3. Wiretap and Surveillance

Overview of Wiretap and Electronic Surveillance #

Preliminary points #

The Supreme Court held in Duarte and Wong that where police record a private conversation, they carry out a search. Part VI of the Code contains an extensive scheme for authorizing surveillance by state agents, though there are provisions in other parts of the Code allowing for other forms of surveillance or electronic monitoring (discussed below).

Part VI of the Code has three features.

Section 184(1) of the Code makes it an offence to ‘intercept’ or eavesdrop on a ‘private communication’ between other people with a device.

Section 184(2) sets out exceptions to the offence, allowing for ‘interceptions’ with a device in certain cases – including with consent or with authorization.

Third, Part VI provides three kinds of authorization: ‘full-blown’ third-party interceptions; consent interceptions; and emergency interceptions.

The interceptions provided for in warrants under Part VI are for listening to or recording oral communications with a device. A warrant for video surveillance is available in section 487.01(4) – though, as discussed below, section 487.01(5) incorporates the same limitations and requirements of Part VI authorizations.

Important terms #

Section 183 defines ‘private communication’ as an oral communication or a ‘telecommunication’ [a term defined in the Interpretation Act to be anything transmitted by an ‘electromagnetic system’] by or to a person in Canada where the originator reasonably expects that it will not be received by anyone other than their intended recipient.

Section 183 also defines ‘interception’ to mean record or listen.

-thus, if you were simply eavesdropping on a conversation in the next room, by pressing our ear to the door, you would not be committing the offence under s. 184 – though you might be committing the tort of ‘invasion of privacy’ under section 1 of the Privacy Act, BC.

Section 184 requires an interception (listening or recording) with a device.

Interception with a device: #

Section 184(2) of the Code sets out a series of exceptions to the offence in 184(1). The two most important are:

i. when a person has the consent of one of the parties to the conversation intercepted

ii. with authorization

[Other exceptions are for telecom companies maintaining the system.]

Can police get around the need for an ‘authorization’ in order to lawfully conduct an interception (record or listen) if they have consent from one party? Yes and no.

Police can rely only on consent if they only want to listen with a device. If they want to record, they need authorization.

(What about if police only want to listen without a device? The BCCA has held that if police eavesdrop on a private conversation — deliberately — they carry out a search [Sandhu, 1993]. They would therefore need to be authorized by law to do this: a warrant or other authority.)

If police want to record a private conversation the provisions of this part of the Code require, in some cases, that police have authorization with consent, and in some cases, only authorization.

Authorization #

Section 183 defines ‘authorization’ in this part of the Code to include various provisions allowing for interceptions, but they fall within 3 categories:

i. 184.2(1) — allows for police interception if they have a warrant and consent. [also 184.3(6) by tele-warrant]

ii. third-party warrant provisions on probable cause and ‘investigative necessity’: ss. 185 + 186 — allows for interception on a warrant and no consent.

iii. emergency authorizations — there are 3:

a. interception by a police officer or an "agent of the state" on reasonable suspicion of risk of harm, but with the consent of one of the parties (184.1(1).)

b. interception by a police office on probable grounds of imminent harm — and no consent is required. (184.4)

c. an emergency third-party warrant under 188, by the Chief Justice of the SC (no consent), when the “urgency of the situation” requires it and for up to 36 hours.

An emergency warrant under section 188 might, for example, be sought to avoid the imminent destruction of evidence, before a longer, more detailed warrant application can be prepared for authorization under sections 185 & 186, noted above.

General warrants and video surveillance #

The Code contains a ‘general warrant’ provision that allows for surveillance or interception of private communication by any possible means:

487.01(1) allows the police to obtain a warrant to use “any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property”.

The provision requires reasonable and probable grounds (to believe an offence has occurred and evidence is to be found in the place to be searched); the warrant must be ‘in the best interests of the admin of justice’; and there must be “no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.”

Sections 487.01(4) and (5) address video surveillance specifically, and require that if a warrant for video surveillance is issued under 487.01(1) “shall contain such terms and conditions as the judge considers advisable to ensure that the privacy of the person or of any other person is respected as much as possible.”

Other electronic surveillance or search powers #

Preservation demands (487.012) #

Police can make a demand to a person/company without a warrant to preserve data in their possession or control where they have reasonable suspicion that a federal offence has been committed and the data at issue will assist the investigation. The order is valid for 21 days.

Preservation orders (487.013) #

Where police seek a longer lasting order compelling a person or company to preserve data, they can apply to a judge for a warrant on the same grounds for a preservation demand – reasonable suspicion that a federal offence has been committed and the data at issue will assist the investigation – along with the requirement that the officer must either intend to or be in the process of applying for a warrant for the data on RPG. A preservation order is valid for up to 90 days.

Production orders (487.014) #

Production orders are warrants for the disclosure to the police of a “document containing data” held by service providers or other third-parties. The Code provides for a general production order and 4 specific kinds of orders (in ss 487.015 to 487.018): for tracing communications (e.g., metadata attached to email or phone calls), transmission data (call or text histories); tracking data (location); and financial data.

Police may obtain a general production order (under 487.014) from a judge on reasonable grounds to believe a federal offence has been committed and a “document or data” in a person’s “possession or control will afford evidence respecting the commission of the offence.” The police may obtain any of the four more specific kinds of production orders (ss 487.015 to 487.018) on reasonable suspicion.

Tracking warrants (492.1) #

Section 492.1(1) allows for a warrant for tracking movement of a vehicle or other thing by use of a device on reasonable suspicion of a federal offence and the possibility that the tracking will assist in the investigation.

Section 492.1(2) authorizes the tracking of people through the use of a device on reasonable grounds to believe a federal offence has been committed and the tracking will assist in the investigation.

Transmission data warrants (492.2) #

These allow police, on reasonable suspicion, to obtain a warrant to monitor phone numbers dialed on a given line. Transmission data is any data relating to “the telecommunication functions of dialling, routing, addressing or signalling” but “does not reveal the substance, meaning or purpose of the communication."

© Robert Diab 2023