CONSOLIDATED STATUTES OF CANADA
C
Criminal Code
PART VI INVASION OF PRIVACY
Interception of Communications
(5) The Solicitor General of Canada or the Attorney General, as the case may be, may designate a person or persons who may intercept private communications under authorizations.
(6) Renewals of an authorization may be given by a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 on receipt by him of an ex parte application in writing signed by the Attorney General of the province in which the application is made or the Solicitor General of Canada or an agent specially designated in writing for the purposes of section 185 by the Solicitor General of Canada or the Attorney General, as the case may be, accompanied by an affidavit of a peace officer or public officer deposing to the following matters:
(a) the reason and period for which the renewal is required,
(b) full particulars, together with times and dates, when interceptions, if any, were made or attempted under the authorization, and any information that has been obtained by any interception, and
(c) the number of instances, if any, on which, to the knowledge and belief of the deponent, an application has been made under this subsection in relation to the same authorization and on which the application was withdrawn or no renewal was given, the date on which each application was made and the name of the judge to whom each application was made,
and supported by such other information as the judge may require.
(7) A renewal of an authorization may be given if the judge to whom the application is made is satisfied that any of the circumstances described in subsection (1) still obtain, but no renewal shall be for a period exceeding sixty days.
R.S., 1985, c. C-46, s. 186; 1993, c. 40, s. 6; 1997, c. 23, s. 5.
Time limitation in relation to criminal organizations
186.1 Notwithstanding paragraphs 184.2(4)(e) and 186(4)(e) and subsection 186(7), an authorization or any renewal of an authorization may be valid for one or more periods specified in the authorization exceeding sixty days, each not exceeding one year, where the authorization is in relation to
(a) an offence under section 467.1; or
(b) an offence committed for the benefit of, at the direction of or in association with a criminal organization.
1997, c. 23, s. 6.
Manner in which application to be kept secret
187. (1) All documents relating to an application made pursuant to any provision of this Part are confidential and, subject to subsection (1.1), shall be placed in a packet and sealed by the judge to whom the application is made immediately on determination of the application, and that packet shall be kept in the custody of the court in a place to which the public has no access or in such other place as the judge may authorize and shall not be dealt with except in accordance with subsections (1.2) to (1.5).
(1.1) An authorization given under this Part need not be placed in the packet except where, pursuant to subsection 184.3(7) or (8), the original authorization is in the hands of the judge, in which case that judge must place it in the packet and the facsimile remains with the applicant.
Opening for further applications
(1.2) The sealed packet may be opened and its contents removed for the purpose of dealing with an application for a further authorization or with an application for renewal of an authorization.
(1.3) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 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.
Opening on order of trial judge
(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.
Order for destruction of documents
(1.5) Where a sealed packet is opened, its contents shall not be destroyed except pursuant to an order of a judge of the same court as the judge who gave the authorization.
(2) An order under subsection (1.2), (1.3), (1.4) or (1.5) made with respect to documents relating to an application made pursuant to section 185 or subsection 186(6) or 196(2) may only be made after the Attorney General or the Solicitor General by whom or on whose authority the application for the authorization to which the order relates was made has been given an opportunity to be heard.
(3) An order under subsection (1.2), (1.3), (1.4) or (1.5) made with respect to documents relating to an application made pursuant to subsection 184.2(2) or section 184.3 may only be made after the Attorney General has been given an opportunity to be heard.
(4) Where a prosecution has been commenced and an accused applies for an order for the copying and examination of documents pursuant to subsection (1.3) or (1.4), the judge shall not, notwithstanding those subsections, provide any copy of any document to the accused until the prosecutor has deleted any part of the copy of the document that the prosecutor believes would be prejudicial to the public interest, including any part that the prosecutor believes could
(a) compromise the identity of any confidential informant;
(b) compromise the nature and extent of ongoing investigations;
(c) endanger persons engaged in particular intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used; or
(d) prejudice the interests of innocent persons.
Accused to be provided with copies
(5) After the prosecutor has deleted the parts of the copy of the document to be given to the accused under subsection (4), the accused shall be provided with an edited copy of the document.
