Annual report on the use of electronic surveillance - 2012

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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 for 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 2012 Annual Report covers a five-year period from 2008 to 2012. The Report includes new statistics for the period from January 1, 2012 to December 31, 2012, and updates the figures for the years 2008 to 2011.

The 2012 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 for 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 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 to intercept private communications 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 - StatisticsFootnote 2

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; and

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

Table 1: Applications for authorizations and renewals
Type of application made Number of applications
2008 2009 2010 2011 2012
Audio s.185 C.C. 85 93 71 82 68
Video s.487.01 C.C. 11 29 31 41 27
Renewals s.186 C.C. 16 10 9 13 0
Emergency audio s.188 C.C. 2 1 0 0 0
Emergency video s.487.01 C.C. 0 0 0 0 0
Total 114 133 111 136 95

Table 1 presents the number of applications made for audio and video authorizations and renewals each year for the five‑year period from 2008 to 2012. 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, as well as emergency applications (maximum duration 36 hours) pursuant to subsection 188(1) and section 487.01 of the Criminal Code.

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

(c) the number of applications referred to in paragraphs (a) and (b) that were granted, the number of those applications that were refused and the number of applications referred to in paragraph (a) that were granted subject to terms and conditions.

Figure 1: Number of applications granted, refused and subject to terms and conditions

Graph: With and without terms and conditions
Image Description

In 2008, there were 110 applications that were granted with terms and conditions; 1 application that was granted without terms and conditions and 0 applications that were refused.

In 2009, there were 132 applications that were granted with terms and conditions; 2 applications that were granted without terms and conditions and 0 applications that were refused.

In 2010, there were 110 applications that were granted with terms and conditions; 2 applications that were granted without terms and conditions and 0 applications that were refused.

In 2011, there were 135 applications that were granted with terms and conditions; 1 application that was granted without terms and conditions and 0 applications that were refused.

In 2012, there were 91 applications that were granted with terms and conditions; 4 applications that were granted without terms and conditions and 0 applications that were refused

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.

Table 2: Period for which authorizations and renewals were granted
Type of authorization Average period of time valid
20078 2009 2010 2011 2012
Audio s.185 C.C. (days) 59.3
57.2
71.8
64.7 75.5
Video s.487.01 C.C. (days) 50.9 53.1 81.5 78.4 96.9
Emergency audio s.188 C.C. (hours) 72 36.0 0 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 originally 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;

Table 3 – number of authorizations valid for more than 60 days
Renewal period (days) Number of authorizations renewed
2008 2009 2010 2011 2012
61-120 11 7 6 8 0
121-180 1 2 3 1 0
181-240 1 1 0 2 0
241 or more 1 0 0 1 0
Total renewals 14 10 9 12 0

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.

