Is it illegal for a private person to intercept a private communication in Canada?

When is it legal?

"intercept" includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof.

Listening to it

When is a communication private?

·      A communication is private when there is “reasonable expectation of privacy”. The circumstances surrounding the communication will assist the courts in determining whether there is a reasonable expectation of privacy.

Student Sally may record her conversations with student Sam without committing a criminal offence.

True or false?

Student Sally may record her roommate’s conversations with Student Sam without committing a criminal offence.

True or false?

The Supreme Court of Canada has decided that a basket clause in an authorization to intercept private communications is valid.

True or false?

Police interceptions of private communications between Student Sally and Student Sam are admissible at trial so long as the police have the permission of one or the other of them.

True or false?

Undercover police officers may record conversations they have with alleged criminals provide there are grounds to believe there is a risk of bodily harm to them and the interception is made to prevent bodily harm.

True or false?

The interceptions mentioned in question 7 are admissible in court as evidence of the offence being investigated.

True or false?

In order obtain judicial authorization to intercept private communications on the basis that “other investigative procedures are unlikely to succeed,” investigating officers must demonstrate that there is “no other reasonable alternative method of investigation, in the circumstances of the particular inquiry”. However, the requirement of investigative necessity does not apply to offences involving criminal organizations or terrorist activities.

True or false?

Before conducting a Mr. Big investigation, the police must demonstrate investigative necessity and obtain judicial authorization.

True or false?

False

The test simply is whether, practically speaking, there are no other reasonable alternative methods in the circumstances to conduct that particular investigation”

An accused person, whose telephone has been tapped, is not permitted to access the sealed packet of documents related to the wiretap authorization because it could compromise the investigation.

True or false?

Private communication: Section 183:

When is communication private?

·      A communication is private when there is “reasonable expectation of privacy”. The circumstances surrounding the communication will assist the courts in determining whether there is a reasonable expectation of privacy.

·       For example: provides authority for the proposition that a communication with God is not a private communication. In addition, telephone calls to a police switch board are not private communications

·       There is no exception of privacy where correctional officers are allowed to record communications in a correctional centre that might disclose “a threat to the management operation, discipline or security”.

The legislative Scheme: Protecting privacy:

·     

What is section 184(1) and 184(2)?

What is the penalty for breaching section 184(1)?

Section 184(1) creates indictable offence of willfully intercepting a private communication by means of an “electro-magnetic, acoustic, mechanical or other device”

Section 184(2) specifies the exceptions to the offences. It is not an offence, for example, to intercept a communication without consent of one of the parties, to intercept a communication with judicial authorization, or to intercept a communication in the case of an emergency pursuant to section 184.4.

5 years imprisonment

Under what section is it a criminal offence to sell or purchase the various types of equipment designed to intercept private communications?

·      Section 191(1) makes it an indictable offence to possess, sell or purchase the various types of equipment designed to intercept private communications, subject to a number of exceptions provided in subsection (2).

What are sections 193 and 193.1?

· Makes it an indictable offence to use or disclose information that is intercepted or the fact that it was intercepted. These two offences carry a maximum penalty of two years.

True or false?

State interception by consent, without authorization, is unconstitutional (illegal):

·      Supreme court of Canada decided that the criminal code permission to record conversations with one party’s consent did not violate section 8 of the charter. But, its use by the state without prior authorization, even with the consent of the originator or intended recipient, did infringe section 8.

One Party consent Authorizations, Section 184.2

When are one party consent authorizations acceptable?

·       Section 184.2 allows the interception of private communications by the police in situations where one party consents, and where a designated police officer or public officer has obtained prior authorization from a judge.  (It is not an offence if you have the consent of one of the parties).

However, the judge must be 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.

c.     There are reasonable grounds to believe that information concerning the offence referred to the paragraph a) will be obtained through the interception sought.

Unauthorized consent interception to prevent bodily harm Section 184.1

When can police officer intercept private communications with consent of one of the parties?

·      Section 184.1 allows an agent of the state (police officer) to intercept private communications with the consent of one of the parties, where there are grounds to believe that there is a risk of bodily harm to the person who consented, and where the interception is made to prevent bodily harm.

·      These interceptions are inadmissible in court, except in proceedings where “actual, attempted or threatened bodily harm is alleged”.

·      Section 184.1 (3) requires the agent of the state to destroy the recording and any notes of it, unless the conversations suggest bodily harm has or is likely to occur. The purpose of the interception is to protect an agent from bodily harm not to gather evidence.

Unauthorized Emergency interception: Section 184.4:

Can police officers intercept without judicial authorization for urgency reasons?

·      Section 184.4 allows peace officers to intercept private communications in situations where it is not practical to get authorization for urgency reasons, 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 to property”. And either party to the communication is “likely to cause harm or is the victim, or intend to hard them victim”.

·      This is the only wiretapping power that does not require consent of one of the parties to the communication or judicial pre authorization.

No-Consent authorizations: Sections 185 AND 186:

What happens when police are unable to receive consent from a party?

What can the police do?

What is the application called?

When the police cannot obtain the consent of a party to a conversation they wish to intercept they may seek judicial authorization by an application under section 185.    

This application is ex porte, meaning that no notice is given to the person whose communications are to be intercepted.    

No-Consent authorizations: Sections 185 AND 186:

Who must the ex parte application be signed and accompanied by?

·      The application under S.185 must be signed by the attorney general of the province, the federal minister of public safety, or their designate. The application is accompanied by an affidavit, usually that of a police officer, which includes information required by section 185(1):

A false affidavit (a written statement confirmed by oath or affirmation, for use as evidence in court). 

Can lead to what?

·      Application to intercept is presented to the judge in chambers by a designated prosecutor usually along with the police officer who swore the affidavit (a written statement confirmed by oath or affirmation, for use as evidence in court).

o   False affidavit’s can lead to charges of perjury and obstruction of justice.

What is section 186 and what does it state?

·      Section 186 gives judge the discretion to issue an authorization for which an officer has applied under section 185. Section 186 states that the judge must be satisfied.

o   A) That it would be in the best interests of the administration of justice to do so; and

o   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.

What is an Investigative necessity:

Section 186(1)(b) states that..

In the past, courts have described the investigative necessity requirement in section 186(1)(b) to mean either a test of “last resort” or “the only practical investigative technique available” 

The issuing judge may be satisfied that:

1. other investigative precedures have been tried and have failed.

2. other investigative procedures are unlikely to succeed, or

3. 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.

Interception of communications by lawyers:

·      What are sections 186(2) and (3)?

o   State that authorizations may not be made to intercept conversation of lawyers at their offices, residents, or at any other place ordinarily used by a lawyer for the purpose of consulting with clients, unless the judge is satisfied that there are reasonable grounds to believe that a lawyer is or Is about to become a party of an offence.

Renewals:

Authorizations are made for a set period of time (not more than 60 days), the minister of public safety or the attorney general of a province may apply for renewals under section 186(6), and such an application may be accompanied by an affidavit.    

Emergency authorizations: Section 188:

·      Section 188(2) allows for pre authorizations in case of emergencies , where there is not enough time to obtain an authorization under section 185.

Notification of target and reporting:

·      Section 196 requires that those who have been the objects of authorization under section 185 be notified of such authorizations and interception within 90 days after the authorization or renewal expires.

The admission of electronic surveillance as evidence:

·      If proper procedures under the criminal code for the interception of private communications are followed, the evidence will be admissible. However, if the evidence was obtained in a manner that violated the accused rights under section 8 of the charter, the court will determine the admissibility of the evidence under section 24(2) in accordance to the grant framework.

QUESTIONS:

1.)  What actions can people take against someone who illegally intercepts their private communication?

Section 184(1) of the Criminal Code sets out the general rule that it is illegal to willfully intercept a private communication:

“Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.”

  Is it an offence to record your telephone conversations with a friend of yours without judicial authorization? Explain your answer.

It is illegal unless your friend consents to being recorded.

 Do the police need judicial authorization to record telephone conversations between you and your friend, if you consent to the recording? Explain your answer.

·      State interception by consent, without authorization, is unconstitutional (illegal).

·      Under section 194.1 Police can intercept a private communication with the consent of one of the parties, where there are grounds to believe that there is a risk of bodily harm to the person who consented, and where the interception is made to prevent bodily harm.

·      These interceptions are inadmissible in court unless there was bodily harm alleged.

·      If there was no bodily harm the police officer must destroy the recording and any notes of it in section 184.1(3)

 Is it an offence if you put a secret recorder on your telephone to record all the conversations of your roommate?

Yes, there must be a consent from one of the parties. This violates the individual rights under section 8 of the charter    

In an application under section 186 for authorization to intercept a private communication, what must the judge be satisfied of? What exception is there for terrorism offences?’    

