Intercept of Private Communications (Offence): Difference between revisions
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::(i) a telephone, telegraph or other communication service to the public, | ::(i) a telephone, telegraph or other communication service to the public, | ||
::(ii) a department or an agency of the Government of Canada, or | ::(ii) a department or an agency of the Government of Canada, or | ||
::(iii) services relating to the management or protection of a computer system, as defined in subsection 342.1(2) {{ | ::(iii) services relating to the management or protection of a computer system, as defined in subsection 342.1(2) {{AnnSec3|342.1(2)}}, | ||
if the disclosure is necessarily incidental to an interception described in paragraph 184(2)(c), (d) or (e); | if the disclosure is necessarily incidental to an interception described in paragraph 184(2)(c), (d) or (e); | ||
:(e) where disclosure is made to a peace officer or prosecutor in Canada or to a person or authority with responsibility in a foreign state for the investigation or prosecution of offences and is intended to be in the interests of the administration of justice in Canada or elsewhere; or | :(e) where disclosure is made to a peace officer or prosecutor in Canada or to a person or authority with responsibility in a foreign state for the investigation or prosecution of offences and is intended to be in the interests of the administration of justice in Canada or elsewhere; or | ||
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|[{{CCCSec|193}} CCC] | |[{{CCCSec|193}} CCC] | ||
}} | }} | ||
==="Private Communications", "Interception", and "Telecommunication"=== | ==="Private Communications", "Interception", and "Telecommunication"=== | ||
Revision as of 20:28, 11 February 2020
- < Search and Seizure
- < Warrant Searches
- < Wiretaps
| Intercept of Private Communications | |
|---|---|
| s. 184, 184.5, 191, 193, and 193.1 of the Crim. Code | |
| Election / Plea | |
| Crown Election | Hybrid |
| Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
| Indictable Dispositions | |
| Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
| Minimum | None |
| Maximum | 2 years incarceration or 5 years incarceration |
| Reference | |
| Offence Elements Sentence Digests | |
Overview
Offences relating to intercept of private communications are found in Part VI of the Criminal Code relating to "Invasion of Privacy".
- Pleadings
| Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
Preliminary Inquiry |
|---|---|---|---|---|
| s. 184 [interception of private communication], s. 184.5 [interception of radio-based telephone communications], s. 191 [possession of interception devices], s. 193 [disclosure of intercepted information], and s. 193.1 [disclosure of information received from interception of radio-based telephone communications] |
Hybrid Offence(s) | N/A | Yes |  (under 14 years max)
|
Offences under s. 184 [interception of private communication], 184.5 [interception of radio-based telephone communications], 191 [possession of interception devices], 193 [disclosure of intercepted information], and 193.1 [disclosure of information received from interception of radio-based telephone communications] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).
- Release
When charged under s. 184 [interception of private communication],
s. 184.5 [interception of radio-based telephone communications], s. 191 [possession of interception devices],
s. 193 [disclosure of intercepted information], and
s. 193.1 [disclosure of information received from interception of radio-based telephone communications], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
- Reverse Onus Bail
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
And, regardless of Crown election, if the offence alleged was one:
- where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
- Publication Bans
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
- Offence Designations
| Offence(s) | Wiretap Eligible s. 183 |
Dangerous Offender Designated Offence s. 752 |
Serious Personal Injury Offence s. 752 |
AG Consent Required | Serious Criminality Offence s. 36 IRPA |
|---|---|---|---|---|---|
| s. 184 [interception of private communication] and s. 191 [possession of interception devices] |
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| s. 184.5 [interception of radio-based telephone communications], s. 193 [disclosure of intercepted information], and s. 193.1 [disclosure of information received from interception of radio-based telephone communications] |
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Offences under s. 184 and 191 are designated offences eligible for wiretap under s. 183.
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Offence Wording
- Interception
184. (1) Every person who, by means of any electro-magnetic, acoustic, mechanical or other device, knowingly intercepts a private communication is guilty of
- (a) an indictable offence and liable to imprisonment for a term of not more than five years; or
- (b) an offence punishable on summary conviction.
- Saving provision
(2)
...
R.S., 1985, c. C-46, s. 184; 1993, c. 40, s. 3; 2004, c. 12, s. 4; 2019, c. 25, s. 64.– CCC
- Interception of radio-based telephone communications
184.5 (1) Every person who intercepts, by means of any electro-magnetic, acoustic, mechanical or other device, maliciously or for gain, a radio-based telephone communication, if the originator of the communication or the person intended by the originator of the communication to receive it is in Canada, is guilty of
- (a) an indictable offence and liable to imprisonment for a term of not more than five years; or
- (b) an offence punishable on summary conviction.
