Introduction to Wiretap Law

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1 Listening, Snooping and Searching: What s Right, What s Wrong Friday, November 30, 2007 Introduction to Wiretap Law James C. Martin Public Prosecution Service, Canada

2 Overview of Canadian Electronic Surveillance Law Part VI of the Criminal Code protects privacy by making it an offence to unlawfully wiretap (s.184 contains both the offence and exceptions to the offence) Interception is lawful only if: a judicial authorization, participant consent or a service interception Need judicial authorization for third party intercepts (s ), consent intercepts (s ), and video intercepts (s (5)) In Canada, unlike USA, need an authorization for participant intercepts

3 Overview of Canadian Electronic Surveillance Law R. v. Pires; R. v. Lising, 2005 SCC 66 at paragraph 8 set out the following axioms relating to the admissibility of wiretap evidence : (1) Wiretaps constitute a search or seizure within the meaning of s. 8 of the Charter (R. v. Duarte, [1990] 1 S.C.R. 30). Therefore, the statutory provisions authorizing them must conform to the minimum constitutional requirements demanded by s. 8. (2) Without substantive compliance with the statutory regime, the wiretap is illegal and, given the consonance between the statutory provisions and the constitutional requirements, also unconstitutional. (3) When an accused later asserts that the wiretap infringed his s. 8 Charter right, the reviewing judge must determine whether the interception constitutes an unreasonable search or seizure. This involves an inquiry into whether the statutory preconditions have been met. 4) where the wiretap contravened s. 8 of the Charter, the reviewing judge proceeds to s. 24(2) of the Charter.

4 Three Key Themes of Wiretapping Authorizations should reflect the paramount concern for privacy exemplified by Part VI of the Code - therefore, important to minimize intrusions into privacy by crafting the orders accordingly Ensure that the minimum statutory and constitutional requirements of both the affidavit materials leading to the authorization and the authorization are satisfied Garofoli theme of full, frank and fair disclosure in the affidavit materials but Araujo principle that affidavit should be succinct and not become a mechanic s manual or Kama Sutra

5 Special Features of Obtaining a Third Party Wiretap Section 186: Requirements for Authorization minimum requirements: 1. reasonable grounds (s.186(1)(a)) 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; Finlay & Grellette: best interests of the administration of justice in s.186(1)(a) means reasonable grounds to believe that the specified crime has been or is being committed and that interception will afford evidence of that crime

6 Special Features of Obtaining a Third Party Wiretap 2. investigative necessity (s.186(1)(b)) (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. conditions: all of the circumstances surrounding the use of alternative methods should be looked at as a whole in determining whether investigative necessity is met test: no other reasonable alternative method of investigation in the circumstances Araujo

7 investigative necessity (s.186(1)(b)) cont. exceptions: criminal organizations (s.186(1.1)(a)(b)) terrorism offences (s.186(1.1)(c)) constitutionality of exceptions upheld at trial level in: R. v. Pangman, [2000] M.J. No. 300 (Q.B.) R. v. Doucet, [2003] Q.J. No (S.C.) And at the appeal level in: R. v. Doiron, 2007 NBCA 41. Although declining to comment on s.186(1.1), in Araujo the SCC stated: the investigative necessity requirement embodied in s. 186(1) is one of the safeguards that made it possible for this Court to uphold these parts of the Criminal Code on constitutional grounds (Duarte, supra, at p. 45; Garofoli, supra, at p. 1444).

8 investigative necessity (s.186(1)(b)) cont. exceptions: criminal organizations (s.186(1.1)(a)(b)) terrorism offences (s.186(1.1)(c)) Attacks have been launched on the constitutionality of the criminal organization provisions themselves. In R. v. Lindsay and Bonner, [2004] O.J. No. 845 (Ont. S.C.), the trial judge found that sections and were neither vague nor overbroad. However, in R. v. Terezakis and Goosen, [2005] B.C.S.C (B.C.S.C.), the trial judge found s of no force and effect on the basis of vagueness.

9 Issues to Address in Wiretap Materials Extension of interceptions: Renewal s. 186(6) all terms, apart from duration, must remain the same Expansion order new authorization based on prior evidence and interceptions and any new information

10 Other Third Party Wiretap Issues The practicalities of getting the affidavit signed Araujo - oral discussions between the judge and the affiant that augment the application materials Secrecy issues sealing the affidavit s.187(1) in-house management of the packet editing & disclosure sealing orders for non-part VI authorizations s application disclosure issues re drafts & computer disks

11 Omnibus Affidavits and Other Types of Orders/Authorizations Duarte Authorizations (s ) Officer Safety Kits (s ) Common to apply for authorization to do a variety of tasks in one order The omnibus authorization requires an omnibus application and omnibus affidavit Video Warrants (s ) Tracking Devices (s ) DNR warrants (s ) Assistance orders (s ) Telephone records production orders (s (2)) General production orders (s ) Specific production orders (s ) Sealing order for non Part VI matters (s )

12 Obtaining a Consent Wiretap under Part VI (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).

13 Special Features of a Consent Based Application Can be obtained directly by the police like a regular warrant Can obtain from a Provincial court judge Can be obtained for any Code offence No need to make out investigative necessity Consent based video surveillance can be obtained on the same terms as a consent based audio wiretap S (1)

Third Party Video Wiretap Orders Video warrants are not contained in Part VI of the Code However, s.487.

14 Third Party Video Wiretap Orders Video warrants are not contained in Part VI of the Code However, s (5) of the Code makes the Part VI requirements applicable to video surveillance warrants applications for video surveillance are made under Part XV pursuant to s Third party video surveillance warrants, therefore, are subject to the same requirements as third party audio wiretap authorizations

15 Notification of Targets & Delay of Notification (s. 196) Targets of wiretap and video authorizations must be notified under Part VI within 90 days after the authorization has expired (s.196) Extensions of the 90 day period can be granted for up to 3 years Because frequently authorizations are given in a sequence, it is common to apply for extensions of the 90 day period don t want to tip of target that his calls have been intercepted Criteria: investigation is continuing interests of justice warrant granting application criminal organizations and terrorism offences only criterion is interests of justice (s. 196(5))

16 The Principal Attacks on Authorizations The main attacks launched in respect of authorizations involve allegations that: The authorization is defective on its face The supporting materials do not support the issuance of the order There are false, misleading or non-disclosed materials in the application materials that render the authorization invalid The execution of the order was improper

17 The Test for Review: The Garofoli Hearing The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. The test on review, therefore, is whether there was any basis before the issuing justice for the issuance of the authorization. Errors in the information presented to the authorizing judge, whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the authorization and do not by themselves lead to automatic vitiation of the wire-tap authorization: Bisson and Araujo.

18 Cross-examination in the Garofoli Hearing A trial judge has a discretion to grant leave to cross-examine if a basis is shown by the applicant for the view that cross-examination will elicit testimony tending to discredit the existence of one of the preconditions for granting the authorization: R. v. Garofoli. In R. v. Pires; R. v. Lising, 2005 SCC 66, the Supreme Court of Canada stated: 31 There is no point in permitting cross-examination if there is no reasonable likelihood that it will impact on the question of the admissibility of the evidence. The Garofoli threshold test is nothing more than a means of ensuring that, when a s. 8 challenge is initiated, the proceedings remain focussed and on track. Even on the trial proper, the right to cross-examine is not unlimited. The Garofoli threshold test is all about relevancy. If the proposed cross-examination is not relevant to a material issue, within the narrow scope of the review on admissibility, there is no reason to permit it.

19 The Garofoli Hearing The burden of proof on a Garofoli review the applicant must prove on a balance of probabilities that the authorization is invalid and constitutes a breach of s.8 of the Charter Editing: Substantial editing of the affidavit may leave no grounds left to sustain the validity of the information In order to protect informants, the Crown may edit out portions of an affidavit the defense may allege that without the information, they are prejudiced in making out full answer and defence If the defense can compel a ruling ordering disclosure of privileged material, the Crown may have to proceed on the basis of a warrantless search or enter a stay of proceedings

20 In Court Wiretap Issues The manner of the execution of the Authorization Parsons issues Notice of intention to produce wiretap evidence: s.189(5) Transcript issues the tape the composite tape foreign language problems Tam Voice identification

21 Discussion of Admissibility Problems Old test an automatic exclusionary rule replaced with s.24(2) test s. 8 and s. 24(2) of the Charter the Stillman test s. 8 of the Charter is applicable to all evidence obtained under Part VI and governs all search related evidence s. 8 states that everyone has the right to be secure against unreasonable search and seizure

22 Discussion of Admissibility Problems Trial fairness issues generally not engaged under s.24(2) of Charter Wiretap evidence is not conscriptive: see Wijesinha, Stillman and - Pope In Pope, the court stated: [13] In our view, Wijesinha, Stillman, Lauda, Willis and Dixon demonstrate that, for the purpose of assessing the "trial fairness" aspect of the Section 24(2) analysis, the element of compulsion requires more than passive observation or eavesdropping on the part of the state. The surreptitious monitoring and recording of an accused's words has nothing to do with their utterance by the accused. In the instant case, the statements were not made as the result of any form of state coercion or inducement. They were made voluntarily and independently of their interception.

23 Seven Key Wiretap Cases R. v. Garofoli (1990), 60 C.C.C. (3d) 161 (S.C.C.) R. v. Duarte (1990), 53 C.C.C. (3d) 1 (S.C.C.) R. v. Thompson (1990), 59 C.C.C. (3d) 225 (S.C.C.) R. v. Bisson (1994), 94 C.C.C. (3d) 94 (S.C.C.) R. v. Durette (1994), 88 C.C.C. (3d) 1 (S.C.C.) R. v. Araujo (2000), 149 C.C.C. (3d) 449 (S.C.C.) R. v. Pires; R. v. Lising, 2005 SCC 66

24 Questions? James C. Martin Public Prosecution Service, Canada

DEPARTMENT OF JUSTICE CANADA MINISTÈRE DE LA JUSTICE CANADA

DEPARTMENT OF JUSTICE CANADA MINISTÈRE DE LA JUSTICE CANADA Lawful Access: Legal Review Follow-up Consultations: Criminal Code Draft Proposals February-March 2005 For discussion purposes Not for further