Original documents to be returned
(6) After the accused has received an edited copy of a document, the prosecutor shall keep a copy of the original document, and an edited copy of the document and the original document shall be returned to the packet and the packet resealed.
(7) An accused to whom an edited copy of a document has been provided pursuant to subsection (5) may request that the judge before whom the trial is to be held order that any part of the document deleted by the prosecutor be made available to the accused, and the judge shall order that a copy of any part that, in the opinion of the judge, is required in order for the accused to make full answer and defence and for which the provision of a judicial summary would not be sufficient, be made available to the accused.
R.S., 1985, c. C-46, s. 187; R.S., 1985, c. 27 (1st Supp.), s. 24; 1993, c. 40, s. 7.
Applications to specially appointed judges
188. (1) Notwithstanding section 185, an application made under that section for an authorization may be made ex parte to a judge of a superior court of criminal jurisdiction, or a judge as defined in section 552, designated from time to time by the Chief Justice, by a peace officer specially designated in writing, by name or otherwise, for the purposes of this section by
(a) the Solicitor General of Canada, if the offence is one in respect of which proceedings, if any, may be instituted by the Government of Canada and conducted by or on behalf of the Attorney General of Canada, or
(b) the Attorney General of a province, in respect of any other offence in the province,
if the urgency of the situation requires interception of private communications to commence before an authorization could, with reasonable diligence, be obtained under section 186.
(2) Where the judge to whom an application is made pursuant to subsection (1) is satisfied that the urgency of the situation requires that interception of private communications commence before an authorization could, with reasonable diligence, be obtained under section 186, he may, on such terms and conditions, if any, as he considers advisable, give an authorization in writing for a period of up to thirty-six hours.
(3) [Repealed, 1993, c. 40, s. 8]
(4) In this section, "Chief Justice" means
(a) in the Province of Ontario, the Chief Justice of the Ontario Court;
(b) in the Province of Quebec, the Chief Justice of the Superior Court;
(c) in the Provinces of Nova Scotia and British Columbia, the Chief Justice of the Supreme Court;
(d) in the Provinces of New Brunswick, Manitoba, Saskatchewan and Alberta, the Chief Justice of the Court of Queen's Bench;
(e) in the Provinces of Prince Edward Island and Newfoundland, the Chief Justice of the Supreme Court, Trial Division; and
(f) in the Yukon Territory and the Northwest Territories, the judge of the Supreme Court with the earliest date of appointment to the court in question.
(5) The trial judge may deem inadmissible the evidence obtained by means of an interception of a private communication pursuant to a subsequent authorization given under this section, where he finds that the application for the subsequent authorization was based on the same facts, and involved the interception of the private communications of the same person or persons, or related to the same offence, on which the application for the original authorization was based.
R.S., 1985, c. C-46, s. 188; R.S., 1985, c. 27 (1st Supp.), ss. 25, 185(F), c. 27 (2nd Supp.), s. 10; 1990, c. 17, s. 10; 1992, c. 1, s. 58, c. 51, s. 35; 1993, c. 40, s. 8.
188.1 (1) Subject to subsection (2), the interception of a private communication authorized pursuant to section 184.2, 184.3, 186 or 188 may be carried out anywhere in Canada.
(2) Where an authorization is given under section 184.2, 184.3, 186 or 188 in one province but it may reasonably be expected that it is to be executed in another province and the execution of the authorization would require entry into or upon the property of any person in the other province or would require that an order under section 487.02 be made with respect to any person in that other province, a judge in the other province may, on application, confirm the authorization and when the authorization is so confirmed, it shall have full force and effect in that other province as though it had originally been given in that other province.
1993, c. 40, s. 9.
No civil or criminal liability
188.2 No person who acts in accordance with an authorization or under section 184.1 or 184.4 or who aids, in good faith, a person who he or she believes on reasonable grounds is acting in accordance with an authorization or under one of those sections incurs any criminal or civil liability for anything reasonably done further to the authorization or to that section.
1993, c. 40, s. 9.
189. (1) to (4) [Repealed, 1993, c. 40, s. 10]
Notice of intention to produce evidence
(5) The contents of a private communication that is obtained from an interception of the private communication pursuant to any provision of, or pursuant to an authorization given under, this Part shall not be received in evidence unless the party intending to adduce it has given to the accused reasonable notice of the intention together with
(a) a transcript of the private communication, where it will be adduced in the form of a recording, or a statement setting out full particulars of the private communication, where evidence of the private communication will be given viva voce; and
(b) a statement respecting the time, place and date of the private communication and the parties thereto, if known.
