Annual report on the use of electronic surveillance - 2016

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Introduction

Part VI of the Criminal Code sets out the provisions for the law enforcement community to obtain judicial authorization to conduct electronic surveillance of private communications for criminal investigations.  This section also sets out provisions to conduct electronic surveillance of private communications without judicial authorization when there is imminent harm, such as in the case of kidnappings or bomb threats.  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. 

The 2016 Annual Report covers a five-year period from 2012 to 2016.  The Report includes new statistics for the period from January 1, 2016 to December 31, 2016 and updated figures for the years 2012 to 2015.

The Annual Report must include the following information:

New accountability measures were implemented for section 184.4 of the Criminal Code (Immediate interception – imminent harm) which resulted in changes to section 195 (Annual Report).  The reporting period for this new reporting requirement covers

September 27, 2013 to December 31, 2016, beginning on the date it came into force.  Future reports will contain statistics that will eventually cover a five-year reporting period to correspond with other statistics provided in the report.  Some of the required information is the same as for section 185 and section 186; however, there are also new requirements specifically for section 184.4.  

The Annual Report must now also include information specifically for section 184.4 such as:

The 2016 Annual Report is organized in the following manner:

Section I  – Overview of Part VI of the Criminal Code

Part VI of the Criminal Code sets out the provisions for the law enforcement community to obtain judicial authorization to conduct electronic surveillance for criminal investigations.

Only designated peace officers and agents can obtain this authorization to intercept private communications, and only for certain serious offences, which are listed in section 183 of the Criminal Code (e.g., 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 longer than 60 days (paragraph 186(4)(e)).  Designated persons may apply to a judge to have the authorization renewed, which extends the 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:

In 1993, Parliament enacted section 184.4 (Immediate interception – imminent harm) of the Criminal Code to allow the use of wiretapping without a court authorization when there is imminent harm, such as in the case of kidnappings or bomb threats.  In R. v. Tse, the Supreme Court of Canada found that a wiretap authority without a court authorization in situations of imminent harm could be justified under the Canadian Charter of Rights and Freedoms.  However, the Supreme Court declared that section 184.4 was unconstitutional because it contained no accountability measures.  The Supreme Court gave Parliament until April 13, 2013, to amend the provision to make it constitutionally compliant.  On March 27, 2013, legislation responding to R v. Tse received Royal Assent, adding accountability safeguards to the existing provision for wiretaps in situations of imminent harm under the Criminal Code.

Section II  Statistics

Applications for authorizations and renewals

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

The table below presents the number of applications made for audio and video authorizations and renewals each year for the five‑year period from 2012 to 2016.  The data is categorized by the five 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.

Table 1
Type of Application Number of Applications
2012 2013 2014 2015 2016

Audio s. 185 C.C.

78

85

66

47

44

Video s. 487.01 C.C.

33

42

46

24

25

Renewals s. 186 C.C.

1

5

1

1

3

Emergency audio s. 188 C.C.

0

0

1

0

0

Emergency video s. 487.01 C.C.

0

0

1

0

0

Total

112

132

115

72

72

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

Table 2
Terms and Conditions or Refusal Number of Applications
2012 2013 2014 2015 2016

With terms and conditions

108

129

114

71

72

Without terms and conditions

4

3

1

1

0

Refusal

0

0

0

0

0

Period for which authorizations and renewals were granted

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

The calculations below represent the “average period of time valid” for 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 and emergency audio and video authorizations up to 36 hours, 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.  It is also important to note that some authorizations investigating organized crime may be valid for up to one year, which increases the authorizations’ overall average period of validity. 

Table 3
Type of Authorization Average Period of Time Valid
2012 2013 2014 2015 2016

Audio s. 185 C.C. (days)

60.2

47.1

63.9

58.2

39.8

Video s. 487.01 C.C. (days)

89.7

52.9

67.5

63.4

45.2

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

0

0

36

0

0

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

0

0

36

0

0

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

The categories in the table below representing renewals 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.

