183

February 4, 2019 Dallas Mack

Definitions

183 In this Part,

authorization means an authorization to intercept a private communication given under section 186 or subsection 184.2(3), 184.3(6) or 188(2); (autorisation)

electro-magnetic, acoustic, mechanical or other device means any device or apparatus that is used or is capable of being used to intercept a private communication, but does not include a hearing aid used to correct subnormal hearing of the user to not better than normal hearing; (dispositif électromagnétique, acoustique, mécanique ou autre)

intercept includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof; (intercepter)

offence means an offence contrary to, any conspiracy or attempt to commit or being an accessory after the fact in relation to an offence contrary to, or any counselling in relation to an offence contrary to

(a) any of the following provisions of this Act, namely,

(i) section 47 (high treason),

(ii) section 51 (intimidating Parliament or a legislature),

(iii) section 52 (sabotage),

(iii.1) section 56.1 (identity documents),

(iv) section 57 (forgery, etc.),

(v) section 61 (sedition),

(vi) section 76 (hijacking),

(vii) section 77 (endangering safety of aircraft or airport),

(viii) section 78 (offensive weapons, etc., on aircraft),

(ix) section 78.1 (offences against maritime navigation or fixed platforms),

(x) section 80 (breach of duty),

(xi) section 81 (using explosives),

(xii) section 82 (possessing explosives),

(xii.01) section 82.3 (possession, etc., of nuclear material, radioactive material or device),

(xii.02) section 82.4 (use or alteration of nuclear material, radioactive material or device),

(xii.03) section 82.5 (commission of indictable offence to obtain nuclear material, etc.),

(xii.04) section 82.6 (threats),

(xii.1) section 83.02 (providing or collecting property for certain activities),

(xii.2) section 83.03 (providing, making available, etc., property or services for terrorist purposes),

(xii.3) section 83.04 (using or possessing property for terrorist purposes),

(xii.4) section 83.18 (participation in activity of terrorist group),

(xii.41) section 83.181 (leaving Canada to participate in activity of terrorist group),

(xii.5) section 83.19 (facilitating terrorist activity),

(xii.51) section 83.191 (leaving Canada to facilitate terrorist activity),

(xii.6) section 83.2 (commission of offence for terrorist group),

(xii.61) section 83.201 (leaving Canada to commit offence for terrorist group),

(xii.62) section 83.202 (leaving Canada to commit offence that is terrorist activity),

(xii.7) section 83.21 (instructing to carry out activity for terrorist group),

(xii.8) section 83.22 (instructing to carry out terrorist activity),

(xii.81) subsection 83.221(1) (advocating or promoting commission of terrorism offences),

(xii.9) section 83.23 (harbouring or concealing),

(xii.91) section 83.231 (hoax — terrorist activity),

(xiii) section 96 (possession of weapon obtained by commission of offence),

(xiii.1) section 98 (breaking and entering to steal firearm),

(xiii.2) section 98.1 (robbery to steal firearm),

(xiv) section 99 (weapons trafficking),

(xv) section 100 (possession for purpose of weapons trafficking),

(xvi) section 102 (making automatic firearm),

(xvii) section 103 (importing or exporting knowing it is unauthorized),

(xviii) section 104 (unauthorized importing or exporting),

(xix) section 119 (bribery, etc.),

(xx) section 120 (bribery, etc.),

(xxi) section 121 (fraud on government),

(xxii) section 122 (breach of trust),

(xxiii) section 123 (municipal corruption),

(xxiv) section 132 (perjury),

(xxv) section 139 (obstructing justice),

(xxvi) section 144 (prison breach),

(xxvii) subsection 145(1) (escape, etc.),

(xxvii.1) section 162 (voyeurism),

(xxvii.2) section 162.1 (intimate image),

(xxviii) subsection 163(1) (obscene materials),

(xxix) section 163.1 (child pornography),

(xxix.1) section 170 (parent or guardian procuring sexual activity),

(xxix.2) section 171 (householder permitting sexual activity),

(xxix.3) section 171.1 (making sexually explicit material available to child),

(xxix.4) section 172.1 (luring a child),

(xxix.5) section 172.2 (agreement or arrangement — sexual offence against child),