Table 4: Offences specified in authorizations
Statute Type of offence Number of Authorizations
2008 2009 2010 2011 2012
Controlled Drugs and Substances Act Possession of Substance s. 4 2 0 0 0 0
Trafficking ss. 5(1) 76 107 66 83 50
Possession of a narcotic
for the purpose of trafficking ss. 5(2)
71 84 69 90 49
Importing and exporting ss. 6(1) 37 41 46 62 25
Possession for the purpose
of exporting ss. 6(2)
2 6 1 0 0
Production        s. 7 13 34 20 22 11
Export and Import Permits Act Export or attempt to export s.13 0 0 0 0 1
Customs
Act
False statements s.153 0 1 0 8 1
Smuggling/attempt
to smuggle goods into Canada     s. 159
0 1 0 14 0
Excise
Act
Unlawful possession or sale of improperly packaged tobacco s.32 0 0 0 1 0
Unlawful production, sale, etc. of tobacco or alcohol s.214 0 0 0 4 0
Unlawful possession of tobacco product s. 216 2 1 0 9 2
Falsifying or destroying records s.219 0 0 0 8 0
Possession of property obtained
by excise offenses s. 230
0 1 0 0 0
Immigration and Refugee Protection Act Organizing entry into Canada s. 117 0 1 0 0 0
Offences related to documents s. 122 0 1 0 0 0
Counselling misrepresentation s. 126 0 1 0 0 0
Forgery of passport s. 57 0 1 0 0 0
Criminal Code Using explosives s. 81 1 0 0 0 0
Providing or collecting property
for certain activities s. 83.02
3 0 8 0 4
Providing, making available, etc. property or services for terrorist activities                   s. 83.03 3 0 2 0 0
Criminal Code Using or possessing property for terrorist purposes s. 83.04 3 0 0 1 0
Participation in the activity of a terrorist group s. 83.18 3 0 18 1 21
Facilitating terrorist activities                s. 83.19 3 2 18 1 4
Commission of an offense
for a terrorist group s. 83.2
0 0 20 0 22
Instructing to carry out activity for a terrorist group s. 83.21 3 0 1 0 0
Instructing to carry out terrorist activity s. 83.22 3 0 0 0 0
Possession of a prohibited weapon s. 90 0 1 0 0 0
Unauthorized possession of a firearm s. 91 0 0 1 0 0
Importing or exporting of prohibited weapons s. 95 1 2 0 0 0
Possession of weapons obtained by commission of offence s. 96 2 2 1 0 0
Weapons trafficking s. 99 4 4 5 3 2
Possession for the purpose of weapons smuggling s. 100 1 1 4 2 0
Importing or exporting (knowing it is unauthorized) s. 103 0 0 0 2 0
Unauthorized importing or exporting s. 104 0 0 5 2 0
Bribery s. 120 2 0 4 4 2
Breach of trust s. 122 5 0 2 0 1
Obstructing justice s. 139 4 1 0 6 2
Keeping gaming or betting house   s.201 0 0 2 6 3
Betting, pool-selling, book-making, etc. s. 202 0 4 5 2 7
Murder s. 235 12 10 9 5 0
Manslaughter s. 236 0 0 1 0 0
Attempted murder s. 239 2 0 7 0 0
Accessory after the fact s. 240 0 1 6 4 2
Dangerous operation of Motor Vehicles, Vessels and Aircraft causing bodily harm ss. 249(3) 1 0 0 0 0
Criminal Code Dangerous operation of Motor Vehicles, Vessels and Aircraft causing death ss. 249(4) 1 0 0 0 0
Uttering death threats s. 264.1 1 0 0 0 0
Assault with a weapon or causing bodily harm s. 267 3 2 2 0 0
Aggravated assault s. 268 8 4 3 1 0
Kidnapping s. 279 2 0 0 0 0
Hostage Taking     s.279.1 1 0 0 0 0
Abduction in contravention of custody order s. 282 0 1 0 0 0
Theft s. 334 2 2 0 0 0
Theft, forgery, etc., of credit card        
s. 342
1 1 4 0 0
Unauthorized use of a computer s. 342.1 0 0 4 0 0
Robbery s. 344 4 1 1 7 0
Extortion            s. 346 1 1 0 8 0
Criminal interest rate s. 347 0 1 1 0 0
Break and enter s. 348 1 0 0 0 0
Possession of property
obtained by crime s. 354
50 68 43 76 33
Possession of property obtained by the commission of an offence s. 355 8 4 3 2 5
Fraud s. 380 2 9 1 0 2
Fraudulent manipulation of stock exchange transactions s. 382 0 1 0 0 0
Arson – disregard for human life             s. 433 1 0 0 0 0
Arson – damage to property s. 434 0 0 0 0 2
Laundering proceeds of counterfeit money          s. 462.31 30 46 20 49 29
Attempts, accessories s. 463 16 37 27 45 11
Counselling s. 464 17 33 25 48 15
Conspiracy s. 465 95 109 77 113 61
Criminal Code Participating in activities of a criminal organization s. 467.11 16 7 25 31 14
Commission of an offence for a criminal organization s. 467.12 14 9 26 27 19
Instructing commission of an offence for a criminal organization s. 467.13 11 5 10 15 8
Security of Information Act Communicating safeguarded information     s. 16 0 0 0 2 0
Breach of trust with respect of safeguarded information s. 18 0 0 0 2 0
Use of trade secret for the benefit of foreign economic entity s. 19 0 0 0 0 1
Preparatory acts s. 22 0 0 0 2 0
Conspiracy, attempts, etc. s. 23 0 0 0 2 0

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 95 authorizations granted in 2012, 50 of these authorizations specifically provided for the use of electronic surveillance in connection with trafficking a narcotic, 49 for possession for the purpose of trafficking and 25 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.

