Annual Report on the Use of Electronic Surveillance - 2018

Introduction

Part VI of the Criminal Code sets out the provisions for the law enforcement community to obtain judicial authorization to conduct electronic surveillance of private communications for criminal investigations. This section also sets out provisions to conduct electronic surveillance of private communications without judicial authorization when there is imminent harm, such as in the case of kidnappings or bomb threats. 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.

The 2018 Annual Report covers a five-year period from 2014 to 2018. The Report includes new statistics for the period from January 1, 2018 to December 31, 2018 and updated figures for the years 2014 to 2017.

The Annual Report must include the following information:

• the number of applications made for authorizations, or for renewal of authorizations;
• the number of applications granted with or without terms and conditions, as well as the number of applications that were refused;
• the number of persons identified in an authorization who were charged for various offences;
• the number of persons not identified in an authorization, but who were arrested or charged for various offences because they became known to peace officers^{Note 1} as a result of authorized surveillance;
• the average time for which authorizations were issued and for which renewals were granted;
• the number of authorizations valid for more than 60, 120, 180 and 240 days;
• the number of notifications given to people who had private communications intercepted;
• the types of offences for which authorizations were granted;
• a description of the classes of places set out in authorizations, and the number of authorizations granted for each class of place;
• a general description of the methods of interception used;
• the number of proceedings in which intercepted communications were entered as evidence and the number of those proceedings that resulted in a conviction; and
• the number of investigations in which information from intercepted communications was used but the communication itself was not entered as evidence.

On September 27, 2013, new accountability measures were implemented for section 184.4 of the Criminal Code (Immediate interception – imminent harm) which resulted in changes to section 195 (Annual Report). Some of the required information is the same as for section 185 and section 186; however, there are also new requirements specifically for section 184.4.

The Annual Report must now also include information specifically for section 184.4 such as:

• the number of interceptions made;
• the number of parties to each intercepted private communication who were charged for various offences;
• the number of persons who were not parties to an intercepted private communication, but who were arrested or charged for various offences because they became known to police officers^{Note 2} as a result of an intercepted communication;
• the duration of each interception and the aggregate duration of all the interceptions related to the investigation; and
• the types of offences for which interceptions were made.

The 2018 Annual Report is organized in the following manner:

• Section I provides an overview of the procedures and processes set out in Part VI of the Criminal Code and information on section 487.01 as the law enforcement community can obtain the authority to conduct video surveillance by applying for a general warrant pursuant to this section.
• Section II presents the statistical information related to authorizations and renewal applications that must be included in each annual report pursuant to subsections 195(2) and 195(3) of the Criminal Code.
• Section III presents the statistical information related to immediate interceptions without judicial authorization when there is imminent harm that must be included in each annual report pursuant to subsection 195 (1)(c) of the Criminal Code.
• Section IV provides a general assessment of the importance of electronic surveillance for the investigation, detection, prevention, and prosecution of offences as required by paragraph 195(3)(b) of the Criminal Code.

Section I - Overview of Part VI of the Criminal Code

Part VI of the Criminal Code sets out the provisions for the law enforcement community to obtain judicial authorization to conduct electronic surveillance for criminal investigations.

Only designated peace officers and agents can obtain this authorization to intercept private communications, and only for certain serious offences, which are listed in section 183 of the Criminal Code (e.g., 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:

• With regard to offences that may be prosecuted by or on behalf of the Attorney General of Canada, only the Minister of Public Safety and Emergency Preparedness, or persons specially designated by the Minister or the Deputy Minister of Public Safety and Emergency Preparedness, may make an application for an authorization (section 185).
• An application for authorization must be accompanied by an affidavit sworn by a peace officer or public officer. The affidavit must include information such as the facts relied on to justify the need for an authorization, details about the offence, and the names and addresses of the persons whose private communications would be intercepted (section 185).
• Before an authorization is issued, the judge hearing the application must be satisfied that it would be in the best interests of the administration of justice to authorize the electronic surveillance. Except in the case of certain specific offences, such as a terrorism offence, the judge must also be satisfied that other investigative procedures have been tried and have failed, that other investigative procedures are unlikely to succeed, or that there is an urgency such that other investigative procedures are impractical. The judge may impose terms and conditions on the authorization, including conditions to ensure that the privacy of individuals is respected as much as possible during the surveillance (section 186).

Generally, authorizations are not issued for a period longer than 60 days (paragraph 186(4)(e)). Designated persons may apply to a judge to have the authorization renewed, which extends the 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:

• The judge must be satisfied by information provided under oath and in writing (e.g., a sworn affidavit) that there are reasonable grounds to believe that an offence has been or will be committed and that information about the offence will be obtained by conducting video surveillance.
• The judge must be satisfied that it is in the best interests of the administration of justice to issue the warrant.
• There must be no other provision in the Criminal Code or any other Act of Parliament that would provide for a warrant, authorization or order to allow the intended video surveillance to be carried out.
• The judge may also impose terms or conditions on the warrant, including conditions to ensure that the privacy of individuals is respected as much as possible during the surveillance.

In 1993, Parliament enacted section 184.4 (Immediate interception – imminent harm) of the Criminal Code to allow the use of wiretapping without a court authorization when there is imminent harm, such as in the case of kidnappings or bomb threats. In R. v. Tse, the Supreme Court of Canada found that a wiretap authority without a court authorization in situations of imminent harm could be justified under the Canadian Charter of Rights and Freedoms. However, the Supreme Court declared that section 184.4 was unconstitutional because it contained no accountability measures. The Supreme Court gave Parliament until April 13, 2013, to amend the provision to make it constitutionally compliant. On March 27, 2013, legislation responding to R v. Tse received Royal Assent, adding accountability safeguards to the existing provision for wiretaps in situations of imminent harm under the Criminal Code.

Section II - Statistics

Applications for authorizations and renewals

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

• the number of applications made for authorizations; and
• the number of applications made for renewal of authorizations.

The table below presents the number of applications made for audio and video authorizations and renewals each year for the five‑year period from 2014 to 2018. The data is categorized by the five 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, as well as 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:

• 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.

Period for which authorizations and renewals were granted

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

• the average period for which authorizations were given and for which renewals thereof were granted.

The calculations below represent the "average period of time valid" for 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 and emergency audio and video authorizations up to 36 hours, 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. It is also important to note that some authorizations investigating organized crime may be valid for up to one year, which increases the authorizations' overall average period of validity.

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

• 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.

The categories in the table below representing renewals 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:

• the offences in respect of which authorizations were given, specifying the number of authorizations given in respect of each of those offences.

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. The table below represents the number of times specific offences were identified in authorizations granted to agents by the Minister of Public Safety and Emergency Preparedness. For example, of the 48 applications for authorizations granted in 2018, 23 of these authorizations specifically provided for the use of electronic surveillance in connection with trafficking a narcotic, 18 for possession for the purpose of trafficking and 19 for importing and exporting.

Classes of places and methods of interception

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

• 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.

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

• a general description of the methods of interception involved in each interception under an authorization.

Legal proceedings, use of intercepted material and disposition

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

• the number of persons arrested whose identity became known to a peace officer as a result of an interception under an authorization.

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

• the number of persons identified in an authorization against whom proceedings were commenced at the instance of the Attorney General of Canada in respect of:

(i) an offence specified in the authorization;

(ii) an offence other than an offence specified in the authorization but in respect of which an authorization may be given; and

• an offence in respect of which an authorization may not be given.

The table below contains 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 this table to obtain the total number of persons against whom proceedings were commenced.

Tables 9 and 10 are interrelated. Table 9 provides information on the number of persons identified in an authorization who were charged with specific categories of offences, e.g., 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. The subsequent table in this report 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)(e) of the Criminal Code requires information relating to:

• 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:
• an offence specified in such an authorization;

(ii) an offence other than an offence specified in such an authorization but in respect of which an authorization may be given;

(iii) an offence other than an offence specified in such an authorization and for which no such authorization may be given; and

whose commission or alleged commission of the offence became known to a peace officer as a result of an interception of a private communication under an authorization.

The table below contains 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 this table to obtain the total number of persons against whom proceedings were commenced.

Again, Tables 9 and 10 are interrelated. The former table provides information on the number of persons identified in an authorization who were charged with specific categories of offences, e.g., 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. The latter table provides similar information on persons not identified in an authorization, but who were charged as a result of information obtained from the authorized interception.

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

• 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.

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

• 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.

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:

• the number of notifications given pursuant to section 196.

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. 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:

• 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 2014 to 2018.

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 a private communication that was lawfully intercepted, or to disclose the existence of such intercepted communications.

Section III – Statistics for Section 184.4 (Immediate Interception – Imminent Harm)

Paragraph 195(1)(c) of the Criminal Code requires that the Annual Report provide information relating to interceptions without judicial authorization under section 184.4 (Immediate interception – imminent harm).

On September 27, 2013, new accountability measures were implemented for section 184.4 which resulted in changes to section 195 (Annual Report). The list of reporting requirements for section 184.4 can be found in the beginning of the Report under Introduction.

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

• the number of interceptions made.

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

• the offences in respect of which interceptions were made and any other offences for which proceedings were commenced as a result of an interception, as well as the number of interceptions made with respect to each offence.

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

• a general description of the methods of interception used for each interception.

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

• the duration of each interception and the aggregate duration of all the interceptions related to the investigation of the offence that the police officer sought to prevent in intercepting the private communication.

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

• the number of persons arrested whose identity became known to a police officer as a result of an interception.

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

• the number of parties to each intercepted private communication against whom proceedings were commenced in respect of the offence that the police officer sought to prevent in intercepting the private communication or in respect of any other offence that was detected as a result of the interception; and
• the number of persons who were not parties to an intercepted private communication but whose commission or alleged commission of an offence became known to a police officer as a result of the interception of a private communication, and against whom proceedings were commenced in respect of the offence that the police officer sought to prevent in intercepting the private communication or in respect of any other offence that was detected as a result of the interception.

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

• the number of criminal proceedings commenced in which private communications obtained by interception were adduced in evidence and the number of those proceedings that resulted in a conviction.

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

• the number of criminal investigations in which information obtained as a result of the interception of a private communication was used even though the private communication was not adduced in evidence in criminal proceedings commenced as a result of the investigations.

• the number of notifications given under section 196.1.

Section IV - General assessment

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

• 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 crucial 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.

Date modified:

2022-07-29