Table 4
Renewal Period (days) Number of Authorizations Renewed
2012 2013 2014 2015 2016

61-120

1

2

1

1

3

121-180

0

0

0

0

0

181-240

0

1

0

0

0

241 or more

0

0

0

0

0

Offences specified in authorizations

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

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.  The table below represents the number of times specific offences were identified in authorizations granted to agents by the Minister of Public Safety and Emergency Preparedness.  For example, of the 72 authorizations granted in 2016, 42 of these authorizations specifically provided for the use of electronic surveillance in connection with trafficking a narcotic, 41 for possession for the purpose of trafficking and 20 for importing and exporting.

Table 5
Statute Type of Offence Number of Authorizations
2012 2013 2014 2015 2016

Controlled Drugs and Substances Act

Trafficking ss. 5(1)

57

77

52

33

42

Possession of a narcotic

for the purpose of trafficking ss. 5(2)

55

78

54

35

41

Importing and exporting ss. 6(1)

30

53

23

27

20

Possession for the purpose

of exporting ss. 6(2)

0

4

0

0

0

Production s. 7

17

12

5

4

0

Customs Act

False Statements s. 153

3

0

0

0

0

Smuggling /attempt to smuggle goods into Canada s. 159

2

2

0

0

0

Excise

Act

Unlawful production, sale, etc. of tobacco or alcohol s.214

0

6

0

0

2

Unlawful possession of tobacco product s. 216

4

1

0

1

0

Possession of property obtained

by excise offenses s. 230

2

1

0

0

0

Export and Import Permits Act

Export or attempt to export s.13

1

0

0

0

0

Immigration and Refugee Protection Act

Organizing entry into Canada s. 117

0

6

0

0

0

Trafficking in persons s.118

0

4

0

0

0

Counselling misrepresentation s. 126

0

4

0

0

0

Security of Information Act

Use of trade secret for the benefit of foreign economic entity s. 19

1

0

0

0

0

 

Criminal Code

Providing or collecting property for certain activities s. 83.02

4

0

4

0

0

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

0

0

2

4

2

Using or possessing property for terrorist purposes s. 83.04

0

0

2

0

0

Participation in the activity of a terrorist group s. 83.18

27

18

30

18

8

Facilitating terrorist activities s. 83.19

8

5

14

13

2

Leave or attempting to leave  Canada s. 83.181

0

0

20

12

4

Leaving Canada to facilitate terrorist activity  s. 83.191

0

0

6

2

2

Commission of an offense

for a terrorist group s. 83.2

28

15

9

5

0

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

0

0

8

6

2

Instructing to carry out terrorist activity s. 83.22

0

2

0

4

0

Advocating or promoting the commission of terrorism offences

s. 83.221

0

0

0

2

0

Leave Canada to commit an offence that is terrorist activity s. 83.202

0

0

2

1

0

Possession of weapons obtained by commission of offence s. 96

0

0

4

0

0

Weapons trafficking s. 99

2

0

7

3

1

Possession for the purpose of weapons smuggling s. 100

1

2

10

0

0

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

1

0

1

1

0

Bribery s. 120

2

0

6

0

0

Breach of trust s. 122

1

6

6

0

3

Obstructing justice s. 139

4

1

1

0

0

Escape and being at large without excuse. s. 145

0

0

0

4

0

Keeping gaming or betting house s.201

3

0

0

0

0

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

7

0

0

0

0

Procuring s. 212

0

4

2

0

0

Murder s. 235

0

3

1

2

0

Accessory after the fact s. 240

2

1

0

1

0

 

Sexual assault s. 271

0

0

1

0

0

Trafficking in Person s. 279.01

0

4

0

0

0

Hostage Taking s. 279.1

0

0

2

2

0

Robbery s. 344

0

1

0

0

0

Extortion s. 346

2

0

0

0

0

Break and enter s. 348

0

1

0

0

0

Possession of property obtained by crime s. 354

40

65

42

25

27

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

5

0

10

0

1

Forgery s. 367

0

0

0

0

2

Use, trafficking or possession of  forged document s. 368

0

0

0

0

2

Fraud s. 380

2

9

1

0

0

Arson – disregard for human life s. 433

0

0

1

0

0

Arson – damage to property s. 434

2

0

0

0

0

Making, having or dealing in instruments for counterfeiting s. 458

0

0

0

1

0

Laundering proceeds of counterfeit money s. 462.31

32

50

35

11

19

Attempts, accessories s. 463

21

27

42

10

3

Counselling s. 464

25

27

41

10

4

Conspiracy s. 465

76

90

76

54

50

Participating in activities of a criminal organization s. 467.11

15

25

9

2

13

Commission of an offence for a criminal organization s. 467.12

20

24

12

8

8

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

9

19

12

0

8

Classes of places and methods of interception

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

Table 6
Class of Place Number of Authorizations
2012 2013 2014 2015 2016

Residence (permanent)