Table 5 : Places of interception
Class of place Number of authorizations
2008 2009 2010 2011 2012
Residence (permanent) 61 71 41 39 25
Residence (temporary) 8 9 5 5 4
Commercial Premises 22 21 18 13 11
Vehicles 37 23 23 17 11
Other 44 53 26 34 23

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.

Table 6: Methods of interception
Method of interception Number of interceptions
2008 2009 2010 2011 2012
Telecommunication 843 938 572 822 398
Microphone 115 113 69 69 38
Video 25 33 21 34 4
Other 103 147 222 41 21
Total 1086 1231 884 966 461

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.

Figure 2: the number of persons arrested

Legal proceedings, use of intercepted material and disposition
Image Description

In 2008, there were 698 persons arrested whose identity became known to a peace officer as a result of an interception under an authorization.

In 2009, there were 659 persons arrested whose identity became known to a peace officer as a result of an interception under an authorization.

In 2010, there were 605 persons arrested whose identity became known to a peace officer as a result of an interception under an authorization.

In 2011, there were 179 persons arrested whose identity became known to a peace officer as a result of an interception under an authorization.

In 2012, there were 130 persons arrested whose identity became known to a peace officer as a result of an interception under an authorization.

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.

Table 7: Number of persons against whom proceedings were commenced (identified in authorization)
Category of offence Number of persons
against whom proceedings were commenced
(identified in authorization)
2008 2009 2010 2011 2012
Offence specified in authorization 349 328 306 257 98
Offence for which an authorization may be given but not specified in the authorization 122 171 44 49 31
Offence for which no authorization may be given 71 104 16 13 7

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;

(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.

Table 8: Number of persons against whom proceedings were commenced
Category of offence Number of persons
against whom proceedings were commenced (not identified in authorization)
2008 2009 2010 2011 2012
Offence specified in authorization 154 235 215 121 80
Offence for which an authorization may be given but not specified in the authorization 64 49 103 17 14
Offence for which no authorization may be given 60 84 73 4 8

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.

Figure 3: Number of criminal proceedings commenced where evidence was adduced and number of resulting convictions

Criminal proceedings/Evidence adduced and Convictions
Image Description

In 2008, there were 510 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 83 of those proceedings resulted in a conviction.

In 2009, there were 338 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 108 of those proceedings resulted in a conviction.

In 2010, there were 409 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 14 of those proceedings resulted in a conviction.

In 2011, there were 225 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 26 of those proceedings resulted in a conviction.

In 2012, there were 301 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 3 of those proceedings resulted in a conviction.

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.

Figure 4: Number of criminal investigations where evidence was not adduced and number of resulting convictions

Criminal proceedings/evidence not adduced and convictions
Image Description

In 2008, there were 178 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 and 99 of those proceedings resulted in a conviction.

In 2009, there were 196 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 and 131 of those proceedings resulted in a conviction.

In 2010, there were 47 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 and 43 of those proceedings resulted in a conviction.

In 2011, there were 121 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 and 73 of those proceedings resulted in a conviction.

In 2012, there were 114 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 and 4 of those proceedings resulted in a conviction.

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.

Figure 5: Number of notifications given

Notifications graph
Image Description

In 2008, there were 1420 notifications given pursuant to section 196.

In 2009, there were 1030 notifications given pursuant to section 196.

In 2010, there were 1013 notifications given pursuant to section 196.

In 2011, there were 1132 notifications given pursuant to section 196.

In 2012, there were 761 notifications given pursuant to section 196.

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 2008 to 2012.

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

Investigations of the activities of organized crime groups are increasingly complex and sometimes criminal charges are difficult to prove in a court of law. The use of electronic surveillance often provides strong evidence against those accused of being involved in illegal activities, increasing the likelihood of conviction. The prosecution of such offenders increases public confidence in the criminal justice system and contributes to public safety by holding such persons responsible for their actions.

Appendices

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 in 2012 were:

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 2012.


  1. 1

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

  2. 2

    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.

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