One-Party Consent Intercept Authorizations: Difference between revisions

From Criminal Law Notebook
← Older edit
VisualWikitext
No edit summary
m Text replacement - "\{\{fr\|([^\}\}]+)\}\}" to "fr:$1"
 
(11 intermediate revisions by the same user not shown)
Line 1: Line 1:
{{fr|%C3%89coutes_t%C3%A9l%C3%A9phoniques_de_consentement}}
[[fr:%C3%89coutes_t%C3%A9l%C3%A9phoniques_de_consentement]]
{{Currency2|January|2023}}
{{Currency2|January|2023}}
{{LevelZero}}{{HeaderWiretaps}}
{{LevelZero}}{{HeaderWiretaps}}
Line 25: Line 25:
}}
}}


A consent wiretap does not need to be in relation to an [[List of Designated Wiretap Eligible Offences|offence listed under s. 183]]. It does not need to be applied for by a designated wiretap agent.
; 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
; History
Line 31: Line 40:


; Constitutionality
; 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>
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|Largie|2c14p|2010 ONCA 548 (CanLII)|258 CCC (3d) 297}}{{perONCA-H|Watt JA}} leave to SCC denied<br>
Line 96: Line 110:
:(d) the period for which the authorization is requested; and
:(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.
:(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)
}}
}}


{{removed|(3)}}
===Terms of Order===
{{quotation3|
184.2<br>
{{removed|(1) and (2)}}
; Content and limitation of authorization
; Content and limitation of authorization
(4) An authorization given under this section shall
(4) An authorization given under this section shall
Line 110: Line 138:
{{Annotation}}
{{Annotation}}
|{{CCCSec2|184.2}}
|{{CCCSec2|184.2}}
|{{NoteUp|184.2|2|4}}
|{{NoteUp|184.2|4}}
|{{Terms-
|{{Terms-
|"authorization" (s. 183)
|"authorization" (s. 183)
Line 116: Line 144:
|"private communication" (s. 183)
|"private communication" (s. 183)
}}
}}
}}
}}


; Notice Requirements
===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>
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}}
{{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>
</ref>
{{reflist|2}}
{{reflist|2}}
Line 143: Line 174:


==Application by Telewarrant==
==Application by Telewarrant==
 
* [[Intercept Application by Telewarrant]]
{{quotation3|
; Application — telecommunication producing writing
184.‍3 (1) A person who is permitted to make one of the following applications may submit their application by a means of telecommunication that produces a writing:
:(a) an application for an authorization under subsection 184.‍2(2) {{AnnSec1|184.2(2)}}, 185(1) {{AnnSec1|185(1)}}, 186(5.‍2) {{AnnSec1|186(5.2)}} or 188(1) {{AnnSec1|188(1)}};
:(b) an application for an extension under subsection 185(2) {{AnnSec1|185(2)}}, 196(2) {{AnnSec1|196(2)}} or 196.‍1(2) {{AnnSec1|196.1(2)}};
:(c) an application to renew an authorization under subsection 186(6) {{AnnSec1|186(6)}}.
 
; Sealing
(2) A judge who receives an application submitted by a means of telecommunication that produces a writing shall, immediately on the determination of the application, cause it to be placed and sealed in the packet referred to in subsection 187(1) {{AnnSec1|187(1)}}.
 
; Application — telecommunication not producing writing
(3) Despite anything in section 184.‍2 {{AnnSec1|184.2A}} or 188 {{AnnSec1|188}}, a person who is permitted to make an application for an authorization under subsection 184.‍2(2) or 188(1) may submit their application by a means of telecommunication that does not produce a writing if it would be impracticable in the circumstances to submit the application by a means of telecommunication that produces a writing.
 
; Statement of circumstances
(4) An application submitted by a means of telecommunication that does not produce a writing shall include a statement of the circumstances that make it impracticable to submit the application by a means of telecommunication that produces a writing.
 
; Oath
(5) Any oath required in connection with an application submitted by a means of telecommunication that does not produce a writing may be administered by a means of telecommunication.
 
; Recording and sealing
(6) A judge who receives an application submitted by a means of telecommunication that does not produce a writing shall record the application verbatim, in writing or otherwise, and shall, immediately on the determination of the application, cause the writing or recording to be placed and sealed in the packet referred to in subsection 187(1) {{AnnSec1|187(1)}}, and a recording sealed in a packet shall be treated as if it were a document for the purposes of section 187 {{AnnSec1|187}}.
 
