ARCHIVE - Annual report on the use of electronic surveillance - 2008

Archived Content

Information identified as archived is provided for reference, research or record-keeping purposes. It is not subject to the Government of Canada Web Standards and has not been altered or updated since it was archived. Please contact us to request a format other than those available.

Adobe Acrobat version (PDF 220KB)

Table of contents


Section I – Introduction

Part VI of the Criminal Code 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 2008 Annual Report covers a five-year period from 2004 to 2008.  The Report includes new statistics for the period from January 1, 2008 to December 31, 2008, and updates the figures for the years 2004 to 2007.

The 2008 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)).  However, 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 (subsection 186(6)).

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;

Table 1
Type of application made Number of applications
2004 2005 2006 2007 2008
Audio S.185 C.C. 117 95 80 68 76
Video S.487.01 C.C. 27 17 16 36 11
Renewals S.186 C.C. 8 5 5 5 15
Emergency audio S.188 C.C. 0 1 0 1 1
Emergency video S.487.01 C.C. 0 0 0 0 0
Total 152 118 101 110 103

Table 1 presents the number of applications made for audio and video authorizations and renewals each year for the five‑year period from 2004 to 2008. 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), 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.

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;

Note: 3 applications for an authorization or a renewal have been refused for the 2004-2008 period, one of which was in 2008.

Figure 1

With and without terms and conditions

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
Type of authorization Average period of time valid
2004 2005 2006 2007 2008
Audio S.185 C.C. (days) 65.4 62.7 62.7 63 57.5
Video S.487.01 C.C. (days) 73.4 66.5 57.4 64.3 50.9
Emergency audio S.188 C.C. (hours) 0.0 36.0 0.0 24.0 36.0
Emergency video S.487.01 C.C. (hours) 0.0 0.0 0.0 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
Renewal period (days) Number of authorizations renewed
2004 2005 2006 2007 2008
61-120 3 3 5 4 8
121-180 1 1 0 0 1
181-240 1 0 0 0 2
241 or more 0 0 0 0 1
Total renewals 5 4 5 4 12

