Annual report on the use of electronic surveillance - 2010

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Section I - Introduction

Part VI of the Criminal Code (C.C.) sets out procedures for the law enforcement community to obtain judicial authorization to conduct electronic surveillance of private communications to assist in criminal investigations. 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. In particular, the annual report must include the following information:

The 2010 Annual Report covers a five-year period from 2006 to 2010. The Report includes new statistics for the period from January 1, 2010 to December 31, 2010, and updates the figures for the years 2006 to 2009.

The 2010 Annual Report is organized in the following manner:

Section II - Overview of Part VI of the Criminal Code

As indicated in Section I, Part VI of the Criminal Code sets out procedures for the law enforcement community to obtain judicial authorization to conduct electronic surveillance to assist in criminal investigations.

Designated peace officers and agents can only obtain this authorization to intercept private communications for certain offences, which are listed in section 183 of the Criminal Code. These offences include serious offences such as 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:

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

Section III - Statistics

Applications for authorizations and renewals

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

(a) the number of applications made for authorizations;

(b) the number of applications made for renewal of authorizations;

Applications for authorizations and renewals
Type of application made Number of applications
2006 2007 2008 2009 2010
Audio s.185 C.C.

81

70

80

92

60

Video s.487.01 C.C.

16

37

11

29

30

Renewals s.186 C.C.

5

5

16

10

6

Emergency audio s.188 C.C.

0

1

2

1

0

Emergency video s.487.01 C.C.

0

0

0

0

0

Total

102

113

110

132

96

Table 1 presents the number of applications made for audio and video authorizations and renewals each year for the five‑year period from 2006 to 2010. The data is categorized by the three 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, and emergency applications (maximum duration 36 hours) pursuant to subsection 188(1) and section 487.01 of the Criminal Code.

*It should be noted that the numbers reported in this section will likely increase in future years to reflect updated statistics from Canadian police forces.

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

*It should be noted that the numbers reported in this section will likely increase in future years to reflect updated statistics from Canadian police forces.

Applications made for audio and video authorizations and renewals
2006 2007 2008 2009 2010
With Terms and Conditions 101 109 105 131 95
Without Terms and Conditions 1 3 1 1 1

Period for which authorizations and renewals were granted

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

(f) the average period for which authorizations were given and for which renewals thereof were granted;

Period for which authorizations and renewals were granted
Type of authorization Average period of time valid
2006 2007 2008 2009 2010
Audio s.185 C.C. (days)

62.7

63.0

57.0

56.6

69.8

Video s.487.01 C.C. (days)

57.4

62.6

50.9

53.1

78.6

Emergency audio s.188 C.C. (hours)

0

24.0

36.0

36.0

0

Emergency video s.487.01 C.C. (hours)

0

0

0

0

0

Calculations for the “average period of time valid” include authorizations and renewals where applicable. Further, it is important to note that although authorizations original ly granted or renewed may be valid for a period of up to sixty days; 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.

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

(g) 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;

Authorizations Renewals
Renewal period (days) Number of authorizations renewed
2006 2007 2008 2009 2010
61-120

5

4

11

7

6

121-180

0

0

1

2

1

181-240

0

0

1

1

0

241 or more

0

0

1

0

0

Total renewals

5

4

14

10

7

The categories in Table 3 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:

(i) the offences in respect of which authorizations were given, specifying the number of authorizations given in respect of each of those offences;

Offences specified in authorizations

Statute

Type of offence

Number of Authorizations

2006

2007

2008

2009

2010

Controlled Drugs and Substances Act

Possession of Substance            s. 4

1

0

2

0

0

Trafficking                           ss. 5(1)

74

68

72

107

60

Possession of a narcotic
for the purpose of trafficking ss. 5(2)

66

66

67

84

64

Importing and exporting      ss. 6(1)

37

36

37

45

44

Possession for the purpose
of exporting                         ss. 6(2)

13

18

2

6

0

Production                                  s. 7

27

18

13

34

20

Customs
Act

False statements                      s.153

0

0

0

1

0

Smuggling/attempt
to smuggle goods into Canada     s. 159

0

5

0

1

0

Excise
Act

Unlawful possession of tobacco product                                   s. 216

5

8

2

1

0

Possession of property obtained
by excise offenses                  s. 230

2

0

0

1

0

Immigration and Refugee Protection Act

Organizing entry into Canada s. 117

2

0

0

1

0

Trafficking in persons s. 118

2

0

0

0

0

Offences related to documents s. 122

2

0

0

1

0

Counselling misrepresentation s. 126

2

0

0

1

0

 

