Government of Canada / Gouvernement du Canada
Symbol of the Government of Canada

Search

Criminal Code (R.S.C., 1985, c. C-46)

Full Document:  

Act current to 2022-06-01 and last amended on 2022-01-16. Previous Versions

PART VIInvasion of Privacy (continued)

Definitions (continued)

Marginal note:Consent to interception

 Where a private communication is originated by more than one person or is intended by the originator thereof to be received by more than one person, a consent to the interception thereof by any one of those persons is sufficient consent for the purposes of any provision of this Part.

  • 1993, c. 40, s. 2

Interception of Communications

Marginal note:Interception

  •  (1) Every person who, by means of any electro-magnetic, acoustic, mechanical or other device, knowingly intercepts a private communication is guilty of

    • (a) an indictable offence and liable to imprisonment for a term of not more than five years; or

    • (b) an offence punishable on summary conviction.

  • Marginal note:Saving provision

    (2) Subsection (1) does not apply to

    • (a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it;

    • (b) a person who intercepts a private communication in accordance with an authorization or pursuant to section 184.4 or any person who in good faith aids in any way another person who the aiding person believes on reasonable grounds is acting with an authorization or pursuant to section 184.4;

    • (c) a person engaged in providing a telephone, telegraph or other communication service to the public who intercepts a private communication,

      • (i) if the interception is necessary for the purpose of providing the service,

      • (ii) in the course of service observing or random monitoring necessary for the purpose of mechanical or service quality control checks, or

      • (iii) if the interception is necessary to protect the person’s rights or property directly related to providing the service;

    • (d) an officer or servant of Her Majesty in right of Canada who engages in radio frequency spectrum management, in respect of a private communication intercepted by that officer or servant for the purpose of identifying, isolating or preventing an unauthorized or interfering use of a frequency or of a transmission; or

    • (e) a person, or any person acting on their behalf, in possession or control of a computer system, as defined in subsection 342.1(2), who intercepts a private communication originating from, directed to or transmitting through that computer system, if the interception is reasonably necessary for

      • (i) managing the quality of service of the computer system as it relates to performance factors such as the responsiveness and capacity of the system as well as the integrity and availability of the system and data, or

      • (ii) protecting the computer system against any act that would be an offence under subsection 342.1(1) or 430(1.1).

  • Marginal note:Use or retention

    (3) A private communication intercepted by a person referred to in paragraph (2)(e) can be used or retained only if

    • (a) it is essential to identify, isolate or prevent harm to the computer system; or

    • (b) it is to be disclosed in circumstances referred to in subsection 193(2).

Marginal note:Interception to prevent bodily harm

  •  (1) An agent of the state may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication if

    • (a) either the originator of the private communication or the person intended by the originator to receive it has consented to the interception;

    • (b) the agent of the state believes on reasonable grounds that there is a risk of bodily harm to the person who consented to the interception; and

    • (c) the purpose of the interception is to prevent the bodily harm.

  • Marginal note:Admissibility of intercepted communication

    (2) The contents of a private communication that is obtained from an interception pursuant to subsection (1) are inadmissible as evidence except for the purposes of proceedings in which actual, attempted or threatened bodily harm is alleged, including proceedings in respect of an application for an authorization under this Part or in respect of a search warrant or a warrant for the arrest of any person.

  • Marginal note:Destruction of recordings and transcripts

    (3) The agent of the state who intercepts a private communication pursuant to subsection (1) shall, as soon as is practicable in the circumstances, destroy any recording of the private communication that is obtained from an interception pursuant to subsection (1), any full or partial transcript of the recording and any notes made by that agent of the private communication if nothing in the private communication suggests that bodily harm, attempted bodily harm or threatened bodily harm has occurred or is likely to occur.

  • Definition of agent of the state

    (4) For the purposes of this section, agent of the state means

    • (a) a peace officer; and

    • (b) a person acting under the authority of, or in cooperation with, a peace officer.

  • 1993, c. 40, s. 4

Marginal note:Interception with consent

  •  (1) A person may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication where either the originator of the private communication or the person intended by the originator to receive it has consented to the interception and an authorization has been obtained pursuant to subsection (3).

