Third-Party Intercept Authorization Terms and Conditions
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Terms and Conditions
186 [omitted (1), (1.1), (2) and (3)]
- Content and limitation of authorization
(4) An authorization shall
[omitted (a), (b) and (c)]
- (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]
- Discretion
The authorizing judge has discretion to impose any conditions under s. 186(4)(d) they see fit that is in the public interest.[1]
- Minimization Clauses
Conditions that are in the "public interest" include "minimization clauses", which are conditions that "curtail the interception of the private communications in which designated targets do not participate, but rather are made by innocent third parties."[2]
Those clauses can be in the form of restrictions linked to named places, type of device used, or the manner the interception is carried out.[3]
The power to impose such clauses is discretionary.[4] Failure to impose conditions in certain cases may render the order "unreasonable" and consequently invalid.[5]
- "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.[6]
- "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.[7]
- Constitutionality
The failure to put conditions that can minimize intrusion on third-parties may render an order unconstitutional.[8]
- ↑ R v Doroslovac, 2012 ONCA 680 (CanLII), at para 33
- ↑ Doroslovac, ibid., at para 33
- ↑ Doroslovac, ibid., at para 34
- ↑ Doroslovac, ibid., at para 35
- ↑
Doroslovac at 35
Thompson at pp. 1145 to 1146 (SCR) - ↑ R v Ansari, 2010 ONSC 1316 (CanLII), 224 CRR (2d) 288, per Dawson J
- ↑ R v Peluso, 2010 ONSC 1952(*no CanLII links)
- ↑ Thompson ("While failure to impose conditions under s. 178.13(2)(d) [now s. 186(4)(d)] is not unlawful because the power is wholly discretionary, failure to do so may in certain circumstances be unreasonable.")
Installation and Removal of Devices
186 [omitted (1), (1.1), (2), (3), (4) and (5)]
- 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]
Solicitors Exception
186
[omitted (1) and (1.1)]
- 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.
- 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. [omitted (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]
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]
- ↑
R v Blais, 2004 CanLII 8466 (ON CA), 182 CCC (3d) 39, per Rosenberg JA
- ↑
R v Taylor, 1998 CanLII 836 (SCC), [1998] 1 SCR 26, per Bastarache J, affirming [1997] BCJ 346 (BCCA)
Duration of Orders
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]
Criminal Organizations and 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]