View source for One-Party Consent Intercept Authorizations

[[fr:%C3%89coutes_t%C3%A9l%C3%A9phoniques_de_consentement]]
{{Currency2|January|2023}}
{{LevelZero}}{{HeaderWiretaps}}
==General Principles==
Under 184.2, a person may intercept any private communication where one party consents to the interception.
{{quotation3|
; Interception with consent
184.2 (1)  A person may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication where either the originator of the private communication or the person intended by the originator to receive it has consented to the interception and an authorization has been obtained pursuant to subsection (3) {{AnnSec1|184.2(3)}}.
<br>
{{removed|(2)}}
(3)  An authorization may be given under this section if the judge to whom the application is made is satisfied that
:(a)  there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed;
:(b)  either the originator of the private communication or the person intended by the originator to receive it has consented to the interception; and
:(c)  there are reasonable grounds to believe that information concerning the offence referred to in paragraph (a) will be obtained through the interception sought.

{{removed|(4) and (5))}}
{{LegHistory90s|1993, c. 40}}, s. 4.
|{{CCCSec2|184.2}}
|{{NoteUp|184.2|1|3}}
|{{Terms-
|"authorization" (s. 183)
|"electro-magnetic, acoustic, mechanical or other device" (s. 183)
|"intercept" (s. 183)
}}
}}

; Not an Offence
While it can be a criminal offence to intercept a communication, s. 184(2)(a) exempts inteceptions that are with the consent of one of the parties to teh communication.<ref>
R v Goldman (1979) 51 CCC (2d) 1 at 17
</ref>

; All Offences are Eligible
A consent wiretap does not need to be in relation to an [[List of Designated Wiretap Eligible Offences|offence listed under s. 183]]. 

; No Wiretap Agent Needed
It does not need to be applied for by a designated wiretap agent.

; History
This section was added to the Code in 1993 in response to the decision of {{CanLIIRP|Duarte|1fszz|1990 CanLII 150 (SCC)|[1990] 1 SCR 30}}{{perSCC|La Forest J}}, which held that there can be a violation of s.8 when an interception occurs with the consent of one of the parties.

; Constitutionality
It is necessary that limitation be placed on any OPC authorization, as it is not permitted for the consenting party cannot become a "walking microphone".<Ref>
{{CanLIIR|Lee|1z11l|2002 BCSC 1912 (CanLII)}}{{atL|1z11l|7}}<br>
{{CanLIIR-N|Monte|, [1993] O.J. No. 4174 (Ont. S.C.)}}<br>
</ref>

Section 184.2 does not violate s. 8 of the Charter for not requiring "investigative necessity" before authorizing a search.<ref>
{{CanLIIRP|Largie|2c14p|2010 ONCA 548 (CanLII)|258 CCC (3d) 297}}{{perONCA-H|Watt JA}} leave to SCC denied<br>
{{CanLIIRP|Bordage|1fbxr|2000 CanLII 6273 (QC CA)|146 CCC (3d) 549}}{{TheCourt}}{{atsL|1fbxr|36| to 40}}<br>
{{CanLIIRPC|Doiron c R|1rnqn|2007 NBCA 41 (CanLII)|221 CCC (3d) 97}}{{perNBCA| Deschênes JA}}{{atsL|1rnqn|43| to 45}}
</ref>

{{reflist|2}}
===Three or More Party Communications===
{{quotation3|
; Consent to interception
183.1 Where a private communication is originated by more than one person or is intended by the originator thereof to be received by more than one person, a consent to the interception thereof by any one of those persons is sufficient consent for the purposes of any provision of this Part {{AnnSec|Part VI}}.
<br>
{{LegHistory90s|1993, c. 40}}, s. 2.
|{{CCCSec2|183.1}}
|{{NoteUp|183.1}}
|{{Terms-
|"intercept" (s. 183)
|"private communication" (s. 183)
}}
}}

===Participant Surveillance===
"Participant surveillance" refers to "electronic surveillance in which one of the parties to a conversation, usually an undercover police officer or a police informer, surreptitiously records it."<ref>  
{{CanLIIRP|Duarte|1fszz|1990 CanLII 150 (SCC)|[1990] 1 SCR 30}}{{perSCC|La Forest J}}
</ref>
Any form of "participant surveillance" requires a Part VI wiretap warrant.<ref>
{{ibid1|Duarte}}("surreptitious electronic surveillance ... constitutes an unreasonable search or seizure under s. 8 of the Charter")</ref>

Online undercover work does not generally constitute a form of "participant surveillance."<ref>
See [[Computer-related Search Issues#Police Undercover Investigations|Online Undercover Investigations]]
</ref>
{{Reflist|2}}

==="Cell Shot" Intercept===
An investigative technique known as a "cell shot" is a surreptitious recording of a detainee's activities and conversations. These generally requires a Part VI wiretap authorization.<ref>
{{CanLIIRx|Horning|29c6p|2006 ABQB 669 (CanLII)}}{{perABQB|Watson J}}{{atL|29c6p|29}}<br>
</ref>

{{reflist|2}}

==Procedure==
The affiant must set out the following:
# he had reasonable grounds to believe an offence "has been or will be committed";
# the particulars of the offence;
# the identity of the persons whose private communications are to be intercepted;
# the "place" where the private communications are to be intercepted;
# terms and conditions of the intercepts that are "in the public interest";
# the period of the authorization up to 60 days.

The applicant can be any "peace officer" or "public officer" who enforces federal or provincial law. It does not require a designation as a wiretap agent.<ref>see s. 184.2(2) ("...authorization under this section shall be made by a peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament...")</ref>

The authorizing court can be a "provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552."<ref>
see s. 184.2(2)
</ref>

{{quotation3|
184.2<br>
{{removed|(1)}}
; Application for authorization
(2) An application for an authorization under this section shall be made by a peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, ex parte and in writing to a provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 {{AnnSec5|552}}, and shall be accompanied by an affidavit, which may be sworn on the information and belief of that peace officer or public officer or of any other peace officer or public officer, deposing to the following matters:
:(a) that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed;
:(b) the particulars of the offence;
:(c) the name of the person who has consented to the interception;
:(d) the period for which the authorization is requested; and
:(e) in the case of an application for an authorization where an authorization has previously been granted under this section or section 186 {{AnnSec1|186}}, the particulars of the authorization.
{{removed|(3), (4) and (5)}}
{{LegHistory90s|1993, c. 40}}, s. 4.
{{Annotation}}
|{{CCCSec2|184.2}}
|{{NoteUp|184.2|2}}
|{{Terms-
|"authorization" (s. 183)
|"intercept" (s. 183)
|"private communication" (s. 183)
}}
}}

===Terms of Order===
{{quotation3|
184.2<br>
{{removed|(1) and (2)}}
; Content and limitation of authorization
(4) An authorization given under this section 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 the terms and conditions that the judge considers advisable in the public interest; and
:(e) be valid for the period, not exceeding sixty days, set out therein.

{{removed|(5)}}
{{LegHistory90s|1993, c. 40}}, s. 4.
{{Annotation}}
|{{CCCSec2|184.2}}
|{{NoteUp|184.2|4}}
|{{Terms-
|"authorization" (s. 183)
|"intercept" (s. 183)
|"private communication" (s. 183)
}}
}}

===Notice Requirements===
There are no requirements for notice to the subject to a consent wiretap, unlike Third-party wiretaps. This feature of the provision does not violate the Charter.<ref>
{{CanLIIRx|Niemi|fvqkc|2012 ONSC 5684 (CanLII)}}{{perONSC|Boswell J}}
</ref>

However, it should be noted that there ''is'' a notice requirement for the Crown upon defence, if they intend to admit the evidence in a criminal proceeding.<ref>
see [[Admitting Wiretap Evidence]] (s. 189)
</ref>
{{reflist|2}}
===Other Warrants Granted===
{{quotation3|
; Interception with consent
184.2 <br>
{{removed|(1), (2), (3) and (4)}}
; Related warrant or order
(5) 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 {{AnnSec4|487}}, 487.01 {{AnnSec4|487.01}}, 487.014 to 487.018 {{AnnSec4|487.014 to 487.018}}, 487.02 {{AnnSec4|487.02}}, 492.1 {{AnnSec4|492.1}} and 492.2 {{AnnSec4|492.2}} if the judge is of the opinion that the requested warrant or order is related to the execution of the authorization.
<br>
{{LegHistory90s|1993, c. 40}}, s. 4; 
{{LegHistory10s|2014, c. 31}}, s. 8.
{{Annotation}}
|{{CCCSec2|184.2}}
|{{NoteUp|184.2|1|5}}
|{{Terms-
|"authorization" (s. 183)
}}
}}

==Application by Telewarrant==
* [[Intercept Application by Telewarrant]]