Third-Party Intercept Authorization Terms and Conditions
- < Search and Seizure
- < Warrant Searches
- < Wiretaps
Terms and Conditions
186 [omitted (1), (1.1), (2) and (3)]
- Content and limitation of authorization
(4) An authorization 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 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]
- "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.[1]
- "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.[2]
- ↑ R v Ansari, 2010 ONSC 1316 (CanLII), 224 CRR (2d) 288, per Dawson J
- ↑ R v Peluso, 2010 ONSC 1952(*no CanLII links)
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)
Time Limitation
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]