Annual report on the use of electronic surveillance - 2011

Annual report on the use of electronic surveillance - 2011 PDF Version (205 KB)
Table of contents

Section I - Introduction

Part VI of the Criminal Code (C.C.) sets out procedures for the law enforcement community to obtain judicial authorization to conduct electronic surveillance of private communications for criminal investigations. These procedures are to be carried out in such a way so as to ensure that the privacy of individuals is respected as much as possible during the surveillance.

As a measure of accountability, section 195 of the Criminal Code requires the Minister of Public Safety and Emergency Preparedness to prepare and present to Parliament an annual report on the use of electronic surveillance under Part VI for offences that may be prosecuted by or on behalf of the Attorney General of Canada. In particular, the annual report must include the following information:

The 2011 Annual Report covers a five-year period from 2007 to 2011. The Report includes new statistics for the period from January 1, 2011 to December 31, 2011, and updates the figures for the years 2007 to 2010.

The 2011 Annual Report is organized in the following manner:

Section II - Overview of Part VI of the Criminal Code

As indicated in Section I, Part VI of the Criminal Code sets out procedures for the law enforcement community to obtain judicial authorization to conduct electronic surveillance for criminal investigations.

Designated peace officers and agents can only obtain this authorization to intercept private communications for certain offences, which are listed in section 183 of the Criminal Code. These offences include serious offences such as facilitating terrorist activity, weapons trafficking, child pornography, child abductions, drug trafficking, and organized crime offences.

Part VI also sets out the requirements that must be met to apply for and obtain authorization to intercept private communications. These requirements include the following:

Generally, authorizations are not issued for a period of time longer than 60 days (paragraph 186(4)(e)). Designated persons may apply to a judge to have the authorization renewed, which extends the period of time during which they can lawfully conduct electronic surveillance. Before the judge may renew the authorization, he or she must be satisfied that the same circumstances that applied to the original application for authorization still apply (subsections 186(6) and 186(7)).

Provisions also permit designated persons to obtain judicial authorization to intercept private communications in emergency situations. Under section 188 of the Criminal Code, a peace officer designated by the Minister of Public Safety and Emergency Preparedness may apply to a judge for an authorization if the urgency of the situation requires interception of private communications, but there is not enough time to use the regular application process to obtain an authorization. An authorization considered in these circumstances may be issued for a period of up to thirty-six hours, and the judge may impose terms and conditions.

In addition to applying for an authorization to intercept private communications under Part VI, peace officers and agents may apply to a judge for a general warrant under section 487.01 of the Criminal Code. This section enables the issuance of a warrant for the use of any device or investigative technique that is not contemplated elsewhere in the Criminal Code or any other Act of Parliament. For example, this type of warrant would allow peace officers to carry out video surveillance of a person in circumstances where the person has a reasonable expectation of privacy. As with other judicial authorizations, certain requirements must be met before a warrant can be issued. In the case of warrants issued pursuant to section 487.01, these requirements include the following:

Section III - StatisticsFootnote 2

Applications for authorizations and renewals

Paragraphs 195(2)(a) and (b) of the Criminal Code require statistics relating to:

(a) the number of applications made for authorizations;

(b) the number of applications made for renewal of authorizations;

Table 1: Applications for authorizations and renewals
Type of application made Number of applications
2007 2008 2009 2019 2011
Audio s.185 C.C.

70

85

93

69

68
Video s.487.01 C.C.

37

11

29

30

35
Renewals s.186 C.C.

5

16

10

9

13
Emergency audio s.188 C.C.

1

2

1

0

0
Emergency video s.487.01 C.C.

0

0

0

0

0
Total

113

114

133

108

116

Table 1 presents the number of applications made for audio and video authorizations and renewals each year for the five‑year period from 2007 to 2011. The data is categorized by the three types of applications for which authorizations may be granted: audio and video applications (maximum duration sixty days) and renewals thereof pursuant to subsections 185(1) and 186(6) and section 487.01 of the Criminal Code, and emergency applications (maximum duration 36 hours) pursuant to subsection 188(1) and section 487.01 of the Criminal Code.