(xxx) section 184 (unlawful interception),

(xxxi) section 191 (possession of intercepting device),

(xxxii) subsection 201(1) (keeping gaming or betting house),

(xxxiii) paragraph 202(1)(e) (pool-selling, etc.),

(xxxiv) [Repealed, 2019, c. 25, s. 63.1]

(xxxv) to (xxxviii) [Repealed, 2014, c. 25, s. 11]

(xxxix) section 235 (murder),

(xxxix.1) section 244 (discharging firearm with intent),

(xxxix.2) section 244.2 (discharging firearm — recklessness),

(xl) section 264.1 (uttering threats),

(xli) section 267 (assault with a weapon or causing bodily harm),

(xlii) section 268 (aggravated assault),

(xliii) section 269 (unlawfully causing bodily harm),

(xliii.1) section 270.01 (assaulting peace officer with weapon or causing bodily harm),

(xliii.2) section 270.02 (aggravated assault of peace officer),

(xliv) section 271 (sexual assault),

(xlv) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm),

(xlvi) section 273 (aggravated sexual assault),

(xlvii) section 279 (kidnapping),

(xlvii.1) section 279.01 (trafficking in persons),

(xlvii.11) section 279.011 (trafficking of a person under the age of eighteen years),

(xlvii.2) section 279.02 (material benefit),

(xlvii.3) section 279.03 (withholding or destroying documents),

(xlviii) section 279.1 (hostage taking),

(xlix) section 280 (abduction of person under sixteen),

(l) section 281 (abduction of person under fourteen),

(li) section 282 (abduction in contravention of custody order),

(lii) section 283 (abduction),

(lii.1) 286.1 (obtaining sexual services for consideration),

(lii.2) 286.2 (material benefit from sexual services),

(lii.3) 286.3 (procuring),

(lii.4) 286.4 (advertising sexual services),

(liii) section 318 (advocating genocide),

(liv) section 327 (possession of device to obtain telecommunication facility or service),

(liv.1) section 333.1 (motor vehicle theft),

(lv) section 334 (theft),

(lvi) section 342 (theft, forgery, etc., of credit card),

(lvi.1) section 342.01 (instruments for copying credit card data or forging or falsifying credit cards),

(lvii) section 342.1 (unauthorized use of computer),

(lviii) section 342.2 (possession of device to obtain unauthorized use of computer system or to commit mischief),

(lix) section 344 (robbery),

(lx) section 346 (extortion),

(lxi) section 347 (criminal interest rate),

(lxii) section 348 (breaking and entering),

(lxii.1) section 353.1 (tampering with vehicle identification number),

(lxiii) section 354 (possession of property obtained by crime),

(lxiii.1) section 355.2 (trafficking in property obtained by crime),

(lxiii.2) section 355.4 (possession of property obtained by crime — trafficking),

(lxiv) section 356 (theft from mail),

(lxv) section 367 (forgery),

(lxvi) section 368 (use, trafficking or possession of forged document),

(lxvi.1) section 368.1 (forgery instruments),

(lxvii) section 372 (false information),

(lxviii) section 380 (fraud),

(lxix) section 381 (using mails to defraud),

(lxx) section 382 (fraudulent manipulation of stock exchange transactions),

(lxx.1) subsection 402.2(1) (identity theft),

(lxx.2) subsection 402.2(2) (trafficking in identity information),

(lxx.3) section 403 (identity fraud),

(lxxi) section 423.1 (intimidation of justice system participant or journalist),

(lxxii) section 424 (threat to commit offences against internationally protected person),