  • Marginal note:Application for authorization

    (2) An application for an authorization under this section shall be made by a peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, ex parte and in writing to a provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552, and shall be accompanied by an affidavit, which may be sworn on the information and belief of that peace officer or public officer or of any other peace officer or public officer, deposing to the following matters:

    • (a) that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed;

    • (b) the particulars of the offence;

    • (c) the name of the person who has consented to the interception;

    • (d) the period for which the authorization is requested; and

    • (e) in the case of an application for an authorization where an authorization has previously been granted under this section or section 186, the particulars of the authorization.

  • Marginal note:Judge to be satisfied

    (3) An authorization may be given under this section if the judge to whom the application is made 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; and

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

  • Marginal note:Content and limitation of authorization

    (4) An authorization given under this section 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 the terms and conditions that the judge considers advisable in the public interest; and

    • (e) be valid for the period, not exceeding sixty days, set out therein.

  • Marginal note:Related warrant or order

    (5) 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.

  • 1993, c. 40, s. 4
  • 2014, c. 31, s. 8

Marginal note:Application by means of telecommunication

  •  (1) Notwithstanding section 184.2, an application for an authorization under subsection 184.2(2) may be made ex parte to a provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552, by telephone or other means of telecommunication, if it would be impracticable in the circumstances for the applicant to appear personally before a judge.

  • Marginal note:Application

    (2) An application for an authorization made under this section shall be on oath and shall be accompanied by a statement that includes the matters referred to in paragraphs 184.2(2)(a) to (e) and that states the circumstances that make it impracticable for the applicant to appear personally before a judge.

  • Marginal note:Recording

    (3) The judge shall record, in writing or otherwise, the application for an authorization made under this section and, on determination of the application, shall cause the writing or recording to be placed in the packet referred to in subsection 187(1) and sealed in that packet, and a recording sealed in a packet shall be treated as if it were a document for the purposes of section 187.

  • Marginal note:Oath

    (4) For the purposes of subsection (2), an oath may be administered by telephone or other means of telecommunication.

  • Marginal note:Alternative to oath

    (5) An applicant who uses a means of telecommunication that produces a writing may, instead of swearing an oath for the purposes of subsection (2), make a statement in writing stating that all matters contained in the application are true to the knowledge or belief of the applicant and such a statement shall be deemed to be a statement made under oath.

  • Marginal note:Authorization

    (6) Where the judge to whom an application is made under this section is satisfied that the circumstances referred to in paragraphs 184.2(3)(a) to (c) exist and that the circumstances referred to in subsection (2) make it impracticable for the applicant to appear personally before a judge, the judge may, on such terms and conditions, if any, as are considered advisable, give an authorization by telephone or other means of telecommunication for a period of up to thirty-six hours.

  • Marginal note:Giving authorization

    (7) Where a judge gives an authorization by telephone or other means of telecommunication, other than a means of telecommunication that produces a writing,

    • (a) the judge shall complete and sign the authorization in writing, noting on its face the time, date and place at which it is given;

    • (b) the applicant shall, on the direction of the judge, complete a facsimile of the authorization in writing, noting on its face the name of the judge who gave it and the time, date and place at which it was given; and

    • (c) the judge shall, as soon as is practicable after the authorization has been given, cause the authorization to be placed in the packet referred to in subsection 187(1) and sealed in that packet.

  • Marginal note:Giving authorization where telecommunication produces writing

    (8) Where a judge gives an authorization by a means of telecommunication that produces a writing, the judge shall

    • (a) complete and sign the authorization in writing, noting on its face the time, date and place at which it is given;

    • (b) transmit the authorization by the means of telecommunication to the applicant, and the copy received by the applicant shall be deemed to be a facsimile referred to in paragraph (7)(b); and

    • (c) as soon as is practicable after the authorization has been given, cause the authorization to be placed in the packet referred to in subsection 187(1) and sealed in that packet.

  • 1993, c. 40, s. 4

Marginal note:Immediate interception — imminent harm

 A police officer may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication if the police officer has reasonable grounds to believe that

  • (a) the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained under any other provision of this Part;

  • (b) the interception is immediately necessary to prevent an offence that would cause serious harm to any person or to property; and

  • (c) either the originator of the private communication or the person intended by the originator to receive it is the person who would commit the offence that is likely to cause the harm or is the victim, or intended victim, of the harm.