(6) Any information obtained by an interception that, but for the interception, would have been privileged remains privileged and inadmissible as evidence without the consent of the person enjoying the privilege.
R.S., 1985, c. C-46, s. 189; 1993, c. 40, s. 10.
190. Where an accused has been given notice pursuant to subsection 189(5), any judge of the court in which the trial of the accused is being or is to be held may at any time order that further particulars be given of the private communication that is intended to be adduced in evidence.
1973-74, c. 50, s. 2.
191. (1) Every one who possesses, sells or purchases any electro-magnetic, acoustic, mechanical or other device or any component thereof knowing that the design thereof renders it primarily useful for surreptitious interception of private communications is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
(2) Subsection (1) does not apply to
(a) a police officer or police constable in possession of a device or component described in subsection (1) in the course of his employment;
(b) a person in possession of such a device or component for the purpose of using it in an interception made or to be made in accordance with an authorization;
(b.1) a person in possession of such a device or component under the direction of a police officer or police constable in order to assist that officer or constable in the course of his duties as a police officer or police constable;
(c) an officer or a servant of Her Majesty in right of Canada or a member of the Canadian Forces in possession of such a device or component in the course of his duties as such an officer, servant or member, as the case may be; and
(d) any other person in possession of such a device or component under the authority of a licence issued by the Solicitor General of Canada.
Terms and conditions of licence
(3) A licence issued for the purpose of paragraph (2)(d) may contain such terms and conditions relating to the possession, sale or purchase of a device or component described in subsection (1) as the Solicitor General of Canada may prescribe.
R.S., 1985, c. C-46, s. 191; R.S., 1985, c. 27 (1st Supp.), s. 26.
192. (1) Where a person is convicted of an offence under section 184 or 191, any electro-magnetic, acoustic, mechanical or other device by means of which the offence was committed or the possession of which constituted the offence, on the conviction, in addition to any punishment that is imposed, may be ordered forfeited to Her Majesty whereupon it may be disposed of as the Attorney General directs.
(2) No order for forfeiture shall be made under subsection (1) in respect of telephone, telegraph or other communication facilities or equipment owned by a person engaged in providing telephone, telegraph or other communication service to the public or forming part of the telephone, telegraph or other communication service or system of that person by means of which an offence under section 184 has been committed if that person was not a party to the offence.
1973-74, c. 50, s. 2.
193. (1) Where a private communication has been intercepted by means of an electro-magnetic, acoustic, mechanical or other device without the consent, express or implied, of the originator thereof or of the person intended by the originator thereof to receive it, every one who, without the express consent of the originator thereof or of the person intended by the originator thereof to receive it, wilfully
(a) uses or discloses the private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof, or
(b) discloses the existence thereof,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
(2) Subsection (1) does not apply to a person who discloses a private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof or who discloses the existence of a private communication
(a) in the course of or for the purpose of giving evidence in any civil or criminal proceedings or in any other proceedings in which the person may be required to give evidence on oath;
(b) in the course of or for the purpose of any criminal investigation if the private communication was lawfully intercepted;
(c) in giving notice under section 189 or furnishing further particulars pursuant to an order under section 190;
(d) in the course of the operation of
(i) a telephone, telegraph or other communication service to the public, or
(ii) a department or an agency of the Government of Canada,
if the disclosure is necessarily incidental to an interception described in paragraph 184(2)(c) or (d);
(e) where disclosure is made to a peace officer or prosecutor in Canada or to a person or authority with responsibility in a foreign state for the investigation or prosecution of offences and is intended to be in the interests of the administration of justice in Canada or elsewhere; or
(f) where the disclosure is made to the Director of the Canadian Security Intelligence Service or to an employee of the Service for the purpose of enabling the Service to perform its duties and functions under section 12 of the Canadian Security Intelligence Service Act.