Paragraph 195(2)(c) of the Criminal Code requires information relating to:

(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;

Note: 2 applications for an authorization or a renewal were refused for the 2007-2011 period, both of which were in 2008.

Figure 1: Number of applications granted, refused and subject to terms and conditions
2007 2008 2009 2010 2011
With Terms and Conditions 109 110 132 107 113
Without Terms and Conditions 3 1 1 1 0

Period for which authorizations and renewals were granted

Paragraph 195(2)(f) of the Criminal Code requires information relating to:

(f) the average period for which authorizations were given and for which renewals thereof were granted;

Table 2: average period for which authorizations and renewals were granted
Type of authorization Average period of time valid
2007 2008 2009 2010 2011
Audio s.185 C.C. (days)

63.8

60.0

57.2

72.1

71.7
Video s.487.01 C.C. (days)

64.3

50.9

53.1

78.7

96.0
Emergency audio s.188 C.C. (hours)

24.0

72.0

36.0

0

0
Emergency video s.487.01 C.C. (hours)

0

0

0

0

0

Calculations for the “average period of time valid” include authorizations and renewals where applicable. Further, it is important to note that although authorizations originally granted or renewed may be valid for a period of up to sixty days; this does not necessarily mean interceptions are made during the entire period. For example, sufficient evidence may be obtained as a result of the authorization to prove the offence and to lay charges prior to the expiration of the authorization.

Paragraph 195(2)(g) of the Criminal Code requires information relating to:

(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;

Table 3: Authorization Renewals
Renewal period (days) Number of authorizations renewed
2007 2008 2009 2010 2011
61-120

4

11

7

6

8
121-180

0

1

2

3

1
181-240

0

1

1

0

2
241 or more

0

1

0

0

1
Total renewals

4

14

10

9

12

The categories in Table 3 are mutually exclusive. For example, an authorization valid for a period of sixty days which was renewed for a further sixty days is counted in the category 61‑120 days, and an authorization of sixty days coupled with three sixty-day renewals would be counted in the 181‑240 category.

Offences specified in authorizations

Paragraph 195(2)(i) of the Criminal Code requires information relating to:

(i) the offences in respect of which authorizations were given, specifying the number of authorizations given in respect of each of those offences;