34

31

20

23

15

Residence (temporary)

4

2

5

9

5

Commercial Premises

15

13

8

10

5

Vehicles

17

20

16

19

19

Other

34

35

27

17

15

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

Table 7
Method of Interception

Number of Interceptions

2012 2013 2014 2015 2016

Telecommunication

662

497

453

537

393

Microphone

84

88

188

94

74

Video

13

45

48

47

48

Other

29

26

14

37

49

Legal proceedings, use of intercepted material and disposition

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

Table 8
  2012 2013 2014 2015 2016

Number of Persons Arrested

264

260

201

60

47

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

The table below contains 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 this table to obtain the total number of persons against whom proceedings were commenced.

Table 9
Category of Offence Number of Persons

Against Whom Proceedings were Commenced

(identified in authorization)

2012 2013 2014 2015 2016

Offence specified in authorization

219

189

220

69

82

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

39

58

43

15

20

Offence for which no authorization may be given

43

68

34

8

16

Tables 9 and 10 are interrelated.  Table 9 provides information on the number of persons identified in an authorization who were charged with specific categories of offences, e.g., 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.  The subsequent Table in this report 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)(e) of the Criminal Code requires information relating to:

The table below contains 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 this table to obtain the total number of persons against whom proceedings were commenced.

Table 10
Category of Offence Number of Persons Against Whom Proceedings were Commenced (not identified in authorization)
2012 2013 2014 2015 2016

Offence specified in authorization

138

158

108

52

48

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

21

65

22

4

9

Offence for which no authorization may be given

41

22

30

1

7

Again, Tables 9 and 10 are interrelated.  The former table provides information on the number of persons identified in an authorization who were charged with specific categories of offences, e.g., 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. The latter table provides similar information on persons not identified in an authorization, but who were charged as a result of information obtained from the authorized interception.

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

Table 11
  Number of Criminal Proceedings
2012 2013 2014 2015 2016

Criminal proceedings / Evidence adduced

165

812

458

169

128

Convictions

112

359

138

34

9

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

Table 12
  Number of Criminal Investigations
2012 2013 2014 2015 2016

Criminal proceedings / Evidence not adduced

243

198

216

78

44

Convictions

113

71

52

7

0

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:

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.  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.

Table 13
  2012 2013 2014 2015 2016

Number of Notifications

956

791

792

982

703

Prosecutions for unlawful interceptions and unlawful disclosure

Paragraph 195(3)(a) of the Criminal Code requires that the Annual Report provide information relating to:

No such prosecutions have been initiated for the period of 2012 to 2016.

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 a private communication that was lawfully intercepted, or to disclose the existence of such intercepted communications.

Section III – Statistics for Section 184.4 (Immediate Interception – Imminent Harm)

Paragraph 195(1)(c) of the Criminal Code requires that the Annual Report provide information relating to interceptions under section 184.4 (Immediate interception – imminent harm).

New accountability measures were implemented for section 184.4 which resulted in changes to section 195 (Annual Report). The list of reporting requirements for section 184.4 can be found in the beginning of the Report under Introduction. The reporting period for the new reporting requirement is from September 27, 2013 to December 31, 2016, beginning on the date it came into force.

No such interceptions were initiated for the period therefore; there are no statistics to report under this section.

Future reports will contain statistics that will eventually cover a five-year reporting period to correspond with other requirements in the report.     

Section IV  General assessment

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

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 crucial 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.

Footnotes

  1. 1

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

  2. 2

    A “police officer” is defined in section 2 of the Criminal Code.

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