- Other provisions to apply
(2) Section 183.1 [sufficiency of consent to interception], subsection 184(2) [interception of private communication – exception] and sections 184.1 to 190 [provisions re interception of communications] and 194 to 196 [provisions re accountability on wiretaps] apply, with such modifications as the circumstances require, to interceptions of radio-based telephone communications referred to in subsection (1) [interception of radio-based telephone communications – offence].
1993, c. 40, s. 4; 2019, c. 25, s. 65.– CCC
- Possession, etc.
191 (1) Every person who possesses, sells or purchases any electro-magnetic, acoustic, mechanical or other device or any component of it knowing that its design renders it primarily useful for surreptitious interception of private communications is guilty of
- (a) an indictable offence and liable to imprisonment for a term of not more than two years; or
- (b) an offence punishable on summary conviction.
...
R.S., 1985, c. C-46, s. 191; R.S., 1985, c. 27 (1st Supp.), s. 26; 2005, c. 10, s. 34; 2013, c. 8, s. 4; 2019, c. 25, s. 67.– CCC
- Disclosure of information
193 (1) If a private communication has been intercepted by means of an electro-magnetic, acoustic, mechanical or other device without the consent, express or implied, of the originator of that communication or of the person intended by the originator to receive it, every person commits an offence who, without the express consent of the originator of that communication or of the person intended to receive it, knowingly
- (a) uses or discloses the private communication or any part of it or the substance, meaning or purpose of it or of any part of it, or
- (b) discloses the existence of the private communication.
- Punishment
(1.1) Every person who commits an offence under subsection (1) [disclosing intercepted communication – offence] is guilty of
- (a) an indictable offence and liable to imprisonment for a term of not more than two years; or
- (b) an offence punishable on summary conviction.
...
R.S., 1985, c. C-46, s. 193; R.S., 1985, c. 30 (4th Supp.), s. 45; 1993, c. 40, s. 11; 2004, c. 12, s. 5; 2019, c. 25, s. 68.– CCC
- Disclosure of information received from interception of radio-based telephone communications
193.1 (1) Every person who knowingly uses or discloses a radio-based telephone communication or who knowingly discloses the existence of such a communication is guilty of an indictable offence and liable to imprisonment for a term of not more than two years or is guilty of an offence punishable on summary conviction, if
- (a) the originator of the communication or the person intended by the originator of the communication to receive it was in Canada when the communication was made;
- (b) the communication was intercepted by means of an electromagnetic, acoustic, mechanical or other device without the consent, express or implied, of the originator of the communication or of the person intended by the originator to receive the communication; and
- (c) the person does not have the express or implied consent of the originator of the communication or of the person intended by the originator to receive the communication.
- Other provisions to apply
(2) Subsections 193(2) [disclosing intercepted communication – exemptions] and (3) [disclosing intercepted communication – lawful publishing] apply, with such modifications as the circumstances require, to disclosures of radio-based telephone communications.
1993, c. 40, s. 12; 2019, c. 25, s. 69.– CCC
Proof of the Offence
|
Proving interception under s. 184 should include:
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Proving interception radio-based telephone communications under s. 184.5 should include:
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Proving Possession of Intercept Device under s. 191 should include:
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Proving Disclosure of Information under s. 193 should include:
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Proving Disclosure of information received from interception of radio-based telephone communications under s. 193.1 should include:
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Interpretation
Exceptions for s. 184
Exceptions are made for:
- interceptions with "the consent to intercept, express or implied, of the originator of the communication or the person intended to by the originator to receive it;" (184(2)(a)). This would appear to include consent of the party recording the communication if they were a party the original communication.
- intercepts with authorization under 184.4 or where there is good faith belief to be acting under such authorization. (184(2)(b))
- intercepted by certain persons who are maintaining the communication service (184(2)(c), (d), or (e))
184
...
