Warrantless Interceptions

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Interception to Prevent Bodily Harm

Under s. 184.1 a peace officer may intercept a private communication without judicial authorization:

Interception to prevent bodily harm

184.1 (1) An agent of the state may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication if

(a) either the originator of the private communication or the person intended by the originator to receive it has consented to the interception;

(b) the agent of the state believes on reasonable grounds that there is a risk of bodily harm to the person who consented to the interception; and

(c) the purpose of the interception is to prevent the bodily harm.

Admissibility of intercepted communication

(2) The contents of a private communication that is obtained from an interception pursuant to subsection (1) [interception to prevent bodily harm – offence] are inadmissible as evidence except for the purposes of proceedings in which actual, attempted or threatened bodily harm is alleged, including proceedings in respect of an application for an authorization under this Part or in respect of a search warrant or a warrant for the arrest of any person.
[omitted (3) and (4)]
1993, c. 40, s. 4.
[annotation(s) added]

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This requires that:

1. consent of one of the parties to the interception;
2. the interceptor reasonably believes there is a risk of bodily harm to the consenting party;
3. the purpose of the interception is to prevent bodily harm (such as to an undercover peace officer making a drug buy).

Wiretaps under 184.2 do not require the affiant to establish "investigative necessity" for the wiretap.

Destruction

Should the wiretap not intercept any relevant communications, the recording must be destroyed "as soon as practicable".

184.1.
[omitted (1) and (2)]

Destruction of recordings and transcripts

(3) The agent of the state who intercepts a private communication pursuant to subsection (1) [interception to prevent bodily harm – offence] shall, as soon as is practicable in the circumstances, destroy any recording of the private communication that is obtained from an interception pursuant to subsection (1) [interception to prevent bodily harm – offence], any full or partial transcript of the recording and any notes made by that agent of the private communication if nothing in the private communication suggests that bodily harm, attempted bodily harm or threatened bodily harm has occurred or is likely to occur. [omitted (4)]
1993, c. 40, s. 4.
[annotation(s) added]

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Emergency Wiretap

Section 164.4 permits warrantless wiretaps in exceptional circumstances. The section states:

Immediate interception — imminent harm

184.4 A police officer may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication if the police officer has reasonable grounds to believe that

(a) the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained under any other provision of this Part [Pt. VI – Invasion of Privacy (ss. 183 to 196.1)];

(b) the interception is immediately necessary to prevent an offence that would cause serious harm to any person or to property; and

(c) either the originator of the private communication or the person intended by the originator to receive it is the person who would commit the offence that is likely to cause the harm or is the victim, or intended victim, of the harm.

1993, c. 40, s. 4; 2013, c. 8, s. 3.
[annotation(s) added]

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This section, in its pre 2013 form, was determined to be unconstitutional due to a lack of safeguards, including a lack of a notice requirement, reporting requirements to Parliament, record-keeping requirement; and restrictions on the use that can be made of the interceptions.

Notice Requirements for Warrantless Wiretaps or Serious Offences

Written notice — interception in accordance with section 184.4

196.1 (1) Subject to subsections (3) [grounds of granting extension] and (5) [grounds of granting extension – crim org or terrorism], the Attorney General of the province in which a police officer intercepts a private communication under section 184.4 [immediate interception — imminent harm] or, if the interception relates to an offence for which proceedings may be commenced by the Attorney General of Canada, the Minister of Public Safety and Emergency Preparedness shall give notice in writing of the interception to any person who was the object of the interception within 90 days after the day on which it occurred.

Extension of period for notification

(2) The running of the 90-day period or of any extension granted under subsection (3) [grounds of granting extension] or (5) [grounds of granting extension – crim org or terrorism] is suspended until any application made by the Attorney General of the province or the Minister to a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 [definitions - judges] for an extension or a subsequent extension of the period has been heard and disposed of.

Where extension to be granted

(3) The judge to whom an application under subsection (2) [suspension while extension application pending] is made shall grant an extension or a subsequent extension of the 90-day period — each extension not to exceed three years — if the judge is of the opinion that the interests of justice warrant granting the application and is satisfied, on the basis of an affidavit submitted in support of the application, that one of the following investigations is continuing:

(a) the investigation of the offence to which the interception relates; or

(b) a subsequent investigation of an offence commenced as a result of information obtained from the investigation referred to in paragraph (a).

Application to be accompanied by affidavit

(4) An application 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 subsection (2) [suspension while extension application pending] in relation to the particular interception 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 — criminal organization or terrorism offence

(5) Despite subsection (3) [grounds of granting extension], the judge to whom an application under subsection (2) [suspension while extension application pending] is made shall grant an extension or a subsequent extension of the 90-day period — each extension not to exceed three years — if the judge is of the opinion that the interests of justice warrant granting the application and is satisfied, on the basis of an affidavit submitted in support of the application, that the interception of the communication relates to an investigation of

(a) an offence under section 467.11 [participation in activities of 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.

2013, c. 8, s. 6.
[annotation(s) added]

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