(lxxii.1) section 424.1 (threat against United Nations or associated personnel),

(lxxiii) section 426 (secret commissions),

(lxxiv) section 430 (mischief),

(lxxv) section 431 (attack on premises, residence or transport of internationally protected person),

(lxxv.1) section 431.1 (attack on premises, accommodation or transport of United Nations or associated personnel),

(lxxv.2) subsection 431.2(2) (explosive or other lethal device),

(lxxvi) section 433 (arson),

(lxxvii) section 434 (arson),

(lxxviii) section 434.1 (arson),

(lxxix) section 435 (arson for fraudulent purpose),

(lxxx) section 449 (making counterfeit money),

(lxxxi) section 450 (possession, etc., of counterfeit money),

(lxxxii) section 452 (uttering, etc., counterfeit money),

(lxxxiii) section 462.31 (laundering proceeds of crime),

(lxxxiv) subsection 462.33(11) (acting in contravention of restraint order),

(lxxxv) section 467.11 (participation in criminal organization),

(lxxxv.1) section 467.111 (recruitment of members — criminal organization),

(lxxxvi) section 467.12 (commission of offence for criminal organization), or

(lxxxvii) section 467.13 (instructing commission of offence for criminal organization),

(b) section 198 (fraudulent bankruptcy) of the Bankruptcy and Insolvency Act,

(b.1) any of the following provisions of the Biological and Toxin Weapons Convention Implementation Act, namely,

(i) section 6 (production, etc., of biological agents and means of delivery), or

(ii) section 7 (unauthorized production, etc., of biological agents),

(b.2) any of the following provisions of the Cannabis Act, namely,

(i) section 9 (distribution and possession for purpose of distributing),

(ii) section 10 (selling and possession for purpose of selling),

(iii) section 11 (importing and exporting and possession for purpose of exporting),
(iv) section 12 (production),
(v) section 13 (possession, etc., for use in production or distribution of illicit cannabis), or
(vi) section 14 (use of young person),

(c) any of the following provisions of the Competition Act, namely,
- (i) section 45 (conspiracies, agreements or arrangements between competitors),
- (ii) section 47 (bid-rigging), or
- (iii) subsection 52.1(3) (deceptive telemarketing),
(d) any of the following provisions of the Controlled Drugs and Substances Act, namely,
- (i) section 5 (trafficking),
- (ii) section 6 (importing and exporting),
- (iii) section 7 (production), or
- (iv) section 7.1 (possession, sale, etc., for use in production or trafficking),
(d.1) section 42 (offences related to infringement of copyright) of the Copyright Act,
(e) section 3 (bribing a foreign public official) of the Corruption of Foreign Public Officials Act,
(e.1) the Crimes Against Humanity and War Crimes Act,
(f) either of the following provisions of the Customs Act, namely,
- (i) section 153 (false statements), or
- (ii) section 159 (smuggling),
(g) any of the following provisions of the Excise Act, 2001, namely,
- (i) section 214 (unlawful production, sale, etc., of tobacco, alcohol or cannabis),
- (ii) section 216 (unlawful possession of tobacco product),
- (iii) section 218 (unlawful possession, sale, etc., of alcohol),
- (iii.1) section 218.1 (unlawful possession, sale, etc., of unstamped cannabis),
- (iv) section 219 (falsifying or destroying records),
- (v) section 230 (possession of property obtained by excise offences), or
- (vi) section 231 (laundering proceeds of excise offences),
(h) any of the following provisions of the Export and Import Permits Act, namely,
- (i) section 13 (export or attempt to export),
- (ii) section 14 (import or attempt to import),
- (iii) section 15 (diversion, etc.),
- (iv) section 16 (no transfer of permits),
- (v) section 17 (false information), or
- (vi) section 18 (aiding and abetting),
(i) any of the following provisions of the Immigration and Refugee Protection Act, namely,
- (i) section 117 (organizing entry into Canada),
- (ii) section 118 (trafficking in persons),
- (iii) section 119 (disembarking persons at sea),
- (iv) section 122 (offences related to documents),
- (v) section 126 (counselling misrepresentation), or
- (vi) section 129 (offences relating to officers),
(j) any offence under the Security of Information Act, or
(k) section 51.01 (offences related to goods, labels, packaging or services) of the Trade-marks Act,