Publishing of prior lawful disclosure
(3) Subsection (1) does not apply to a person who discloses a private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof or who discloses the existence of a private communication where that which is disclosed by him was, prior to the disclosure, lawfully disclosed in the course of or for the purpose of giving evidence in proceedings referred to in paragraph (2)(a).
R.S., 1985, c. C-46, s. 193; R.S., 1985, c. 30 (4th Supp.), s. 45; 1993, c. 40, s. 11.
Disclosure of information received from interception of radio-based telephone communications
193.1 (1) Every person who wilfully uses or discloses a radio-based telephone communication or who wilfully discloses the existence of such a communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years, if
(a) the originator of the communication or the person intended by the originator of the communication to receive it was in Canada when the communication was made;
(b) the communication was intercepted by means of an electromagnetic, acoustic, mechanical or other device without the consent, express or implied, of the originator of the communication or of the person intended by the originator to receive the communication; and
(c) the person does not have the express or implied consent of the originator of the communication or of the person intended by the originator to receive the communication.
(2) Subsections 193(2) and (3) apply, with such modifications as the circumstances require, to disclosures of radio-based telephone communications.
1993, c. 40, s. 12.
194. (1) Subject to subsection (2), a court that convicts an accused of an offence under section 184, 184.5, 193 or 193.1 may, on the application of a person aggrieved, at the time sentence is imposed, order the accused to pay to that person an amount not exceeding five thousand dollars as punitive damages.
No damages where civil proceedings commenced
(2) No amount shall be ordered to be paid under subsection (1) to a person who has commenced an action under Part II of the Crown Liability Act.
(3) Where an amount that is ordered to be paid under subsection (1) is not paid forthwith, the applicant may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the accused in the same manner as if it were a judgment rendered against the accused in that court in civil proceedings.
Moneys in possession of accused may be taken
(4) All or any part of an amount that is ordered to be paid under subsection (1) may be taken out of moneys found in the possession of the accused at the time of his arrest, except where there is a dispute respecting ownership of or right of possession to those moneys by claimants other than the accused.
R.S., 1985, c. C-46, s. 194; 1993, c. 40, s. 13.
195. (1) The Solicitor General of Canada shall, as soon as possible after the end of each year, prepare a report relating to
(a) authorizations for which he and agents to be named in the report who were specially designated in writing by him for the purposes of section 185 made application, and
(b) authorizations given under section 188 for which peace officers to be named in the report who were specially designated by him for the purposes of that section made application,
and interceptions made thereunder in the immediately preceding year.
Information respecting authorizations
(2) The report referred to in subsection (1) shall, in relation to authorizations and interceptions made thereunder, set out
(a) the number of applications made for authorizations;
(b) the number of applications made for renewal of authorizations;
(c) the number of applications referred to in paragraphs (a) and (b) that were granted, the number of those applications that were refused and the number of applications referred to in paragraph (a) that were granted subject to terms and conditions;
(d) the number of persons identified in an authorization against whom proceedings were commenced at the instance of the Attorney General of Canada in respect of
(i) an offence specified in the authorization,
(ii) an offence other than an offence specified in the authorization but in respect of which an authorization may be given, and
(iii) an offence in respect of which an authorization may not be given;
(e) the number of persons not identified in an authorization against whom proceedings were commenced at the instance of the Attorney General of Canada in respect of
(i) an offence specified in such an authorization,
(ii) an offence other than an offence specified in such an authorization but in respect of which an authorization may be given, and
(iii) an offence other than an offence specified in such an authorization and for which no such authorization may be given,
and whose commission or alleged commission of the offence became known to a peace officer as a result of an interception of a private communication under an authorization;
(f) the average period for which authorizations were given and for which renewals thereof were granted;
(g) the number of authorizations that, by virtue of one or more renewals thereof, were valid for more than sixty days, for more than one hundred and twenty days, for more than one hundred and eighty days and for more than two hundred and forty days;
(h) the number of notifications given pursuant to section 196;
(i) the offences in respect of which authorizations were given, specifying the number of authorizations given in respect of each of those offences;
(j) a description of all classes of places specified in authorizations and the number of authorizations in which each of those classes of places was specified;
(k) a general description of the methods of interception involved in each interception under an authorization;
(l) the number of persons arrested whose identity became known to a peace officer as a result of an interception under an authorization;
(m) the number of criminal proceedings commenced at the instance of the Attorney General of Canada in which private communications obtained by interception under an authorization were adduced in evidence and the number of those proceedings that resulted in a conviction; and
(n) the number of criminal investigations in which information obtained as a result of the interception of a private communication under an authorization was used although the private communication was not adduced in evidence in criminal proceedings commenced at the instance of the Attorney General of Canada as a result of the investigations.
