Canadian Criminal Procedure and Practice/Search and Seizure/Wiretaps
Wiretaps are governed by Part VI of the Criminal Code.
There are three categories of wiretap:
- a general wiretap authorized under s. 185 and 186.
- a wiretap with consent under s. 184.2
- an emergency wiretap under s. 184.4 and 188
The consent wiretap and emergency wiretap does not require full judicial authorization.
A wilful interception of "a private communication" without authorization is a indictable offence under s. 184 with a maximum penalty of 5 years. This offence does not include situations where one of the parties consents (s.184(2)).
Under s.183, a "private communication" refers to any "oral communication or any telecommunication, that is made by an originator thereof who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances where the originator expects that it will not be intercepted by any other person other than the person intended by the originator to receive it".
The following has been found not to be a "private communication":
- Electronic signals captured by a digital number recorder (DNR)
- a prayer to God as God does not meet the legal definition of a person.
The interception must be done by way of an "electromagnetic, acoustic, mechanical or other device" (s.183). Consequently, simply to use one's human senses without technological aids does not invoke Part VI.
Grounds for Application
Wiretaps are investigative tools. All that is needed is a reasonble belief to grant the authorization. The fact that the belief turns out to be false is not relevant to the application.
Before a Judge can grant the wiretap warrant, he must be satisifed that the applicant has "reasonable and probable grounds to believe that a specific offence has been, is being, or is about to be committed." The police must also "have reasonable and probable grounds to think that the target of the authorization will in fact be at a particular place, or be communicating in a particular manner" that will give evidence towards to investigation. A fishing expidition is not a proper basis to authorize the wiretap.
Where defence counsel has demonstrated sufficient basis, the court can order the affiant to be subject to cross-examination on the affidavit authorizing the warrant.
Sealing of Authorization
Unsealing of Authorization
Defence counsel may apply to the court under s. 187(1.4) to unseal to authorization. The section states:
(1.4) A judge or provincial court judge before whom a trial is to be held and who has jurisdiction in the province in which an authorization was given may order that the sealed packet be opened and its contents removed for the purpose of copying and examining the documents contained in the packet if
- (a) any matter relevant to the authorization or any evidence obtained pursuant to the authorization is in issue in the trial; and
- (b) the accused applies for such an order for the purpose of consulting the documents to prepare for trial.
Review of Authorization
The review of a wire tap is the same standard as a review of any warrant.
The test to be applied on the review of a wiretap warrant is whether there were "reasonable grounds to believe that the interception of communications may assist in the investigation of the offence. It is not a question of whether there is reasonable grounds to lay changes.
An affiant should be not only full and frank but also ‘clear and concise’”
Interception with Consent
Under 184.2, a person may intercept any private communication where one party consents to the interception.
184.2 (1) A person may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication where either the originator of the private communication or the person intended by the originator to receive it has consented to the interception and an authorization has been obtained pursuant to subsection (3).
(3) An authorization may be given under this section if the judge to whom the application is made is satisfied that
- (a) there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed;
- (b) either the originator of the private communication or the person intended by the originator to receive it has consented to the interception; and
- (c) there are reasonable grounds to believe that information concerning the offence referred to in paragraph (a) will be obtained through the interception sought.
This section was added to the Code in 1993 in response to the decision of R v Duarte  1 SCR 30 which held that there can be a violation of s.8 when an interception occurs with the consent of one of the parties.
Section 184.2 does not violate s. 8 of the Charter for not requiring "investigative necessity" before authorizing a search.
Prevent Bodily Harm
Under s. 184.1 a peace officer may intercept a private communication without judicial authorization:
Interception to prevent bodily harm
184.1 (1) An agent of the state may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication if
- (a) either the originator of the private communication or the person intended by the originator to receive it has consented to the interception;
- (b) the agent of the state believes on reasonable grounds that there is a risk of bodily harm to the person who consented to the interception; and
- (c) the purpose of the interception is to prevent the bodily harm.
Admissibility of intercepted communication
(2) The contents of a private communication that is obtained from an interception pursuant to subsection (1) are inadmissible as evidence except for the purposes of proceedings in which actual, attempted or threatened bodily harm is alleged, including proceedings in respect of an application for an authorization under this Part or in respect of a search warrant or a warrant for the arrest of any person.
This requires that:
- consent of one of the parties to the interception;
- the interceptor reasonably believes there is a risk of bodily harm to the consenting party;
- the purpose of the interception is to prevent bodily harm (such as to an undercover peace officer making a drug buy).
Wiretaps under 184.2 do not require the affiant to establish "investigative necessity" for the wiretap.
Section 164.4 permits warrantless wiretaps in exceptional circumstances. The section states:
Interception in exceptional circumstances
184.4 A peace officer may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication where
- (a) the peace officer believes on reasonable grounds that the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained under any other provision of this Part;
- (b) the peace officer believes on reasonable grounds that such an interception is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property; and
- (c) either the originator of the private communication or the person intended by the originator to receive it is the person who would perform the act that is likely to cause the harm or is the victim, or intended victim, of the harm.
1993, c. 40, s. 4.
This section, in its current form, was determined to be unconstitutional due to a lack of safeguards, including a lack of a notice requirement, reporting requirements to Parliament, record-keeping requirement; and restrictions on the use that can be made of the interceptions.
- R. v. Fegan (1993), 80 C.C.C. (3d) 356
- R. v. Davie (1980), 54 C.C.C. (2d) 216
- R. v. Beckner (1978), 43 C.C.C. (2d) 356 -- officer overhears conversation between accused and a friend; R. v. Kopinsky, 1985 CanLII 1191 (AB QB)
- R. v. Pires; R. v. Lising 2005 SCC 66 at para 41
- R. v. Madrid, 1994 BCCA _,  BCJ No 1786 at 82
- R. v Thompson, 1990 CanLII 43 (SCC),  2 SCR 1111 at p. 1139
- see R. v. Finlay and Grelette 1985 CanLII 117 (ON CA), (1985), 52 O.R. (2d) 632 (C.A.)
- R. v. Della Penna, 2012 BCCA 3 at para 26
- R. v. Finlay and Grellette 1985 CanLII 117 (ON CA), 1985 CanLII 117 (ON C.A.) (1985), 52 O.R. (2d) 632 (C.A.), at p. 656; R. v. Schreinert 2002 CanLII 44932 (ON CA), 2002 CanLII 44932 (ON C.A.) (2002), 165 C.C.C. (3d) 295 (Ont. C.A.), at para. 43, R. v. Ebanks, 2009 ONCA 851 at 33
- R. v. Araujo, 2000 SCC 65 (CanLII), 2000 SCC 65,  2 S.C.R. 992 at para. 46
- R. v. Largie 2010 ONCA 548 (CanLII) under appeal to SCC
- R. v. Tse, 2012 SCC 16