and includes any other offence that there are reasonable grounds to believe is a criminal organization offence or any other offence that there are reasonable grounds to believe is an offence described in paragraph (b) or (c) of the definition terrorism offence in section 2; (infraction)

police officer means any officer, constable or other person employed for the preservation and maintenance of the public peace; (policier)

private communication means any oral communication, or any telecommunication, that is made by an originator 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 in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it; (communication privée)

public switched telephone network means a telecommunication facility the primary purpose of which is to provide a land line-based telephone service to the public for compensation; (réseau téléphonique public commuté)

radio-based telephone communication means any radiocommunication within the meaning of the Radiocommunication Act that is made over apparatus that is used primarily for connection to a public switched telephone network; (communication radiotéléphonique)

sell includes offer for sale, expose for sale, have in possession for sale or distribute or advertise for sale; (vendre)

solicitor means, in the Province of Quebec, an advocate or a notary and, in any other province, a barrister or solicitor. (avocat)

183.1

February 4, 2019 Dallas Mack

Consent to interception

183.1 Where a private communication is originated by more than one person or is intended by the originator thereof to be received by more than one person, a consent to the interception thereof by any one of those persons is sufficient consent for the purposes of any provision of this Part.

184

February 4, 2019 Dallas Mack

Interception

184 (1) Every person who, by means of any electro-magnetic, acoustic, mechanical or other device, knowingly intercepts a private communication is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction.

Saving provision

(2) Subsection (1) does not apply to

(a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it;

(b) a person who intercepts a private communication in accordance with an authorization or pursuant to section 184.4 or any person who in good faith aids in any way another person who the aiding person believes on reasonable grounds is acting with an authorization or pursuant to section 184.4;

(c) a person engaged in providing a telephone, telegraph or other communication service to the public who intercepts a private communication,

(i) if the interception is necessary for the purpose of providing the service,

(ii) in the course of service observing or random monitoring necessary for the purpose of mechanical or service quality control checks, or

(iii) if the interception is necessary to protect the person’s rights or property directly related to providing the service;

(d) an officer or servant of Her Majesty in right of Canada who engages in radio frequency spectrum management, in respect of a private communication intercepted by that officer or servant for the purpose of identifying, isolating or preventing an unauthorized or interfering use of a frequency or of a transmission; or

(e) a person, or any person acting on their behalf, in possession or control of a computer system, as defined in subsection 342.1(2), who intercepts a private communication originating from, directed to or transmitting through that computer system, if the interception is reasonably necessary for

(i) managing the quality of service of the computer system as it relates to performance factors such as the responsiveness and capacity of the system as well as the integrity and availability of the system and data, or

(ii) protecting the computer system against any act that would be an offence under subsection 342.1(1) or 430(1.1).

Use or retention

(3) A private communication intercepted by a person referred to in paragraph (2)(e) can be used or retained only if

(a) it is essential to identify, isolate or prevent harm to the computer system; or

(b) it is to be disclosed in circumstances referred to in subsection 193(2).

184.1

February 4, 2019 Dallas Mack

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.

Destruction of recordings and transcripts

(3) The agent of the state who intercepts a private communication pursuant to subsection (1) shall, as soon as is practicable in the circumstances, destroy any recording of the private communication that is obtained from an interception pursuant to subsection (1), any full or partial transcript of the recording and any notes made by that agent of the private communication if nothing in the private communication suggests that bodily harm, attempted bodily harm or threatened bodily harm has occurred or is likely to occur.