(3) The report referred to in subsection (1) shall, in addition to the information referred to in subsection (2), set out
(a) the number of prosecutions commenced against officers or servants of Her Majesty in right of Canada or members of the Canadian Forces for offences under section 184 or 193; and
(b) a general assessment of the importance of interception of private communications for the investigation, detection, prevention and prosecution of offences in Canada.
Report to be laid before Parliament
(4) The Solicitor General of Canada shall cause a copy of each report prepared by him under subsection (1) to be laid before Parliament forthwith on completion thereof, or if Parliament is not then sitting, on any of the first fifteen days next thereafter that Parliament is sitting.
(5) The Attorney General of each province shall, as soon as possible after the end of each year, prepare and publish or otherwise make available to the public a report relating to
(a) authorizations for which he and agents specially designated in writing by him for the purposes of section 185 made application, and
(b) authorizations given under section 188 for which peace officers specially designated by him for the purposes of that section made application,
and interceptions made thereunder in the immediately preceding year setting out, with such modifications as the circumstances require, the information described in subsections (2) and (3).
R.S., 1985, c. C-46, s. 195; R.S., 1985, c. 27 (1st Supp.), s. 27.
Written notification to be given
196. (1) The Attorney General of the province in which an application under subsection 185(1) was made or the Solicitor General of Canada if the application was made by or on behalf of the Solicitor General of Canada shall, within ninety days after the period for which the authorization was given or renewed or within such other period as is fixed pursuant to subsection 185(3) or subsection (3) of this section, notify in writing the person who was the object of the interception pursuant to the authorization and shall, in a manner prescribed by regulations made by the Governor in Council, certify to the court that gave the authorization that the person has been so notified.
Extension of period for notification
(2) The running of the ninety days referred to in subsection (1), or of any other period fixed pursuant to subsection 185(3) or subsection (3) of this section, is suspended until any application made by the Attorney General or the Solicitor General to a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 for an extension or a subsequent extension of the period for which the authorization was given or renewed has been heard and disposed of.
(3) Where the judge to whom an application referred to in subsection (2) is made, on the basis of an affidavit submitted in support of the application, is satisfied that
(a) the investigation of the offence to which the authorization relates, or
(b) a subsequent investigation of an offence listed in section 183 commenced as a result of information obtained from the investigation referred to in paragraph (a),
is continuing and is of the opinion that the interests of justice warrant the granting of the application, the judge shall grant an extension, or a subsequent extension, of the period, each extension not to exceed three years.
Application to be accompanied by affidavit
(4) An application pursuant to subsection (2) shall be accompanied by an affidavit deposing to
(a) the facts known or believed by the deponent and relied on to justify the belief that an extension should be granted; and
(b) the number of instances, if any, on which an application has, to the knowledge or belief of the deponent, been made under that subsection in relation to the particular authorization and on which the application was withdrawn or the application was not granted, the date on which each application was made and the judge to whom each application was made.
Exception for criminal organization
(5) Notwithstanding subsections (3) and 185(3), where the judge to whom an application referred to in subsection (2) or 185(2) is made, on the basis of an affidavit submitted in support of the application, is satisfied that the investigation is in relation to
(a) an offence under section 467.1, or
(b) an offence committed for the benefit of, at the direction of or in association with a criminal organization,
and is of the opinion that the interests of justice warrant the granting of the application, the judge shall grant an extension, or a subsequent extension, of the period, but no extension may exceed three years.
R.S., 1985, c. C-46, s. 196; R.S., 1985, c. 27 (1st Supp.), s. 28; 1993, c. 40, s. 14; 1997, c. 23, s. 7.
CONSOLIDATED STATUTES OF CANADA
C
Criminal Code
PART VI INVASION OF PRIVACY
Interception of Communications