Persons, Places and Manner of Interception
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General Principles
186
[omitted (1), (1.1), (2) and (3)]
- Content and limitation of authorization
(4) An authorization shall [omitted (a) and (b)]
- (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;
[omitted (d) and (e) [see Terms and Conditions]]
[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]
Persons
- Known Persons
The authorization under s. 185(1)(e) and 186(4)(c) must name all "known" persons to the wiretap. Failure to set out sufficient evidence to name the accused as the subject of the wiretap would violate the accused s. 8 Charter rights.
There is no requirement that the person be implicated or involved in the offence. They may be completely innocent third parties.[1]
- Principle Knowns and Other Knowns
An authorization will often distinguish between Prinicpals, Others, and Unknowns. The first group are those who are the "target" of the investigation. The second are those who are known to exist and are likely to be in contact with the targets (e.g. family, friends, etc).
The convention of dividing known persons into categories of "principals" and "others" are not statutorily required for a valid authorization.[2] However, distinctions between types of "known persons" can be of use in describing the facts supporting the wiretap.[3]
The two pre-conditions for a person to be named in the application:[4]
- the "existence of the person is known to the police" and
- the intercept of the private communications of that person is believed on reasonable grounds "may assist the investigation."
Anyone who does not satisfy these two conditions are considered "unknown persons".[5] Should unknown persons communications be captured, the Crown must rely on a basket clause to introduce it.[6]
It is not permissible to delegate authority to the police to determine who is a "known person" to be intercepted.[7]
- Standard of Proof
The reference to "known" in s. 185(1)(e) and "known" in s. 186(4)(c) are concurrent requirements and both require the same standard of proof.[8]
- Threshold
The threshold requirement is a "modest one" that is short of reasonable and probable grounds (RPG) to believe the person was involved in the offence committed. The investigators merely need to "know" the identity of the person and have "reasonable and probable grounds to believe that the interception of that person’s private communications may assist the investigation of an offence".[9] The key connection is that the known person has a nexus (or link) with the offence in that the evidence of the person "may assist" in the investigation.[10]
- Challenging the Names
A voir dire must be held to challenge the naming of all known persons. This is known as a "Vanweenan hearing" or a "Chesson hearing."[11]
- Informants
Where one of known persons is an informant, police would not identify them as a "known person" in such a way as to reveal their informer status. However, the failure to disclose to the court that the unnamed informant in the affidavit is also a target can result in the court being mislead.[12]
Also drafting the affidavit in such a way as to suggest that the informer in a different person than a known person can result in a finding of being misleading.[13]
- ↑
R v Abdirahim, 2013 ONSC 7420 (CanLII), [2013] O.J. No. 6170, per Code J, at para 50
Finlay per Martin JA ("...even though that person is not believed to be involved in the commission of the offence") - ↑
R v Riley, 2009 CanLII 7177 (ON SC), per Dambrot J, at para 221
Mahal, supra, at para 90
- ↑ Mahal, supra, at para 90
- ↑ R v Chesson, 1988 CanLII 54 (SCC), 43 CCC (3d) 353, per McIntyre J (4:0)
- ↑ Chesson
- ↑ Chesson
- ↑ R v Paterson, (1983) 18 CCC (#d) 137, aff'd p1987] 2 SCR 291
- ↑
R v Mahal, 2012 ONCA 673 (CanLII), 292 CCC (3d) 252, per Watt JA, at paras 86 to 88
- ↑
Mahal, ibid., at paras 71 to 72
R v Riley 2009 OJ No No 739 at para 214 - ↑
Mahal, supra, at para 83 ("...185(1)(e) posits a nexus between the communications of ‘known’ persons and the offences under investigation. The section captures the nexus in its terms “may assist in the investigation of the offence".")
Chesson, ibid.
R v Nugent, 2005 CanLII 790 (ON CA), [2005] OJ No 141, at para 9 ("The trial judge should have determined whether the information remaining in the affidavit (after excising the inaccurate information) provided a sufficient link between Nugent and the offences, or between Nugent and others involved in the offences, to provide reasonable grounds to conclude that the interception of his communications could assist in the investigation of those robberies.") - ↑
see R v Giles, 1992 CanLII 403 (BC SC), per Gow J
Chesson, supra - ↑ R v Land, 1990 CanLII 10969 (ON SC), <https://canlii.ca/t/g9qjq>
- ↑ Guilbride 2001 BCPC 248
Places
- Known Place
Sections 185(1)(e) and 186(4)(c) require that the application identify the "place at which private communications may be intercepted".
Generally residences and motor vehicles of known targets is considered acceptable.[1]
More variable places such as public pay phones should usually attract the use of terms and conditions in order to reduce the risk of invasion of privacy for unrelated parties. A failure to use such clauses may render the warrant invalid.[2]
- Unknown Locations
Where the location is unknown, there is some ability to use basket (or "resort to") clauses.[3]
- ↑
R v Riley, 2009 CanLII 7177 (ON SC), per Dambrot J, at para 253 ("the residences and motor vehicles of named targets, as well as unknown places that they may resort to, are typically included in authorizations without challenge")
- ↑
R v Mahal, 2012 ONCA 673 (CanLII), 292 CCC (3d) 252, per Watt JA, at para 107
- ↑
R v Thompson, 1990 CanLII 43 (SCC), [1990] 2 SCR 1111, per Sopinka J
Resort To Clause/Basket Clause
There is always the risk that an inception will capture private communcatiosn of innocent third-parties.[1] Where the risk is great that there must be "explicit recognition" in the form of a "resort to" clause to address those risks.[2]
A resort to clause is not the equivalent to a separate search. It is more analogous to the "plain view" doctrine.[3]
It is permitted under s. 185(1)(e) and 186(4)(c) to intercept communications of unknown persons at known places.[4]
A "resort to" clause must be justified. There must be an belief on reasonable and probable grounds that the target will "resort to, attend at, or use the location or device."[5]
- ↑ Thompson
- ↑ Thompson
- ↑ Thompson
- ↑ R v Samson, (1983) 9 CCC (3d) 194 (Ont. C.A.)
- ↑ R v Russell, 2012 BCSC 1801 (CanLII), per J, at para 80 ("When an authorization permits interception of private communications at or through a specific location, residence, vehicle, or device, there must be an investigative belief, based upon reasonable and probable grounds, that a named target will resort to, attend at, or use the location or device.")
Identifying Manner of Interception
The manner of interception need only be described in a general fashion. It is not necessary for the judge to approve a particular type of tool.[1]
- ↑
R v Jennings, 2018 ABQB 416 (CanLII), at para hw80r
Chasson
R v J(J), 2010 ONSC 735 per Trafford J at para 411 ("s. 186(4) of the Code provides in subsection 4(c) that an authorization shall generally describe the manner of interception and, in subsection 4(d), that an authorization shall contain such terms and conditions as the judge considers advisable in the public interest.")