
(e) in the Province of Newfoundland and Labrador, the Chief Justice of the Supreme Court, Trial Division; and
(f) in Nunavut, the Chief Justice of the Nunavut Court of Justice.
Inadmissibility of evidence

(5) The trial judge may deem inadmissible the evidence obtained by means of an interception of a private communication pursuant to a subsequent authorization given under this section, where he finds that the application for the subsequent authorization was based on the same facts, and involved the interception of the private communications of the same person or persons, or related to the same offence, on which the application for the original authorization was based.

Related warrant or order

(6) 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 [general warrants], 487.014 to 487.018 [production orders], 487.02 [assistance order], 492.1 [tracking warrants] and 492.2 [warrant for transmission data recorder] if the judge is of the opinion that the requested warrant or order is related to the execution of the authorization, that the urgency of the situation requires the warrant or the order and that it can be reasonably executed or complied with within 36 hours.

R.S., 1985, c. C-46, s. 188; R.S., 1985, c. 27 (1st Supp.), ss. 25, 185(F), c. 27 (2nd Supp.), s. 10; 1990, c. 17, s. 10; 1992, c. 1, s. 58, c. 51, s. 35; 1993, c. 40, s. 8; 1999, c. 3, s. 28; 2002, c. 7, s. 140; 2005, c. 10, s. 34; 2014, c. 31, s. 11; 2015, c. 3, s. 47; 2017, c. 33, s. 255.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 188(1), (2), (4), (5), and (6)

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