  • 1993, c. 40, s. 4
  • 2013, c. 8, s. 3

Marginal note:Interception of radio-based telephone communications

  •  (1) Every person who intercepts, by means of any electro-magnetic, acoustic, mechanical or other device, maliciously or for gain, a radio-based telephone communication, if the originator of the communication or the person intended by the originator of the communication to receive it is in Canada, is guilty of

    • (a) an indictable offence and liable to imprisonment for a term of not more than five years; or

    • (b) an offence punishable on summary conviction.

  • Marginal note:Other provisions to apply

    (2) Section 183.1, subsection 184(2) and sections 184.1 to 190 and 194 to 196 apply, with such modifications as the circumstances require, to interceptions of radio-based telephone communications referred to in subsection (1).

Marginal note:One application for authorization sufficient

 For greater certainty, an application for an authorization under this Part may be made with respect to both private communications and radio-based telephone communications at the same time.

  • 1993, c. 40, s. 4

Marginal note:Application for authorization

  •  (1) An application for an authorization to be given under section 186 shall be made ex parte and in writing to a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 and shall be 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 this section by

    • (a) the Minister personally or the Deputy Minister of Public Safety and Emergency Preparedness personally, if the offence under investigation is one in respect of which proceedings, if any, may be instituted at the instance of the Government of Canada and conducted by or on behalf of the Attorney General of Canada, or

    • (b) the Attorney General of a province personally or the Deputy Attorney General of a province personally, in any other case,

    and shall be accompanied by an affidavit, which may be sworn on the information and belief of a peace officer or public officer deposing to the following matters:

    • (c) the facts relied on to justify the belief that an authorization should be given together with particulars of the offence,

    • (d) the type of private communication proposed to be intercepted,

    • (e) the names, addresses and occupations, if known, of all persons, the interception of whose private communications there are reasonable grounds to believe may assist the investigation of the offence, a general description of the nature and location of the place, if known, at which private communications are proposed to be intercepted and a general description of the manner of interception proposed to be used,

    • (f) the number of instances, if any, on which an application has been made under this section in relation to the offence and a person named in the affidavit pursuant to paragraph (e) and on which the application was withdrawn or no authorization was given, the date on which each application was made and the name of the judge to whom each application was made,

    • (g) the period for which the authorization is requested, and

    • (h) whether other investigative procedures have been tried and have failed or why it appears they are unlikely to succeed or that 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 terrorist groups

    (1.1) Notwithstanding paragraph (1)(h), that paragraph does not apply where the application for an authorization is in relation to

    • (a) an offence under section 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; or

    • (c) a terrorism offence.

  • Marginal note:Extension of period for notification

    (2) An application for an authorization may be accompanied by an application, personally signed by the Attorney General of the province in which the application for the authorization is made or the Minister of Public Safety and Emergency Preparedness if the application for the authorization is made by him or on his behalf, to substitute for the period mentioned in subsection 196(1) such longer period not exceeding three years as is set out in the application.

  • Marginal note:Where extension to be granted

    (3) Where an application for an authorization is accompanied by an application referred to in subsection (2), the judge to whom the applications are made shall first consider the application referred to in subsection (2) and where, on the basis of the affidavit in support of the application for the authorization and any other affidavit evidence submitted in support of the application referred to in subsection (2), the judge is of the opinion that the interests of justice warrant the granting of the application, he shall fix a period, not exceeding three years, in substitution for the period mentioned in subsection 196(1).

  • Marginal note:Where extension not granted

    (4) Where the judge to whom an application for an authorization and an application referred to in subsection (2) are made refuses to fix a period in substitution for the period mentioned in subsection 196(1) or where the judge fixes a period in substitution therefor that is less than the period set out in the application referred to in subsection (2), the person appearing before the judge on the application for the authorization may withdraw the application for the authorization and thereupon the judge shall not proceed to consider the application for the authorization or to give the authorization and shall return to the person appearing before him on the application for the authorization both applications and all other material pertaining thereto.

  • R.S., 1985, c. C-46, s. 185
  • 1993, c. 40, s. 5
  • 1997, c. 18, s. 8, c. 23, s. 4
  • 2001, c. 32, s. 5, c. 41, ss. 6, 133
  • 2005, c. 10, ss. 22, 34
  • 2014, c. 17, s. 3
 
Date modified: