Chapter 9 - Electronic Surveillance “Invasion of Privacy” part of the CCC was introduced to: (a) _ protect privacy in a time when there was growing concern about 3" party interception of private communications *(by creating criminal offenses for the unauthorized interception of private communications), and; (b) _ to properly authorize the interception of private communications (by providing a framework for authorizing such where the need for effective law enforcement outweighs the need to protect the right to privacy). Always two potentially competing considerations: ~ right to privacy and the right of the state to intrude on privacy in the furtherance of its responsibilities for law enforcement N fs JThe Crime 184. (1) 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. (184.5 was added later to cover cell-phone conversations). Covers almost any type of interception device, save innocent devices to assist hearing (i.e. hearing aids) “Intercepts” covers a recording or simply listening, but only between people (Davie) and not if “legally answering” (McQueen (ACA), Singh (BCCA)). “private communication” means any communication that is made from or to Canada under circumstances reasonable by any person, and includes any radio-based telephone communication made [in code]; There must be a REOP for the communication to meet the definition of “private” (use Edwards analysis): * Not if you think you are being monitored (Tam, kidnap); * Less in a setting such as a correctional center where monitoring might disclose a threat to security (Napope), but inmates may need to be informed that calls are monitored (Rodney), and sol/client privilege still applies; + E-mail has a lower EOP than regular mail (Weir, internet porn busted by ISP provider); * Lower EOP in school property (Wilson, OSC, laptop); * Non-discreet pager message not covered (Lubovac, ACA); *Note impact of the “system” you use to communicate. } 1sP a Reasonoldu oOh the agicowThe Exceptions S. 184 (2) provides some exceptions to the offense, including: 1) Where judicial authorization is obtained; 2) Where one of the parties has consented; 3) Certain “exigent interceptions” (pursuant to s, 184); 4) Service providers monitoring for service purposes. udicial sti : 5 Under s. 185/6, an ex parte application to intercept a private communication can be made, which must be: a) signed by AG or designee; b) made to a superior court judge only; c) for an offense listed in s. 183; d) supported by an affidavit (usually from a PO) which must set out: i) Facts relied on to justify the wiretap with offense particulars; ii) | Type of communication to be intercepted; iii) Names/addresses/occupations, if known, of communicators, place of communication, and means of interception; iv) Period of authorization requested (cannot exceed 60 days); v) Ifother means have been tried, if not, why not, and why it would be impractical to use other means. The SCC has stated that a “basket clause”, authorizing the interception of a broad range of communications, is invalid. The judge must indicate as specifically as possible the target, or at least “class of targets” authorized for interception. wv a p Cosino yn buBase | on # DD: In order to grant an authorization under s. 186, the judge must be satisfied that: a) it is in the BI of the AOJ to authorize the wiretap (“Reasonable Grounds” threshold); and, b) Other methods have either been tried and failed, are unlikely to work, or some urgency necessitates this method (“Necessity” threshold). In Duarte, the SCC stated that the “BI of the AOJ” imported a minimum threshold that the judge has RG to believe an offense has taken place and the authorization will afford evidence of it. Ay In Araujo, the SCC rejected both “efficiency” and “last resort” ) tests for the necessity threshold, instead saying that “there must be, practically speaking, no other reasonable alternative method of investigation” in the circumstances. A 130 pg AffDav, using 10 sources, “attested to the failure of police efforts in spite of the use of physical surveillance and search warrants. It also provided evidence as to why the use of informants or undercover agents trying to infiltrate the drug ring would be ineffective and potentially dangerous. There was thus evidence in the affidavit to negate arguments for other investigative techniques and to make the case that wiretapping was, practically speaking, the only reasonable alternative, taking into account the nature and purpose of this particular investigation.” *Note - the necessity component is not required for investigations of criminal organizations. If the subject of an authorization under s. 185/6, you must be notified within 90 days of the expiry of such authorization or any subsequent renewal. This can be extended by application for up to 3 years if “in the interests of justice”.2. Consent Interceptions If one of the parties to the communication consents to its interception, such interception is nota crime under s.184. However, in Duarte (drug dealer on camera case), the SCC decided that consent exception, if used as an instrument of the state, constituted a violation of s.8 of the Charter. Thus, “participant surveillance”, by agents of the state, is a violation ofs.8 unless authorization is obtained. Following Duarte, section 184.2 was added to the CCC to allow applications for authorization to intercept private communications where one of the participants consents. A “Consent Authorization” can be granted under s.184.2: a) For any federal offense (not just s.183 offenses); b) By a provincial or superior court judge; c) Where the judge is satisfied there are RG to believe and offense has been committed and information concerning the offense will be obtained through the interception. te - way & 3. Exigent Interceptions $.184.1 - “Protection wire” - allows interception with consent where there is risk of harm to consentor, and interception is made to prevent harm. Any recordings or evidence obtained is inadmissible except for cases where actual, attempted or threatened harm is alleged, and if no bodily harm is not discussed, any recording must be destroyed. s. 184.4 - “Harm prevention wire” - allows interception where authorization is impractical, and it is believed on RG interception is necessary to prevent an unlawful act causing harm (found unconstitutional in BC but not in Ontario).Use of Cameras In 1993, s.487.01 was added to allow judges to authorize “any device or investigative technique” that would constitute an unreasonable search and seizure without a warrant. Covers “emerging technology”, and currently covers cameras. In order to authorize installation of a camera: a) Information given under oath must show RG that an offense has been or will be committed, and info concerning it will be obtained; b) Judge must feel it is in the BI of the AOJ, and that the warrant is not available elsewhere in the CCC; ) The offense in question must be a s.183 offense; d) Where there is a REOP in the area monitored, the warrant shall set limits to minimize intrusion; e) Proper notifications under s.186 are required. Challenging a Wiretap Where a wiretap authorization is challenged, an accused is basically asserting that the wiretap was in violation of section 8, and the standard 24(2) analysis follows if it is determined that no such authorization should have been obtained. A reviewing judge does not substitute their view for the authorizing judge’s. If, based on what was before the authorizing judge the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere (Garafoli, Araujo). If there is a challenge to the authorization itself, the “packet” used to authorize the original wiretap must be made available to the defense, with minor edits allowable (only to protect ongoing investigations, informants, or other innocent people).Eleammc Svru ul lonre steto wi wvree te cahize) "aS Sed Meee HN raver Bott ts prisecy Trsion F Privac A) CrienynalrzevecuiTnor reed interceptions oF Q.C.S ®) Cte © Ga Thor ietien Kamw work The Crome S134. vain “ony, dewice to willfuily * inbscept a ee in Conada &/t “fo geo lat oR NBT Reine ames I 3 sh oil (DO Vdecraily Asthori ud Deru F ww oy pst bo wtexegtel 5. 155/ Fast acre bch Shi) REOe- Educads violdes 9:6 © done Seals SA ae aggeued —_ Stede neastic SarvellY cee by sup chs ge on (Muests) = aoe ©) 5.183 ohms oy OS gig 4) KO. with SIGH. 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