; Limitation
(7) If an application is submitted by a means of telecommunication that does not produce a writing, the judge shall not give the authorization unless he or she is satisfied that the application discloses reasonable grounds for dispensing with its submission by a means of telecommunication that produces a writing.
 
; Giving authorization, etc.
(8) A judge who gives the authorization, extension or renewal may do so by a means of telecommunication, in which case
:(a) the judge shall complete and sign the document in question, noting on its face the time and date;
:(b) if the means of telecommunication produces a writing, the judge shall transmit a copy of the document to the applicant by that means;
:(c) if the means of telecommunication does not produce a writing, the applicant shall, as directed by the judge, transcribe the document, noting on its face the name of the judge as well as the time and date; and
:(d) the judge shall, immediately after the authorization, extension or renewal is given, cause the document to be placed and sealed in the packet referred to in subsection 187(1) {{AnnSec1|187(1)}}.
 
{{LegHistory90s|1993, c. 40}}, s. 4;
{{LegHistory20s|2022, c. 17}}, s. 6.
{{Annotation}}
|{{CCCSec2|184.3}}
|{{NoteUp|184.3|1|2|3|4|5|6|7|8}}
|{{Terms-
|"authorization" (s. 183)
|"telecommunications" (s. 35 IA)
}}
}}
 
===Old Version Prior to 2023===
{{quotation2|
; Application by means of telecommunication
184.3 (1) Notwithstanding section 184.2 {{AnnSec1|184.2A}}, an application for an authorization under subsection 184.2(2) {{AnnSec1|184.2(2)}} may be made ex parte to a provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 {{AnnSec5|552}}, by telephone or other means of telecommunication, if it would be impracticable in the circumstances for the applicant to appear personally before a judge.
<br>
; Application
(2) An application for an authorization made under this section shall be on oath and shall be accompanied by a statement that includes the matters referred to in paragraphs 184.2(2)(a) to (e) {{AnnSec1|184.2(2)(a) to (e)}} and that states the circumstances that make it impracticable for the applicant to appear personally before a judge.
<br>
; Recording
(3) The judge shall record, in writing or otherwise, the application for an authorization made under this section and, on determination of the application, shall cause the writing or recording to be placed in the packet referred to in subsection 187(1) {{AnnSec1|187(1)}} and sealed in that packet, and a recording sealed in a packet shall be treated as if it were a document for the purposes of section 187 {{AnnSec1|187}}.
<br>
; Oath
(4) For the purposes of subsection (2) {{AnnSec1|184.3(2)}}, an oath may be administered by telephone or other means of telecommunication.
<br>
; Alternative to oath
(5) An applicant who uses a means of telecommunication that produces a writing may, instead of swearing an oath for the purposes of subsection (2) {{AnnSec1|184.3(2)}}, make a statement in writing stating that all matters contained in the application are true to the knowledge or belief of the applicant and such a statement shall be deemed to be a statement made under oath.
<br>
; Authorization
(6) Where the judge to whom an application is made under this section is satisfied that the circumstances referred to in paragraphs 184.2(3)(a) to (c) {{AnnSec1|184.2(3)(a) to (c)}} exist and that the circumstances referred to in subsection (2) {{AnnSec1|184.3(2)}} make it impracticable for the applicant to appear personally before a judge, the judge may, on such terms and conditions, if any, as are considered advisable, give an authorization by telephone or other means of telecommunication for a period of up to thirty-six hours.
<br>
; Giving authorization
(7) Where a judge gives an authorization by telephone or other means of telecommunication, other than a means of telecommunication that produces a writing,
:(a) the judge shall complete and sign the authorization in writing, noting on its face the time, date and place at which it is given;
:(b) the applicant shall, on the direction of the judge, complete a facsimile of the authorization in writing, noting on its face the name of the judge who gave it and the time, date and place at which it was given; and
:(c) the judge shall, as soon as is practicable after the authorization has been given, cause the authorization to be placed in the packet referred to in subsection 187(1) {{AnnSec1|187(1)}} and sealed in that packet.
 
; Giving authorization where telecommunication produces writing
(8) Where a judge gives an authorization by a means of telecommunication that produces a writing, the judge shall
:(a) complete and sign the authorization in writing, noting on its face the time, date and place at which it is given;
:(b) transmit the authorization by the means of telecommunication to the applicant, and the copy received by the applicant shall be deemed to be a facsimile referred to in paragraph (7)(b) {{AnnSec1|184.3(7)(b)}}; and
:(c) as soon as is practicable after the authorization has been given, cause the authorization to be placed in the packet referred to in subsection 187(1) {{AnnSec1|187(1)}} and sealed in that packet.
 