·      These authorizations, unlike the ones under section 186, can be made either by a provincial court or superior court judge, and can be obtained where the judge 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.

c.     There are reasonable grounds to believe that information concerning the offence referred to the paragraph a) will be obtained through the interception sought.

7.) Joey’s grandfather, Joseph, likes to visit the local coffee shop and sit in the corner booth, reading his newspaper. In fact, what he really does is listen to the conversations of those around him by turning up his hearing aid, so he can hear at least twice as well as normal people in the coffee shop. Joseph then uses this information to entertain his friends at home for the elderly, where he lives. Joey is concerned that his grandfather might get into trouble for doing this. Explain to joey the law governing his grandfather, and the type of trouble his grandfather might find him self in.

• He can be charged under section 184(1) because he is wilfully intercepting a private communication, which can be exceeding for no more than 5 years.

8.) Do people have a reasonable expectation of privacy in their text-messages?

Yes, they have personal communication in their phones

The police are searching jack’s house for stolen properly pursuant to a search warrant. They unexpectedly came across jack’s computer and they have reasonable grounds to believe that the computer is being used to keep track of his illegal buying and selling. Do the police need an additional search warrant to search his computer? Explain.

No, if the police believe that there are reasonable grounds to believe that there is something illegal going on then they do not need a search warrant to search his computer. They must have reasonable grounds to believe that the accused may destruct the evidence on the computer.

9.)Under what circumstances can an accused cross-examine an affiant who swears an information to obtain a wire tap authorization?

10.) How do warrants to use camera surveillance under section 487.01 compare to wiretap authorizations under section 185?

11.) What arguments could you make that all state intercepted communications should be subject to part VI (the wiretap provisions) of the criminal code    

  Should the police be required to obtain judicial authorization to conduct undercover interaction with suspects which involves engaging them in conversations in order to elicit confessions (a Mr. Big investigation).

Yes, or else it would violate section 8 of the charter.

1.     Explain what “other investigative procedures are unlikely to succeed” means when it comes to obtaining judicial authorization to intercept private communications.

1.     It is not an offence to record activities by camera or similar device, even if there is a reasonable expectation of privacy in the circumstances (with the notable exception of the offence of voyeurism introduced into the Criminal Code in 2005). Discuss the advantages and disadvantages of this present law.

What is a Garofoli application? Under what circumstance might defence counsel make such an application? Describe the process of a Garofoli application.

The accused had to show relevance and materiality before being allowed to cross examine the affiant (usually the police officer who swears the information in support of the authorization).

Subsection 198(7) allows the accused to ask the trial judge to review the crown’s editing. The judge can order the information disclosed if he or she believes that disclosure is “required in order for the accused to make full answer and defence and for which the provincial or judicial summary would not be sufficient”. The edited packet is accessible to the accused under the right to full disclosure.

The application process:

1.)    The crown alone reviews the packet containing the officer’s affidavit. If the crown wants certain information in the packet redacted, he or she must ask the trial judge’s permission to do this and explain why or she is making the request.

2.)    The trial judge should then edit the affidavit accordingly and give the accused person’s lawyer a copy. The defence lawyer may complain that he or she does understand the nature of the deletions. Crown submissions might clarify matters but if they do not the trial judge should provide the defence lawyer with a “judicial summary as to the general nature of the deletions”.

3.)    Having reviewed that summary the defence lawyer may make further submission, as may the crown, and the trial judge “should make a final determination as to editing”

4.)    Then the crown should provide the edited material to the accused person.

5.)    The crown will then have to establish that the edited affidavit still meets the criminal code criteria for issuance of a wiretap authorization.

6.)    If the crown cannot do this then he or she may as the trial judge to “consider” just so much of the excised material “as is necessary to support the authorization.” (not done).

    Give two examples of the type of behaviour occurring in the 1960s that gave the federal government the incentive to introduce wiretap laws in Canada. How would the new legislation have impacted such behaviour?

A public inquiry was help in BC into allegations that rival unions were bugging one another’s conversations. For example, car sale firms were bugging booths, partners and spouses were hiring private detectives to record conversations.

The police are investigating Brenda for the murder of her husband Harry. They have some evidence to suggest that Brenda may have had some assistance from Billy in the killing of Harry. The police would like to intercept Brenda's conversations with Billy without either of them knowing about the interception. Explain to the police how they would go about getting judicial authorization to intercept Brenda's conversations and what they would have to establish.

What arguments could you make to the government to have all of our communications subject to authorization before the police can lawfully obtain them?