Criminal Law Notebook

Investigative Necessity

General Principles

See also: Third-Party Intercept Authorizations

Section 186(1)(b) requires that the applicant establish the "investigative necessity" of the wiretap before it can be authorized. That provision states:

Judge to be satisfied

186 (1) An authorization under this section may be given if the judge to whom the application is made is satisfied

[omitted (a)]
(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

[omitted (1.1), (2), (3), (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.

– CCC (CanLII), (DOJ)

Note up: 186(1)

Consideration of necessity balances the needs of the criminal investigations as against protecting privacy rights.[1]

Scope of Necessity

Necessity does not imply that the use of interception is only a "tool of last resort," it simply requires that there is, "practically speaking, no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry."[2] Necessity applies to the investigation "as a whole" and not to individual named suspects.[3]

It also means that the fact that lesser charges are available on the evidence collected does not preclude investigators from going after the full scale of the criminal activity.[4]

Even if the cases against the main culprits are concluded, the police may still investigate others involved.[5]

The police has the duty to inform the judge of the progress of the investigation and the reasons why other techniques are not viable in the circumstances.[6]

Objectives of the Investigation

The articulated objectives of the investigation inform the assessment of necessity.[7]

There is nothing wrong with setting the objectives around problems and the "practical realities" of the investigation.[8]

Elements of Investigative Necessity

There are three ways to establish investigative necessity. The applicant must establish:[9]

  1. other investigative measures "have been tried and have failed",
  2. other investigative procedures are "unlikely to succeed", or
  3. the "urgency of the matter" is such that "it would be impractical to carry out the investigation" of the offence "using only other investigative procedures."

The applicant need only establish one of the three elements.[10]

Necessity requires "no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry."[11]

The consideration must be based on the "context of the whole investigation" and "not on a target by target basis or each known person's involvement."[12]

  1. ↑ R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per LeBel J (9:0), at paras 22 and 26
    R v Andrews, Leyva and Hamid, 2020 ONSC 49 (CanLII), per Petersen J, at para 24
  2. ↑ Araujo
  3. ↑ R v Tahirkheli, 1998 CanLII 6243 (ON CA), at para 4
    R v Pham, 2009 CanLII 60792 (ON SC), per Hill J, at paras 85 to 86
    R. v. Russell, 2012 BCSC 1714 (CanLII), at para 47, <https://canlii.ca/t/gmc6h#par47>, retrieved on 2024-06-26
  4. ↑ Russell, ibid. at para 47 ("the fact that certain charges could be laid against certain individuals in a drug investigation does not preclude investigators from continuing to investigate the full scale of the criminal activity, the drug line of supply, and the higher echelon people involved") R. v. Shalala, 1997 CanLII 23156 (NB KB), 198 N.B.R. (2d) 1, [1997] N.B.J. No. 560 at para. 42, leave to appeal ref’d 2000 CanLII 20260 (NB CA), [2000] N.B.J. No. 14 (Q.B.)
    Araujo at paras. 41 and 43
    R. v. Adam, 2006 BCSC 382 at para. 148
    R. v. Ciancio, 2006 BCSC 1717 at paras. 43-45
  5. ↑ Uppal, 2002 BCSC 1379
  6. ↑ Andrews, Leyva and Hamid, ibid., at para 24
    R v Morrison, 1989 CanLII 7114 (ON CA), 50 CCC (3d) 353, per Morden JA, at p. 369
  7. ↑ Araujo at para 43
  8. ↑ Russell at para 48
  9. ↑ Pham, supra, at para 89
    R v Duarte, 1990 CanLII 150 (SCC), [1990] 1 SCR 30, per La Forest J
    Araujo, supra, at para 34
    see also 185(1)(h) and 186(1)(b).
  10. ↑ R v Smyk et al., 1993 CanLII 3370 (MB CA), 86 CCC (3d) 63, per Philp JA (3:0), at para 70
  11. ↑ Araujo, supra, at para 29
  12. ↑ R v Tahirkheli, 1998 CanLII 6243 (ON CA), (1998) 130 CCC (3d) 19, per Finlayson and Labrosse JJA, at p. 22 (ONCA)
    Mahal, supra, at and 76 paras 42 and 76{{{3}}}

Tried and Failed

It is not necessary that "all alternative investigative techniques have been tried." That is, the authorization need not be proven as a "last resort."[1]

  1. ↑ R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per LeBel J (9:0), at paras 29 and 34

The consideration of necessity involves "regard both to the nature and purpose of the particular investigation which the police wish to undertake."[1]

Likelihood of Success

A judge may place "considerable weight on the police officer's opinions as to the probable success of various types of possible investigative procedures". Some deference should be given an officer's expertise.[2]

The judge should consider the effectiveness and danger associated with using alternate means such as surveillance and informers.[3]

  1. ↑ Araujo, ibid., at para 29
  2. ↑ R v Paris and Normand, 2006 CanLII 11655 (ON CA), 69 WCB (2d) 743, per MacFarland JA, at para 22
  3. ↑ R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per LeBel J (9:0), at paras 40, 42

Impractical Due to Urgency

This branch considers things such as ongoing threat to public safety, anticipated loss of material evidence, time-limited opportunities for collecting evidence, need to find a victim's body and similar.

Specific Types of Investigations

Investigations of "international drug smuggling" would largely favour the necessity for an authorization.[1]

Similarly, investigations targeting "higher-up" or "ringleader" members of a drug trafficking ring would favour the need for an authorization.[2]

  1. ↑ R v Tahirkheli, 1998 CanLII 6243 (ON CA), 130 CCC (3d) 19, per Finlayson and Labrosse JJA, at para 22
  2. ↑ R v Araujo, 2000 SCC 65 (CanLII), [2000] 2 SCR 992, per LeBel J (9:0), at paras 40, 43

Exceptions for Criminal Organizations and Terrorism Offences

185
[omitted (1)]

Exception for criminal organizations and terrorist groups

(1.1) Notwithstanding paragraph (1)(h) [requirements for a 186 wiretap – no reasonable alternative], that paragraph does not apply where the application for an 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.

[omitted (2), (3) and (4)]
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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 185(1.1)

186
[omitted (1)]

Exception for criminal organizations and terrorism offences

(1.1) Notwithstanding paragraph (1)(b) [authorization of wiretap – exhaustion of alternatives], that paragraph does not apply where the judge is satisfied that the application for an authorization is in relation to

(a) an offence under section 467.11 , 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.

[omitted (2), (3), (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]

– CCC (CanLII), (DOJ)

Note up: 186(1.1)


Constitutionality

Section 186(1.1) has been found not to violate s. 7 of the Charter.[1] Likewise, 185(1.1) has also been found not to violate s. 7 of the Charter.[2]

  1. ↑ R v Accused No. 1 et al, 2005 BCSC 1727 (CanLII)
  2. ↑ R v Pangman, 2000 MBQB 85 (CanLII)
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