{{LegHistory90s|1993, c. 40}}, s. 4.
{{Annotation}}
|{{CCCSec2|184.3}}
|{{NoteUp|184.3|1|2|3|4|5|6|7|8}}
}}
 
{{reflist|2}}
{{WarrantNavBar}}

Latest revision as of 14:24, 14 July 2024

This page was last substantively updated or reviewed January 2023. (Rev. # 95382)

General Principles

Under 184.2, a person may intercept any private communication where one party consents to the interception.

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) [one-party consent wiretap – judge must be satisfied].
[omitted (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.

[omitted (4) and (5))]
1993, c. 40, s. 4.

– CCC (CanLII), (DOJ)

Note up: 184.2(1) and (3)


Defined terms: "authorization" (s. 183), "electro-magnetic, acoustic, mechanical or other device" (s. 183), and "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.[1]

All Offences are Eligible

A consent wiretap does not need to be in relation to an 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 R v Duarte, 1990 CanLII 150 (SCC), [1990] 1 SCR 30, per 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".[2]

Section 184.2 does not violate s. 8 of the Charter for not requiring "investigative necessity" before authorizing a search.[3]

  1. ↑ R v Goldman (1979) 51 CCC (2d) 1 at 17
  2. ↑ R v Lee, 2002 BCSC 1912 (CanLII), at para 7
    R v Monte, [1993] O.J. No. 4174 (Ont. S.C.)(*no CanLII links)
  3. ↑ R v Largie, 2010 ONCA 548 (CanLII), 258 CCC (3d) 297, per Watt JA leave to SCC denied
    R v Bordage, 2000 CanLII 6273 (QC CA), 146 CCC (3d) 549, per curiam, at paras 36 to 40
    Doiron c R, 2007 NBCA 41 (CanLII), 221 CCC (3d) 97, per Deschênes JA, at paras 43 to 45

Three or More Party Communications

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 [Pt. VI – Invasion of Privacy (ss. 183 to 196.1)].
1993, c. 40, s. 2.

– CCC (CanLII), (DOJ)

Note up: 183.1


Defined terms: "intercept" (s. 183) and "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."[1] Any form of "participant surveillance" requires a Part VI wiretap warrant.[2]

Online undercover work does not generally constitute a form of "participant surveillance."[3]

  1. ↑ R v Duarte, 1990 CanLII 150 (SCC), [1990] 1 SCR 30, per La Forest J
  2. ↑ Duarte, ibid.("surreptitious electronic surveillance ... constitutes an unreasonable search or seizure under s. 8 of the Charter")
  3. ↑ See Online Undercover Investigations

"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.[1]

  1. ↑ R v Horning, 2006 ABQB 669 (CanLII), per Watson J, at para 29

Procedure

The affiant must set out the following:

  1. he had reasonable grounds to believe an offence "has been or will be committed";
  2. the particulars of the offence;
  3. the identity of the persons whose private communications are to be intercepted;
  4. the "place" where the private communications are to be intercepted;
  5. terms and conditions of the intercepts that are "in the public interest";
  6. 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.[1]

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."[2]

184.2
[omitted (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 [definitions - judges], 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 [authorization of wiretap], the particulars of the authorization.

[omitted (3), (4) and (5)]
1993, c. 40, s. 4.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 184.2(2)


Defined terms: "authorization" (s. 183), "intercept" (s. 183), and "private communication" (s. 183)

Terms of Order

184.2
[omitted (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.

[omitted (5)]
1993, c. 40, s. 4.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 184.2(4)


Defined terms: "authorization" (s. 183), "intercept" (s. 183), and "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.[3]

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.[4]

  1. ↑ 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...")
  2. ↑ see s. 184.2(2)
  3. ↑ R v Niemi, 2012 ONSC 5684 (CanLII), per Boswell J
  4. ↑ see Admitting Wiretap Evidence (s. 189)

Other Warrants Granted

Interception with consent

184.2
[omitted (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 [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.
1993, c. 40, s. 4; 2014, c. 31, s. 8.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 184.2(1) and (5)


Defined terms: "authorization" (s. 183)

Application by Telewarrant

Retrieved from "https://criminalnotebook.ca/index.php?title=One-Party_Consent_Intercept_Authorizations&oldid=95382"