 

 

Criminal Code

Forgery of passport  s. 57

0

0

0

1

0

Using explosives s. 81

0

1

1

0

0

Possessing explosives s. 82

0

1

0

0

0

Providing or collecting property
for certain activities s. 83.02

0

1

3

0

6

Providing, making available, etc. property or services for terrorist activities                              s. 83.03

0

1

3

0

2

Using or possessing property for terrorist purposes   s. 83.04

0

1

3

0

0

Participation in the activity of a terrorist group s. 83.18

0

1

3

0

17

Criminal Code

Facilitating terrorist activities 
s. 83.19

0

1

3

2

16

Commission of an offense
for a terrorist group         s. 83.2

0

0

0

0

18

Instructing to carry out activity for a terrorist group             s. 83.21

0

1

3

0

0

Instructing to carry out terrorist activity                           s. 83.22

0

1

3

0

0

Possession of a prohibited
weapon                               s. 90

0

0

0

1

0

Unauthorized possession of a firearm                                s. 91

0

0

0

0

1

Importing or exporting of prohibited weapons            s. 95

0

0

1

2

0

Possession of weapons obtained by commission of offence       s. 96

2

0

2

2

0

Weapons trafficking           s. 99

4

2

4

4

4

Possession for the purpose of weapons smuggling      s. 100

0

0

1

1

3

Importing or exporting (knowing it is unauthorized)                s. 103

5

0

0

0

0

Unauthorized importing or exporting                           s. 104

5

0

0

0

4

Bribery                              s. 120

0

3

2

0

4

Breach of trust                  s. 122

0

7

5

0

2

Obstructing justice            s. 139

3

1

4

1

0

Keeping gaming or betting house                                 s.201

0

0

0

0

2

Betting, pool-selling, book-making, etc.                                    s. 202

0

1

0

4

5

Procuring                          s. 212

1

0

0

0

0

Murder                              s. 235

17

11

12

10

8

Manslaughter                    s. 236

0

0

0

0

1

Attempted murder             s. 239

0

2

2

0

7

Accessory after the fact    s. 240

3

1

0

1

6

Dangerous operation of Motor Vehicles, Vessels and Aircraft causing bodily harm   ss. 249(1)(3)

0

0

1

0

0

Criminal Code

Dangerous operation of Motor Vehicles, Vessels and Aircraft causing death         ss. 249(1)(4)

0

0

1

0

0

Uttering death threats     s. 264.1

4

7

1

0

0

Assault with a weapon
or causing bodily harm     s. 267

3

0

3

1

2

Aggravated assault           s. 268

5

2

8

4

3

Kidnapping                       s. 279

1

2

2

0

0

Hostage Taking               s.279.1

0

0

1

0

0

Abduction in contravention of custody order                    s. 282

0

0

0

1

0

Theft                                  s. 334

0

0

2

2

0

Theft, forgery, etc., of credit card                                               
s. 342

0

0

1

1

4

Robbery                            s. 344

3

3

4

1

1

Extortion                           s. 346

0

6

1

1

0

Criminal interest rate        s. 347

0

0

0

1

1

Break and enter                 s. 348

3

0

1

0

0

Possession of property
obtained by crime             s. 354

56

60

50

68

40

Possession of property obtained by the commission of an offence
s. 355

4

12

8

4

2

Fraud              s. 380

4

9

2

9

1

Fraudulent manipulation of stock exchange transactions       s. 382

0

0

0

1

0

Arson – disregard for human life                                           
s. 433

0

3

1

0

0

Arson – damage to property  s. 434

0

1

0

0

0

Possession of incendiary material                                       
s. 436.1

0

1

0

0

0

Laundering proceeds of counterfeit money                          s. 462.31

32

62

30

46

16

Attempts, accessories        s. 463

14

25

16

37

27

Counselling    s. 464

9

24

17

33

25

Criminal Code

Conspiracy                      s. 465

79

99

90

107

69

Participating in criminal organization                  s. 467.1

1

0

0

0

0

Participating in activities of a criminal organization s. 467.11

27

24

16

7

23

Commission of an offence for a criminal organization s. 467.12

27

17

14

8

24

Instructing commission of an offence for a criminal organization                s. 467.13

14

6

11

5

8

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. Table 4 represents the number of times specific offences were identified in authorizations granted to agents of the Minister of Public Safety and Emergency Preparedness. For example, of the 96 authorizations granted in 2010, 60 of these authorizations specifically provided for the use of electronic surveillance in connection with trafficking a narcotic, 64 for possession for the purpose of trafficking and 44 for importing and exporting.

Classes of places and methods of interception

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

(j) 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;

Classes of places and methods of interception
Class of place Number of authorizations
2006 2007 2008 2009 2010
Residence (permanent)

61

47

59

62

34

Residence (temporary)

8

4

8

9

5

Commercial Premises

30

18

20

18

15

Vehicles

30

19

36

20

18

Other

44

33

42

44

24

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

(k) a general description of the methods of interception involved in each interception under an authorization;

Method and number of interceptions
Method of interception Number of interceptions
2006 2007 2008 2009 2010
Telecommunication

698

629

802

763

397

Microphone

82

149

113

103

58

Video

22

45

23

22

15

Other

106

96

102

118

218

Total

908

919

1040

1006

688

Legal proceedings, use of intercepted material and disposition

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

(l) the number of persons arrested whose identity became known to a peace officer as a result of an interception under an authorization;

Legal proceedings, use of intercepted material and disposition
2006 2007 2008 2009 2010
Persons arrested 540 423 688 530 436

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

(d) 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

(iii) an offence in respect of which an authorization may not be given;

Number of persons identified in an authorization
Category of offence Number of persons
against whom proceedings were commenced
(identified in authorization)
2006 2007 2008 2009 2010
Offence specified in authorization

326

244

328

263

198

Offence for which an authorization may be given but not specified in the authorization

33

59

86

160

34

Offence for which no authorization may be given

82

18

61

89

12

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

(e) 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:

       (i)   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, and

       (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;

Number of persons against whom proceedings were commenced
Category of offence Number of persons against whom proceedings were commenced (not identified in authorization)
2006 2007 2008 2009 2010
Offence specified in authorization

146

136

152

178

155

Offence for which an authorization may be given but not specified in the authorization

17

23

52

46

89

Offence for which no authorization may be given

22

19

53

77

4

Tables 7 and 8 contain 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 Tables 7 and 8 to obtain the total number of persons.

Tables 7 and 8 are interrelated. Table 7 provides information on the number of persons identified in an authorization who were charged with specific categories of offences, i.e., 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. Table 8 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)(m) of the Criminal Code requires information relating to:

(m) 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;

Number of Criminal Proceedings Commenced
2006 2007 2008 2009 2010
Criminal proceedings/Evidence adduced 368 318 450 254 248
Convictions 206 179 46 14 8

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

(n) 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.

Number of Criminal Investigations
2006 2007 2008 2009 2010
Criminal proceedings/Evidence not adduced 192 257 92 124 12
Convictions 183 247 45 47 9

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:

(h) the number of notifications given pursuant to section 196.

Number of notifications given pursuant to section 196
2006 2007 2008 2009 2010
Persons arrested 1004 1007 994 699 624

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. As well, 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:

(a) 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 2006 to 2010

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 private communications that are lawfully intercepted, or to disclose the existence of such intercepted communications.

Section IV - General assessment

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

(b) 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 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

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.

Appendix A

Paragraph 195(1)(a) of the Criminal Code requires information relating to “authorizations for which he and agents to be named in the report who were specially designated in writing by him for the purposes of section 185 made application”.

Designated agents who made applications in accordance with subsections 185(1) and 487.01(1) of the Criminal Code were:

C. Alaire
T. Andreopoulos
R. Benoit
F. Biron
C. Bundy
A. Dalmau
E. Froess
D. Gallant
T. Gilliam
J. Gormley
P. Lapointe
N. Lapp
R. MacDonald
W. McBride
R. Roy
R. Sigurdson

Appendix B

Paragraph 195(1)(b) of the Criminal Code requires information relating to “authorizations given under section 188 for which peace officers to be named in the report who were specially designated by him for the purposes of that section made application”.

No designated Peace Officers made applications in accordance with subsections 188(1) and 487.01(1) of the Criminal Code in 2010.


  1. 1

    A “peace officer” is defined in section 2 of the Criminal Code and includes police officers.

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