Definition of agent of the state

(4) For the purposes of this section, agent of the state means

(a) a peace officer; and

(b) a person acting under the authority of, or in cooperation with, a peace officer.

184.2

February 4, 2019 Dallas Mack

Interception with consent

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).

Application for authorization

(2) An application for an authorization under this section shall be made by a peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, ex parte and in writing to a provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552, and shall be accompanied by an affidavit, which may be sworn on the information and belief of that peace officer or public officer or of any other peace officer or public officer, deposing to the following matters:

(a) that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed;

(b) the particulars of the offence;

(c) the name of the person who has consented to the interception;

(d) the period for which the authorization is requested; and

(e) in the case of an application for an authorization where an authorization has previously been granted under this section or section 186, the particulars of the authorization.

Judge to be satisfied

(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.

Content and limitation of authorization

(4) An authorization given under this section 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 the terms and conditions that the judge considers advisable in the public interest; and

(e) be valid for the period, not exceeding sixty days, set out therein.

Related warrant or order

(5) A judge who gives an authorization under this section may, at the same time, issue a warrant or make an order under any of sections 487, 487.01, 487.014 to 487.018, 487.02, 492.1 and 492.2 if the judge is of the opinion that the requested warrant or order is related to the execution of the authorization.

184.3

February 4, 2019 Dallas Mack

Application by means of telecommunication

184.3 (1) Notwithstanding section 184.2, an application for an authorization under subsection 184.2(2) may be made ex parte to a provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552, by telephone or other means of telecommunication, if it would be impracticable in the circumstances for the applicant to appear personally before a judge.

Application

(2) An application for an authorization made under this section shall be on oath and shall be accompanied by a statement that includes the matters referred to in paragraphs 184.2(2)(a) to (e) and that states the circumstances that make it impracticable for the applicant to appear personally before a judge.

Recording

(3) The judge shall record, in writing or otherwise, the application for an authorization made under this section and, on determination of the application, shall cause the writing or recording to be placed in the packet referred to in subsection 187(1) and sealed in that packet, and a recording sealed in a packet shall be treated as if it were a document for the purposes of section 187.

Oath

(4) For the purposes of subsection (2), an oath may be administered by telephone or other means of telecommunication.

Alternative to oath

(5) An applicant who uses a means of telecommunication that produces a writing may, instead of swearing an oath for the purposes of subsection (2), make a statement in writing stating that all matters contained in the application are true to the knowledge or belief of the applicant and such a statement shall be deemed to be a statement made under oath.

Authorization

(6) Where the judge to whom an application is made under this section is satisfied that the circumstances referred to in paragraphs 184.2(3)(a) to (c) exist and that the circumstances referred to in subsection (2) make it impracticable for the applicant to appear personally before a judge, the judge may, on such terms and conditions, if any, as are considered advisable, give an authorization by telephone or other means of telecommunication for a period of up to thirty-six hours.

Giving authorization

(7) Where a judge gives an authorization by telephone or other means of telecommunication, other than a means of telecommunication that produces a writing,

(a) the judge shall complete and sign the authorization in writing, noting on its face the time, date and place at which it is given;

(b) the applicant shall, on the direction of the judge, complete a facsimile of the authorization in writing, noting on its face the name of the judge who gave it and the time, date and place at which it was given; and

(c) the judge shall, as soon as is practicable after the authorization has been given, cause the authorization to be placed in the packet referred to in subsection 187(1) and sealed in that packet.

Giving authorization where telecommunication produces writing

(8) Where a judge gives an authorization by a means of telecommunication that produces a writing, the judge shall

(a) complete and sign the authorization in writing, noting on its face the time, date and place at which it is given;

(b) transmit the authorization by the means of telecommunication to the applicant, and the copy received by the applicant shall be deemed to be a facsimile referred to in paragraph (7)(b); and

(c) as soon as is practicable after the authorization has been given, cause the authorization to be placed in the packet referred to in subsection 187(1) and sealed in that packet.

184.4

February 4, 2019 Dallas Mack

Immediate interception — imminent harm

184.4 A police officer may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication if the police officer has reasonable grounds to believe that

(a) 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 interception is immediately necessary to prevent an offence 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 commit the offence that is likely to cause the harm or is the victim, or intended victim, of the harm.

184.5

February 4, 2019 Dallas Mack

Interception of radio-based telephone communications

184.‍5 (1) Every person who intercepts, by means of any electro-magnetic, acoustic, mechanical or other device, maliciously or for gain, a radio-based telephone communication, if the originator of the communication or the person intended by the originator of the communication to receive it is in Canada, is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction.

Other provisions to apply

(2) Section 183.1, subsection 184(2) and sections 184.1 to 190 and 194 to 196 apply, with such modifications as the circumstances require, to interceptions of radio-based telephone communications referred to in subsection (1).

184.6

February 4, 2019 Dallas Mack

One application for authorization sufficient

184.6 For greater certainty, an application for an authorization under this Part may be made with respect to both private communications and radio-based telephone communications at the same time.

185

February 4, 2019 Dallas Mack

Application for authorization

185 (1) An application for an authorization to be given under section 186 shall be made ex parte and in writing to a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 and shall be signed by the Attorney General of the province in which the application is made or the Minister of Public Safety and Emergency Preparedness or an agent specially designated in writing for the purposes of this section by

(a) the Minister personally or the Deputy Minister of Public Safety and Emergency Preparedness personally, if the offence under investigation is one in respect of which proceedings, if any, may be instituted at the instance of the Government of Canada and conducted by or on behalf of the Attorney General of Canada, or

(b) the Attorney General of a province personally or the Deputy Attorney General of a province personally, in any other case,

and shall be accompanied by an affidavit, which may be sworn on the information and belief of a peace officer or public officer deposing to the following matters:

(c) the facts relied on to justify the belief that an authorization should be given together with particulars of the offence,

(d) the type of private communication proposed to be intercepted,

(e) the names, addresses and occupations, if known, of all persons, the interception of whose private communications there are reasonable grounds to believe may assist the investigation of the offence, a general description of the nature and location of the place, if known, at which private communications are proposed to be intercepted and a general description of the manner of interception proposed to be used,

(f) the number of instances, if any, on which an application has been made under this section in relation to the offence and a person named in the affidavit pursuant to paragraph (e) and on which the application was withdrawn or no authorization was given, the date on which each application was made and the name of the judge to whom each application was made,

(g) the period for which the authorization is requested, and

(h) whether other investigative procedures have been tried and have failed or why it appears they are unlikely to succeed or that the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

Exception for criminal organizations and terrorist groups

(1.1) Notwithstanding paragraph (1)(h), that paragraph does not apply where the application for an authorization is in relation to

(a) an offence under section 467.11, 467.111, 467.12 or 467.13;

(b) an offence committed for the benefit of, at the direction of or in association with a criminal organization; or

(c) a terrorism offence.

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) 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), 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), 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).

Where extension not granted

(4) Where the judge to whom an application for an authorization and an application referred to in subsection (2) are made refuses to fix a period in substitution for the period mentioned in subsection 196(1) or where the judge fixes a period in substitution therefor that is less than the period set out in the application referred to in subsection (2), the person appearing before the judge on the application for the authorization may withdraw the application for the authorization and thereupon the judge shall not proceed to consider the application for the authorization or to give the authorization and shall return to the person appearing before him on the application for the authorization both applications and all other material pertaining thereto.

186

February 4, 2019 Dallas Mack

Judge to be satisfied

186 (1) An authorization under this section may be given if the judge to whom the application is made is satisfied

(a) that it would be in the best interests of the administration of justice to do so; and

(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

Exception for criminal organizations and terrorism offences

(1.1) Notwithstanding paragraph (1)(b), that paragraph does not apply where the judge is satisfied that the application for an authorization is in relation to

(a) an offence under section 467.11, 467.111, 467.12 or 467.13;

(b) an offence committed for the benefit of, at the direction of or in association with a criminal organization; or

(c) a terrorism offence.

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), 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.

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;

(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.

Persons designated

(5) The Minister of Public Safety and Emergency Preparedness or the Attorney General, as the case may be, may designate a person or persons who may intercept private communications under authorizations.

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) 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.

Renewal of authorization

(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 or her of an ex parte application in writing signed by the Attorney General of the province in which the application is made or the Minister of Public Safety and Emergency Preparedness — or an agent specially designated in writing for the purposes of section 185 by the Minister 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.

Renewal

(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.

Related warrant or order

(8) A judge who gives an authorization under this section may, at the same time, issue a warrant or make an order under any of sections 487, 487.01, 487.014 to 487.018, 487.02, 492.1 and 492.2 if the judge is of the opinion that the requested warrant or order is related to the execution of the authorization.

186.1

February 4, 2019 Dallas Mack

Time limitation in relation to criminal organizations and terrorism offences

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 467.11, 467.111, 467.12 or 467.13;

(b) an offence committed for the benefit of, at the direction of or in association with a criminal organization; or

(c) a terrorism offence.

187

February 4, 2019 Dallas Mack

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).

Exception

(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.

Marginal note:Opening on order of judge

(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.

Order of judge

(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 Minister of Public Safety and Emergency Preparedness 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.

Idem

(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.

Editing of copies

(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.

Deleted parts

(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.

Documents to be kept secret — related warrant or order

(8) The rules provided for in this section apply to all documents relating to a request for a related warrant or order referred to in subsection 184.2(5), 186(8) or 188(6) with any necessary modifications.

188

February 4, 2019 Dallas Mack

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 Minister of Public Safety and Emergency Preparedness, 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.

Authorizations in emergency

(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]

Definition of Chief Justice

(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, British Columbia and Prince Edward Island, and in the Yukon and the Northwest Territories, 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 Province of Newfoundland and Labrador, the Chief Justice of the Supreme Court, Trial Division; and

(f) in Nunavut, the Chief Justice of the Nunavut Court of Justice.

Inadmissibility of evidence

(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.

Related warrant or order

(6) A judge who gives an authorization under this section may, at the same time, issue a warrant or make an order under any of sections 487, 487.01, 487.014 to 487.018, 487.02, 492.1 and 492.2 if the judge is of the opinion that the requested warrant or order is related to the execution of the authorization, that the urgency of the situation requires the warrant or the order and that it can be reasonably executed or complied with within 36 hours.

188.1

February 4, 2019 Dallas Mack

Execution in Canada

188.‍1 An authorization given under section 184.‍2, 184.‍3, 186 or 188 may be executed at any place in Canada. Any peace officer who executes the authorization must have authority to act as a peace officer in the place where it is executed.

Marginal note:Execution in another province

(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.

188.2

February 4, 2019 Dallas Mack

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.

189

February 4, 2019 Dallas Mack

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.

Privileged evidence

(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.

190

February 4, 2019 Dallas Mack

Further particulars

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.

191

February 4, 2019 Dallas Mack

Possession, etc.

191 (1) Every person who possesses, sells or purchases any electro-magnetic, acoustic, mechanical or other device or any component of it knowing that its design renders it primarily useful for surreptitious interception of private communications is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than two years; or

(b) an offence punishable on summary conviction.

Exemptions

(2) Subsection (1) does not apply to

(a) a police officer 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 in order to assist that officer in the course of his duties as a police officer;

(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 Minister of Public Safety and Emergency Preparedness.

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 Minister of Public Safety and Emergency Preparedness may prescribe.

192

February 4, 2019 Dallas Mack

Forfeiture

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.

Limitation

(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.