Table 4: Offences specified in authorizations
Statute Type of offence Number of Authorizations
2007 2008 2009 2010 2011
Controlled Drugs and Substances Act Possession of Substance s. 4 1 2 0 0 0
Trafficking ss. 5(1) 69 76 107 65 71
Possession of a narcotic
for the purpose of trafficking ss. 5(2)		 66 71 84 69 74
Importing and exporting ss. 6(1) 37 37 45 46 53
Possession for the purpose
of exporting ss. 6(2)		 18 2 6 1 0
Production s. 7 18 13 34 20 21
Customs
Act		 False statements s.153 0 0 1 0 8
Smuggling/attempt
to smuggle goods into Canada     s. 159		 5 0 1 0 14
Excise
Act		 Unlawful possession or sale of improperly packaged tobacco     s.32 0 0 0 0 1
Unlawful production, sale, etc. of tobacco or alcohol s.214 0 0 0 0 4
Unlawful possession of tobacco product s. 216 8 2 1 0 9
Falsifying or destroying records s.219 0 0 0 0 8
Possession of property obtained
by excise offenses                    s. 230		 0 0 1 0 0
Immigration and Refugee Protection Act Organizing entry into Canada  s. 117 0 0 1 0 0
Offences related to documents s. 122 0 0 1 0 0
Counselling misrepresentation s. 126 0 0 1 0 0
Forgery of passport                    s. 57 0 0 1 0 0
Criminal Code Using explosives                        s. 81 1 1 0 0 0
Possessing explosives                s. 82 1 0 0 0 0
Providing or collecting property
for certain activities              s. 83.02		 1 3 0 6 0
Providing, making available, etc. property or services for terrorist activities                                s. 83.03 1 3 0 2 0
Using or possessing property for terrorist purposes                  s. 83.04 1 3 0 0 0
Criminal Code Participation in the activity of a terrorist group                     s. 83.18 1 3 0 17 1
Facilitating terrorist activities                                                            
s. 83.19		 1 3 2 17 1
Commission of an offense
for a terrorist group               s. 83.2		 0 0 0 18 0
Instructing to carry out activity for a terrorist group               s. 83.21 1 3 0 1 0
Instructing to carry out terrorist activity                             s. 83.22 1 3 0 0 0
Possession of a prohibited
weapon                                 s. 90		 0 0 1 0 0
Unauthorized possession of a firearm                                  s. 91 0 0 0 1 0
Importing or exporting of prohibited weapons              s. 95 0 1 2 0 0
Possession of weapons obtained by commission of offence         s. 96 0 2 2 1 0
Weapons trafficking             s. 99 2 4 4 5 3
Possession for the purpose of weapons smuggling        s. 100 0 1 1 4 2
Importing or exporting (knowing it is unauthorized)                  s. 103 0 0 0 0 2
Unauthorized importing or exporting                             s. 104 0 0 0 5 2
Bribery                                s. 120 3 2 0 4 4
Breach of trust                    s. 122 7 5 0 2 0
Obstructing justice                  s. 139 1 4 1 0 6
Keeping gaming or betting house                                   s.201 0 0 0 2 6
Betting, pool-selling, book-making, etc.                                      s. 202 1 0 4 5 2
Murder                                s. 235 11 12 10 9 5
Manslaughter                      s. 236 0 0 0 1 0
Attempted murder               s. 239 2 2 0 7 0
Accessory after the fact      s. 240 1 0 1 6 3
Dangerous operation of Motor Vehicles, Vessels and Aircraft causing bodily harm       ss. 249(3) 0 1 0 0 0
Criminal Code Dangerous operation of Motor Vehicles, Vessels and Aircraft causing death                ss. 249(4) 0 1 0 0 0
Uttering death threats       s. 264.1 7 1 0 0 0
Assault with a weapon
or causing bodily harm       s. 267		 0 3 2 2 0
Aggravated assault             s. 268 2 8 4 3 1
Kidnapping                         s. 279 2 2 0 0 0
Hostage Taking                 s.279.1 0 1 0 0 0
Abduction in contravention of custody order                      s. 282 0 0 1 0 0
Theft                                    s. 334 0 2 2 0 0
Theft, forgery, etc., of credit card                                                
s. 342		 0 1 1 4 0
Robbery                              s. 344 3 4 1 1 7
Extortion                             s. 346 6 1 1 0 8
Criminal interest rate          s. 347 0 0 1 1 0
Break and enter                   s. 348 0 1 0 0 0
Possession of property
obtained by crime               s. 354		 61 50 68 43 64
Possession of property obtained by the commission of an offence
s. 355 		12 8 4 3 2
Fraud                                   s. 380 9 2 9 1 0
Fraudulent manipulation of stock exchange transactions         s. 382 0 0 1 0 0
Arson – disregard for human life                                             
s. 433		 3 1 0 0 0
Arson – damage to property s. 434 1 0 0 0 0
Possession of incendiary material                                         
s. 436.1		 1 0 0 0 0
Laundering proceeds of counterfeit money                            s. 462.31 63 30 46 20 42
Attempts, accessories          s. 463 25 16 37 27 44
Counselling                         s. 464 24 17 33 25 46
Criminal Code Conspiracy                        s. 465 100 95 109 76 97
Participating in activities of a criminal organization s. 467.11 24 16 7 25 30
Commission of an offence for a criminal organization s. 467.12 17 14 9 26 26
Instructing commission of an offence for a criminal organization                  s. 467.13 6 11 5 10 14

Most authorizations granted to agents by the Minister of Public Safety and Emergency Preparedness provide for the use of electronic surveillance in relation to more than one offence. A typical example of such an authorization would be in relation to sections 5 (trafficking), 6 (importing and exporting), and 7 (production) of the Controlled Drugs and Substances Act and conspiracy under section 465 of the Criminal Code to commit these offences. Table 4 represents the number of times specific offences were identified in authorizations granted to agents of the Minister of Public Safety and Emergency Preparedness. For example, of the 116 authorizations granted in 2011, 71 of these authorizations specifically provided for the use of electronic surveillance in connection with trafficking a narcotic, 74 for possession for the purpose of trafficking and 53 for importing and exporting.

Classes of places and methods of interception

Paragraph 195(2)(j) of the Criminal Code requires information relating to:

(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;

Table 5: Classes of places and methods of interception
Class of place Number of authorizations
2007 2008 2009 2010 2011
Residence (permanent)

47

60

70

41

29
Residence (temporary)

4

8

9

5

3
Commercial Premises

18

21

21

18

10
Vehicles

19

37

23

22

12
Other

33

43

52

26

20

Paragraph 195(2)(k) of the Criminal Code requires information relating to:

(k) a general description of the methods of interception involved in each interception under an authorization;

Table 6: Method and Number of Interceptions
Method of interception Number of interceptions
2007 2008 2009 2010 2011
Telecommunication

643

825

919

575

540
Microphone

149

115

113

67

54
Video

45

23

33

19

15
Other

96

102

147

222

26
Total

933

1065

1212

883

635

Legal proceedings, use of intercepted material and disposition

Paragraph 195(2)(l) of the Criminal Code requires information relating to:

(l) the number of persons arrested whose identity became known to a peace officer as a result of an interception under an authorization;

Figure 2: number of persons arrested
2007 2008 2009 2010 2011
Persons arrested 442 699 586 550 294

Paragraph 195(2)(d) of the Criminal Code requires information relating to:

(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:

  1. an offence specified in the authorization,
  2. an offence other than an offence specified in the authorization but in respect of which an authorization may be given, and
  3. an offence in respect of which an authorization may not be given;
Table 7: number of persons identified against whom proceedings were commenced
Category of offence Number of persons
against whom proceedings were commenced
(identified in authorization)
2007 2008 2009 2010 2011
Offence specified in authorization

264

349

297

275

146
Offence for which an authorization may be given but not specified in the authorization

58

122

163

43

20
Offence for which no authorization may be given

20

71

100

15

1

Paragraph 195(2)(e) of the Criminal Code requires information relating to:

(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:

  1. an offence specified in such an authorization,
  2. an offence other than an offence specified in such an authorization but in respect of which an authorization may be given, and
  3. 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;

Table 8 : number of persons not identified against whom proceedings were commenced
Category of offence Number of persons
against whom proceedings were commenced (not identified in authorization)
2007 2008 2009 2010 2011
Offence specified in authorization

157

154

196

194

88
Offence for which an authorization may be given but not specified in the authorization

31

64

46

100

14
Offence for which no authorization may be given

24

60

83

10

0

Tables 7 and 8 contain information relating to the number of persons charged for all types of offences, including Criminal Code offences. Moreover, the three categories of offences are not treated as being mutually exclusive, and persons charged with more than one category of offence are counted more than once. Therefore, one cannot add the columns in Tables 7 and 8 to obtain the total number of persons.

Tables 7 and 8 are interrelated. Table 7 provides information on the number of persons identified in an authorization who were charged with specific categories of offences, i.e., an offence specified in the authorization, an offence other than an offence specified in such an authorization but in respect to which an authorization may be given, or an offence other than an offence specified in such an authorization and for which no such authorization may be given. Table 8 provides similar information on persons not identified in an authorization, but who were charged as a result of information from the authorized interception.

Paragraph 195(2)(m) of the Criminal Code requires information relating to:

(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;

Figure 3: Number of criminal proceedings commenced where evidence was adduced and number of resulting convictions
2007 2008 2009 2010 2011
Criminal proceedings/Evidence adduced 413 478 316 399 124
Convictions 224 51 79 9 0

Paragraph 195(2)(n) of the Criminal Code requires information relating to:

(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.

Figure 4: Number of criminal investigations where evidence was not adduced and number of resulting convictions
2007 2008 2009 2010 2011
Criminal proceedings/Evidence not adduced 374 151 165 24 14
Convictions 317 72 83 21 0

Notifications

Pursuant to subsection 196(1) of the Criminal Code, the Minister of Public Safety and Emergency Preparedness is required to notify in writing the person who was the object of the interception. Furthermore, paragraph 195(2)(h) requires that the Annual Report of the Minister of Public Safety and Emergency Preparedness provide:

(h) the number of notifications given pursuant to section 196.

Figure 5: number of notifications given
2007 2008 2009 2010 2011
Number of notifications given 1010 1420 1023 1013 1111

Notice is served on those persons whose communications were intercepted, and who were identified in the authorization, either by name, or unnamed but known (e.g., the unidentified female living with John Doe). In cases where the person was identified but unnamed in the authorization, notification is to be served on such persons where sufficient information is acquired to effect notification. As well, notification may be delayed by a judge for up to three years if the investigation is continuing, is in relation to a terrorism offence or an offence associated with a criminal organization, and the judge is of the opinion that the extension would be in the interest of justice.

Prosecutions for unlawful interceptions and unlawful disclosure

Paragraph 195(3)(a) of the Criminal Code requires that the Annual Report provide information relating to:

(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 section 193;

No such prosecutions have been initiated for the period of 2007 to 2011

Subsection 184(1) of the Criminal Code, with a number of specific exceptions, makes it an offence for a person to wilfully intercept a private communication by means of an electromagnetic, acoustic, mechanical or other device. Subsection 193(1), with similar specific exceptions, makes it an offence to disclose private communications that are lawfully intercepted, or to disclose the existence of such intercepted communications.

Section IV - General assessment

Paragraph 195(3)(b) of the Criminal Code requires that the Annual Report provide:

(b) a general assessment of the importance of interception of private communications for the investigation, detection, prevention and prosecution of offences in Canada.

Investigation

The lawful interception of private communications is a vital tool used by law enforcement agencies. It is of great assistance to complex criminal investigations involving threats to national security and serious crimes. The statistics presented in Section III of this report indicate that the majority of authorizations issued are in relation to the offence of trafficking in a controlled substance.

Detection

The illegal activities of organized criminal groups and terrorist activity, just to name a few, would remain largely undetected were it not for the active investigation of the police. Offences such as money laundering, smuggling, drug trafficking or participation in the activity of a terrorist group, present serious threats to the safety and stability of Canadian communities, and the lawful interception of private communications provides a means for the police to investigate the commission of such offences.

Prevention

The use of electronic surveillance in investigations has led to numerous drug seizures, leading to a reduction in the amount of illicit drugs and crime associated with their abuse. Without this crucial tool, the ability of the law enforcement community to prevent crimes and ensuing social harm would be seriously hindered.

Prosecution

Investigations of the activities of organized crime groups are increasingly complex and sometimes criminal charges are difficult to prove in a court of law. The use of electronic surveillance often provides strong evidence against those accused of being involved in illegal activities, increasing the likelihood of conviction. The prosecution of such offenders increases public confidence in the criminal justice system and contributes to public safety by holding such persons responsible for their actions.

Appendix A

Paragraph 195(1)(a) of the Criminal Code requires information relating to “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”.

Designated agents who made applications in accordance with subsections 185(1) and 487.01(1) of the Criminal Code were:

Appendix B

Paragraph 195(1)(b) of the Criminal Code requires information relating to “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”.

No designated Peace Officers made applications in accordance with subsections 188(1) and 487.01(1) of the Criminal Code in 2011.

  1. 1

    A “peace officer” is defined in section 2 of the Criminal Code and includes police officers.

  2. 2

    It should be noted that the numbers reported in this section will likely increase in future years to reflect updated statistics from Canadian police forces.

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