- Saving provision
(2) Subsection (1) [interception of private communication – exception] does not apply to
- (a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it;
- (b) a person who intercepts a private communication in accordance with an authorization or pursuant to section 184.4 or any person who in good faith aids in any way another person who the aiding person believes on reasonable grounds is acting with an authorization or pursuant to section 184.4 [immediate interception — imminent harm]
- (c) a person engaged in providing a telephone, telegraph or other communication service to the public who intercepts a private communication,
- (i) if the interception is necessary for the purpose of providing the service,
- (ii) in the course of service observing or random monitoring necessary for the purpose of mechanical or service quality control checks, or
- (iii) if the interception is necessary to protect the person’s rights or property directly related to providing the service;
- (d) an officer or servant of Her Majesty in right of Canada who engages in radio frequency spectrum management, in respect of a private communication intercepted by that officer or servant for the purpose of identifying, isolating or preventing an unauthorized or interfering use of a frequency or of a transmission; or
- (e) a person, or any person acting on their behalf, in possession or control of a computer system, as defined in subsection 342.1(2) [unauthorized use of computer – definitions], who intercepts a private communication originating from, directed to or transmitting through that computer system, if the interception is reasonably necessary for
- (i) managing the quality of service of the computer system as it relates to performance factors such as the responsiveness and capacity of the system as well as the integrity and availability of the system and data, or
- (ii) protecting the computer system against any act that would be an offence under subsection 342.1(1) [unauthorized use of computer – form of offences] or 430(1.1) [mischief to data].
- Use or retention
(3) A private communication intercepted by a person referred to in paragraph (2)(e) [interception of private communication – exception for quality of service] can be used or retained only if
- (a) it is essential to identify, isolate or prevent harm to the computer system; or
- (b) it is to be disclosed in circumstances referred to in subsection 193(2) [disclosing intercepted communication – exemptions].
R.S., 1985, c. C-46, s. 184; 1993, c. 40, s. 3; 2004, c. 12, s. 4.
– CCC
Exceptions for s. 191
191
...
- Exemptions
(2) Subsection (1) does not apply to
- (a) a police officer in possession of a device or component described in subsection (1) [possession of interception devices – offence] in the course of his employment;
- (b) a person in possession of such a device or component for the purpose of using it in an interception made or to be made in accordance with an authorization;
- (b.1) a person in possession of such a device or component under the direction of a police officer in order to assist that officer in the course of his duties as a police officer;
- (c) an officer or a servant of Her Majesty in right of Canada or a member of the Canadian Forces in possession of such a device or component in the course of his duties as such an officer, servant or member, as the case may be; and
- (d) any other person in possession of such a device or component under the authority of a licence issued by the Minister of Public Safety and Emergency Preparedness.
- Terms and conditions of licence
(3) A licence issued for the purpose of paragraph (2)(d) [possession of interception devices – exemption for authorized persons] may contain such terms and conditions relating to the possession, sale or purchase of a device or component described in subsection (1) [possession of interception devices – offence] as the Minister of Public Safety and Emergency Preparedness may prescribe.
R.S., 1985, c. C-46, s. 191; R.S., 1985, c. 27 (1st Supp.), s. 26; 2005, c. 10, s. 34; 2013, c. 8, s. 4.– CCC
Exemptions are made for:
- police officer when in the course of their employment (191(2)(a))
- anyone possessing it the purpose of an authorized interception (191(2)(b))
- anyone who is at the direction of a police officer in the course of his duties (191(2)(b.1))
- a "servant" to Her Majesty or member of the Canadian Forces while in the course of their duties (191(2)(c))
- a person licenced by the Minister of Public Safety and Emergency Preparedness (191(2)(d))
It is also an offence to possess equipment that may intercept private communications:
- Possession, etc.
191. (1) Every one who possesses, sells or purchases any electro-magnetic, acoustic, mechanical or other device or any component thereof knowing that the design thereof renders it primarily useful for surreptitious interception of private communications is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
...
R.S., 1985, c. C-46, s. 191; R.S., 1985, c. 27 (1st Supp.), s. 26; 2005, c. 10, s. 34; 2013, c. 8, s. 4.– CCC
Exceptions for s. 193
193
...
- Exemptions
(2) Subsection (1) [disclosing intercepted communication – exemptions] does not apply to a person who discloses a private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof or who discloses the existence of a private communication
- (a) in the course of or for the purpose of giving evidence in any civil or criminal proceedings or in any other proceedings in which the person may be required to give evidence on oath;
- (b) in the course of or for the purpose of any criminal investigation if the private communication was lawfully intercepted;
- (c) in giving notice under section 189 or furnishing further particulars pursuant to an order under section 190;
- (d) in the course of the operation of
- (i) a telephone, telegraph or other communication service to the public,
- (ii) a department or an agency of the Government of Canada, or
- (iii) services relating to the management or protection of a computer system, as defined in subsection 342.1(2) [unauthorized use of computer – definitions],
if the disclosure is necessarily incidental to an interception described in paragraph 184(2)(c), (d) or (e);
- (e) where disclosure is made to a peace officer or prosecutor in Canada or to a person or authority with responsibility in a foreign state for the investigation or prosecution of offences and is intended to be in the interests of the administration of justice in Canada or elsewhere; or
- (f) where the disclosure is made to the Director of the Canadian Security Intelligence Service or to an employee of the Service for the purpose of enabling the Service to perform its duties and functions under section 12 of the Canadian Security Intelligence Service Act.
