Criminal Code (R.S.C., 1985, c. C-46)

Marginal note: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.

• Marginal note: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 52, 52.1, 52.2, 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;

  • (b.1) an offence under subsection 20(1), 20.1(1), 20.2(1), 20.3(1) or 20.4(1) of the Foreign Interference and Security of Information Act; or

  • (c) a terrorism offence.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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;

  • (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 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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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 52, 52.1, 52.2, 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;

• (b.1) an offence under subsection 20(1), 20.1(1), 20.2(1), 20.3(1) or 20.4(1) of the Foreign Interference and Security of Information Act; or

• (c) a terrorism offence.

Marginal note: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).

• Marginal note:Exception

  (1.1) An authorization given under this Part need not be placed in the packet except if, under subsection 184.3(8), the original authorization is in the hands of the judge, in which case that judge must place it in the packet and the copy remains with the applicant.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Order of judge

  (3) An order under subsection (1.2), (1.3), (1.4) or (1.5) made with respect to documents relating to an application made under subsection 184.2(2) may only be made after the Attorney General has been given an opportunity to be heard.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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]

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.