PART VIInvasion of Privacy (continued)
Interception of Communications (continued)
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(3) [Repealed, 1993, c. 40, s. 8]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.
- R.S., 1985, c. C-46, s. 188
- R.S., 1985, c. 27 (1st Supp.), ss. 25, 185(F), c. 27 (2nd Supp.), s. 10
- 1990, c. 17, s. 10
- 1992, c. 1, s. 58, c. 51, s. 35
- 1993, c. 40, s. 8
- 1999, c. 3, s. 28
- 2002, c. 7, s. 140
- 2005, c. 10, s. 34
- 2014, c. 31, s. 11
- 2015, c. 3, s. 47
- 2017, c. 33, s. 255
Marginal note:Execution of authorizations
Marginal note:Execution in another province
(2) Where an authorization is given under section 184.2, 184.3, 186 or 188 in one province but it may reasonably be expected that it is to be executed in another province and the execution of the authorization would require entry into or upon the property of any person in the other province or would require that an order under section 487.02 be made with respect to any person in that other province, a judge in the other province may, on application, confirm the authorization and when the authorization is so confirmed, it shall have full force and effect in that other province as though it had originally been given in that other province.
- 1993, c. 40, s. 9
Marginal note:No civil or criminal liability
188.2 No person who acts in accordance with an authorization or under section 184.1 or 184.4 or who aids, in good faith, a person who he or she believes on reasonable grounds is acting in accordance with an authorization or under one of those sections incurs any criminal or civil liability for anything reasonably done further to the authorization or to that section.
- 1993, c. 40, s. 9
Marginal note:Notice of intention to produce evidence
(5) The contents of a private communication that is obtained from an interception of the private communication pursuant to any provision of, or pursuant to an authorization given under, this Part shall not be received in evidence unless the party intending to adduce it has given to the accused reasonable notice of the intention together with
(a) a transcript of the private communication, where it will be adduced in the form of a recording, or a statement setting out full particulars of the private communication, where evidence of the private communication will be given viva voce; and
(b) a statement respecting the time, place and date of the private communication and the parties thereto, if known.
Marginal note:Privileged evidence
(6) Any information obtained by an interception that, but for the interception, would have been privileged remains privileged and inadmissible as evidence without the consent of the person enjoying the privilege.
- R.S., 1985, c. C-46, s. 189
- 1993, c. 40, s. 10
Marginal note:Further particulars
190 Where an accused has been given notice pursuant to subsection 189(5), any judge of the court in which the trial of the accused is being or is to be held may at any time order that further particulars be given of the private communication that is intended to be adduced in evidence.
- 1973-74, c. 50, s. 2
Marginal note:Possession, etc.
191 (1) Every one who possesses, sells or purchases any electro-magnetic, acoustic, mechanical or other device or any component thereof knowing that the design thereof renders it primarily useful for surreptitious interception of private communications is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
(2) Subsection (1) does not apply to
(a) a police officer in possession of a device or component described in subsection (1) in the course of his employment;
(b) a person in possession of such a device or component for the purpose of using it in an interception made or to be made in accordance with an authorization;
(b.1) a person in possession of such a device or component under the direction of a police officer in order to assist that officer in the course of his duties as a police officer;
(c) an officer or a servant of Her Majesty in right of Canada or a member of the Canadian Forces in possession of such a device or component in the course of his duties as such an officer, servant or member, as the case may be; and
(d) any other person in possession of such a device or component under the authority of a licence issued by the Minister of Public Safety and Emergency Preparedness.
Marginal note:Terms and conditions of licence
(3) A licence issued for the purpose of paragraph (2)(d) may contain such terms and conditions relating to the possession, sale or purchase of a device or component described in subsection (1) as the Minister of Public Safety and Emergency Preparedness may prescribe.
- R.S., 1985, c. C-46, s. 191
- R.S., 1985, c. 27 (1st Supp.), s. 26
- 2005, c. 10, s. 34
- 2013, c. 8, s. 4
192 (1) Where a person is convicted of an offence under section 184 or 191, any electro-magnetic, acoustic, mechanical or other device by means of which the offence was committed or the possession of which constituted the offence, on the conviction, in addition to any punishment that is imposed, may be ordered forfeited to Her Majesty whereupon it may be disposed of as the Attorney General directs.
(2) No order for forfeiture shall be made under subsection (1) in respect of telephone, telegraph or other communication facilities or equipment owned by a person engaged in providing telephone, telegraph or other communication service to the public or forming part of the telephone, telegraph or other communication service or system of that person by means of which an offence under section 184 has been committed if that person was not a party to the offence.
- 1973-74, c. 50, s. 2
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