- Publishing of prior lawful disclosure
(3) Subsection (1) [disclosing intercepted communication – offence] does not apply to a person who discloses a private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof or who discloses the existence of a private communication where that which is disclosed by him was, prior to the disclosure, lawfully disclosed in the course of or for the purpose of giving evidence in proceedings referred to in paragraph (2)(a) [disclosing intercepted communication – exemptions – giving evidence].
R.S., 1985, c. C-46, s. 193; R.S., 1985, c. 30 (4th Supp.), s. 45; 1993, c. 40, s. 11; 2004, c. 12, s. 5.– CCC
"Private Communications", "Interception", and "Telecommunication"
- see Wiretaps
Possession of Intercept Device
A dual function device, such as a recorder that also takes pictures, can be a device that is "primarily useful for surreptitious interception".[1]
- ↑
R v Alexander (2005) 206 CCC (3d) 233 (ONCA), 2005 CanLII 32566 (ON CA), per Doherty JA appeal refused to SCC
Participation of Third Parties
- Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
- On Finding of Guilt
| Offence(s) | Victim Notice of Agreement s. 606(4.1) [SPIO] |
Victim Queried for Interest in Agreement s. 606(4.2) [5+ years] |
Victim Notice for Restitution s. 737.1 |
Victim Notice of Impact Statement s. 722(2) |
|---|---|---|---|---|
| s. 184 [interception of private communication] |
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".
Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Sentencing Principles and Ranges
- Maximum Penalties
| Offence(s) | Crown Election |
Maximum Penalty |
|---|---|---|
| s. 184 [interception of private communication], s. 184.5 [interception of radio-based telephone communications] |
N/A | 5 years incarceration |
| s. 191 [possession of interception devices], s. 193 [disclosure of intercepted information], and s. 193.1 [disclosure of information received from interception of radio-based telephone communications] |
N/A | 2 years incarceration |
Offences under s. 184 [interception of private communication] and 184.5 [interception of radio-based telephone communications] are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is {{{3}}}.
Offences under s. 191 [possession of interception devices], 193 [disclosure of intercepted information], and 193.1 [disclosure of information received from interception of radio-based telephone communications] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is {{{3}}}.
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Dispositions
| Offence(s) | Crown Election |
Discharge s. 730 |
Suspended Sentence s. 731(1)(a) |
Stand-alone Fine s. 731(1)(b) |
Custody s. 718.3, 787 |
Custody and Probation s. 731(1)(b) |
Custody and Fine s. 734 |
Conditional Sentence (CSO) s. 742.1 |
|---|---|---|---|---|---|---|---|---|
| s. 184 [interception of private communication], 184.5 [interception of radio-based telephone communications], 191 [possession of interception devices], 193 [disclosure of intercepted information], and 193.1 [disclosure of information received from interception of radio-based telephone communications] | N/A | |
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All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
Damages
- Damages
194. (1) Subject to subsection (2), a court that convicts an accused of an offence under section 184, 184.5, 193 or 193.1 may, on the application of a person aggrieved, at the time sentence is imposed, order the accused to pay to that person an amount not exceeding five thousand dollars as punitive damages.
- No damages where civil proceedings commenced
(2) No amount shall be ordered to be paid under subsection (1) to a person who has commenced an action under Part II of the Crown Liability Act.
- Judgment may be registered
(3) Where an amount that is ordered to be paid under subsection (1) is not paid forthwith, the applicant may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the accused in the same manner as if it were a judgment rendered against the accused in that court in civil proceedings.
- Moneys in possession of accused may be taken
(4) All or any part of an amount that is ordered to be paid under subsection (1) may be taken out of moneys found in the possession of the accused at the time of his arrest, except where there is a dispute respecting ownership of or right of possession to those moneys by claimants other than the accused.
R.S., 1985, c. C-46, s. 194; 1993, c. 40, s. 13.
– CCC
Principles
Ranges
Sentencing Ancillary Orders
Forfeiture
Section 192 permits a judge or justice to order the forfeiture of a wiretap device used in the commission of an offence under s. 184 or 191.
- Forfeiture
192. (1) Where a person is convicted of an offence under section 184 or 191, any electro-magnetic, acoustic, mechanical or other device by means of which the offence was committed or the possession of which constituted the offence, on the conviction, in addition to any punishment that is imposed, may be ordered forfeited to Her Majesty whereupon it may be disposed of as the Attorney General directs.
- Limitation
(2) No order for forfeiture shall be made under subsection (1) in respect of telephone, telegraph or other communication facilities or equipment owned by a person engaged in providing telephone, telegraph or other communication service to the public or forming part of the telephone, telegraph or other communication service or system of that person by means of which an offence under section 184 has been committed if that person was not a party to the offence.
1973-74, c. 50, s. 2.– CCC
Section 183 defines "electro-magnetic, acoustic, mechanical or other device".
Damages
- Damages
194 (1) Subject to subsection (2), a court that convicts an accused of an offence under section 184, 184.5, 193 or 193.1 may, on the application of a person aggrieved, at the time sentence is imposed, order the accused to pay to that person an amount not exceeding five thousand dollars as punitive damages.
- No damages where civil proceedings commenced
(2) No amount shall be ordered to be paid under subsection (1) to a person who has commenced an action under Part II of the Crown Liability Act.
- Judgment may be registered
(3) Where an amount that is ordered to be paid under subsection (1) is not paid forthwith, the applicant may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the accused in the same manner as if it were a judgment rendered against the accused in that court in civil proceedings.
- Moneys in possession of accused may be taken
(4) All or any part of an amount that is ordered to be paid under subsection (1) may be taken out of moneys found in the possession of the accused at the time of his arrest, except where there is a dispute respecting ownership of or right of possession to those moneys by claimants other than the accused.
R.S., 1985, c. C-46, s. 194; 1993, c. 40, s. 13.– CCC
Orders
- Offence-specific Orders
| Order | Conviction | Description |
|---|---|---|
| DNA Orders | s. 184 or 184.5 |
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| Device Forfeiture Order (s. 192) | s. 184 or 191 |
- General Sentencing Orders
| Order | Conviction | Description |
|---|---|---|
| Non-communication order while offender in custody (s. 743.21) | any | The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them. |
| Restitution Orders (s. 738) | any | A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403. |
| Victim Fine Surcharge (s. 737) | any | A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100). |
- General Forfeiture Orders
| Forfeiture | Conviction | Description |
|---|---|---|
| Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) | any | Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences. |
| Fine in Lieu of Forfeiture (s. 462.37(3)) | any | Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration. |
| Forfeiture of Weapons or Firearms (s. 491) | any | Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner. |
| Forfeiture of Offence-related Property (s. 490.1) | any | Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences. |
History
1993 to 2004
- Interception
184. (1) Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
- Saving provision
(2) Subsection (1) does not apply to
- (a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it;
- (b) a person who intercepts a private communication in accordance with an authorization or pursuant to section 184.4 or any person who in good faith aids in any way another person who the aiding person believes on reasonable grounds is acting with an authorization or pursuant to section 184.4;
- (c) a person engaged in providing a telephone, telegraph or other communication service to the public who intercepts a private communication,
- (i) if the interception is necessary for the purpose of providing the service,
- (ii) in the course of service observing or random monitoring necessary for the purpose of mechanical or service quality control checks, or
- (iii) if the interception is necessary to protect the person’s rights or property directly related to providing the service; or
- (d) an officer or servant of Her Majesty in right of Canada who engages in radio frequency spectrum management, in respect of a private communication intercepted by that officer or servant for the purpose of identifying, isolating or preventing an unauthorized or interfering use of a frequency or of a transmission.
(3) [Repealed, 1993, c. 40, s. 3]
R.S., 1985, c. C-46, s. 184; 1993, c. 40, s. 3.– CCC
See Also
- Level Zero
- Criminal Law
- Sentencing
- Offences
- Search and Seizure
- Warrant Searches
- Interceptions
- Wiretap Eligible Offences
- 1985, c. C-46
- 1993, c. 40
- 2004, c. 12
- 2019, c. 25
- 1985, c. 27 (1st Supp.)
- 2005, c. 10
- 2013, c. 8
- 1985, c. 30 (4th Supp.)
- Offences Requiring Notice to Victim
- Offences with Maximum Penalty of 5 Years
- Offences with Maximum Penalty of 2 Years
- Hybrid Offences
- Offences with No Mandatory Minimum
- Secondary Designated Offences for DNA Orders