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
Statute Type of offence Number of Authorizations
2004 2005 2006 2007 2008
Controlled
Drugs and Substances
Act
Possession of Substance s. 4 0 0 1 0 2
Trafficking ss. 5(1) 115 88 74 68 71
Possession of a narcotic for the purpose of trafficking ss. 5(2) 105 77 66 66 66
Importing and exporting ss. 6(1) 64 40 37 36 37
Possession for the purpose of exporting  ss. 6(2) 10 6 13 18 2
Production s. 7 45 22 27 18 13
Possession of property
obtained by designated substance offences s. 8
1 0 0 0 0
Laundering proceeds of designated substance offences  s. 9 1 0 0 0 0
Export and
Import
Permits Act
Export or attempt to export s. 13 0 0 0 0 0
Import or attempt to import s. 14 0 0 0 0 0
Customs
Act
Failure to report imported goods to the nearest custom office s. 12 0 2 0 0 0
False statements s. 153 0 0 0 0 0
Keeping, acquiring, disposing of goods illegally imported s. 155 1 0 0 0 0
Smuggling/attempt to smuggle goods into Canada s.159 4 0 0 5 0
Possession of property obtained by smuggling s.163.1 0 0 0 0 0
Laundering proceeds of smuggling s.163.2 0 0 0 0 0
Competition
Act
Deceptive marketing s.52.1 0 0 0 0 0
Excise
Act
Unlawful possession of fraudulently stamped tobacco s.29 0 2 0 0 0
Unlawful possession or sale of improperly packaged tobacco s.32 0 2 0 0 0
Possession of property obtained by excise offences s.126.1 0 0 0 0 0
Laundering proceeds of excise offences s.126.2 0 0 0 0 0
Unlawful distillation s.158 0 0 0 0 0
Unlawful selling of spirits s.163 0 0 0 0 0
Unlawful production, sale, etc. of tobacco or alcohol s.214 1 0 0 0 0
Unlawful possession of tobacco product s.216 4 0 5 8 2
Falsifying or destroying records s.219 0 0 0 0 0
Possession of property obtained by excise offenses s.230 0 0 2 0 0
Unlawful packaging or stamping ss.233(1) 0 0 0 0 0
Unlawful possession or sale of manufactured tobacco or cigars ss.240(1) 1 0 0 0 0
Explosives
Act
Manufacture, use, sale, possession, etc., of explosives s.6 0 0 0 0 0
Immigration
Act
Organizing entry in Canada s.94 0 0 0 0 0
Coming into Canada by use of a false or improperly obtained passport ss.94(1) 0 0 0 0 0
Counselling false statements s.94.5 0 0 0 0 0
Immigration Refugee
Protection Act
Organizing entry into Canada s.117 0 1 2 0 0
Trafficking in persons s.118 0 0 2 0 0
Offences related to documents s.122 0 0 2 0 0
Counselling misrepresentation s.126 0 0 2 0 0
Criminal Code Forgery of passport s.57 0 0 0 0 0
Using explosives s.81 0 5 0 1 1
Possessing explosives s.82 2 6 0 1 0
Providing or collecting property for certain activities s.83.02 0 0 0 1 0
Providing, making available, etc. property or services for terrorist activities s.83.03 2 0 0 1 0
Using or possessing property for terrorist purposes s.83.04 2 0 0 1 0
Participation in the activity of a terrorist group s.83.18 2 1 0 1 0
Facilitating terrorist activities s.83.19 2 0 0 1 0
Instructing to carry out activity for a terrorist group s.83.21 2 0 0 1 0
Instructing to carry out terrorist activity s.83.22 2 0 0 1 0
Possession of a prohibited weapon s.90 0 0 0 0 0
Unauthorized possession of a firearm s.91 0 2 0 0 0
Importing or exporting of prohibited weapons  s. 95 0 0 0 0 1
Possession of weapons obtained by commission of offence s.96 0 0 2 0 2
Weapons trafficking s.99 2 12 4 2 4
Possession for the purpose of weapons smuggling s.100 5 9 0 0 1
Importing or exporting (knowing it is unauthorized s.103 0 0 5 0 0
Unauthorized importing or exporting s. 104 0 0 5 0 0
Bribery s. 120 0 0 0 3 2
Breach of trust s.122 3 2 0 7 5
Obstructing justice s.139 7 2 3 1 4
Escape, etc. ss.145(1) 0 0 0 0 0
Keeping gaming or betting house s.201 2 0 0 0 0
Criminal Code Betting, pool-selling, book-making, etc. s.202 1 2 0 1 0
Keeping a bawdy house ss.210(1) 0 0 0 0 0
Procuring s.212 0 0 1 0 0
Murder s.235 21 23 17 10 11
Manslaughter s.236 0 3 0 0 0
Attempted murder s.239 1 0 0 1 1
Accessory after the fact s.240 0 4 3 1 0
Dangerous operation of Motor Vehicles, Vessels and Aircraft causing bodily harm  ss. 249(1)(3) 0 0 0 0 1
Dangerous operation of Motor Vehicles, Vessels and Aircraft causing death ss. 249(1)(4) 0 0 0 0 1
Uttering death threats s.264.1 0 4 3 7 1
Assault with a weapon
or causing bodily harm s.267
3 2 2 0 3
Aggravated assault s.268 3 3 4 2 7
Unlawfully causing bodily harm s.269 0 3 0 0 0
Sexual assault s.271 0 4 0 0 0
Kidnapping s.279 1 6 1 2 2
Hostage Taking s.279.1 0 0 0 0 1
Abduction s.283 0 0 0 0 0
Possession of a device to obtain telecommunication facility or service s.327 0 0 0 0 0
Theft s.334 1 0 0 0 2
Theft, forgery, etc., of credit card s.342 0 2 0 0 1
Unauthorized use of credit card data ss. 342(3) 0 2 0 0 0
Robbery s.344 3 7 2 2 4
Extortion s.346 3 5 0 6 1
Criminal interest rate s.347 1 2 0 0 0
Break and enter s.348 0 0 2 0 1
Criminal Code Possession of property obtained by crime s.354 86 52 56 60 49
Possession of property obtained by the commission of an offence s.355 0 5 4 12 0
Forgery s.367 0 0 0 0 0
Uttering forged document s.368 1 0 0 0 0
Possession of instruments of forgery s.369 0 0 0 0 0
Fraud s.380 3 6 4 9 2
Fraudulent manipulation of stock exchange transactions s.382 2 0 0 0 0
Intimidation of justice system participant or journalist s.423.1 0 0 0 0 0
Mischief s.430 0 0 0 0 0
Possession of explosive or other lethal device s.431.2 2 0 0 0 0
Arson - disregard for human life s.433 0 3 0 3 1
Arson - damage to property s.434 0 0 0 1 0
Arson for fraudulent purposes s.435 1 0 0 0 0
Possession of incendiary material s.436.1 0 0 0 1 0
Making counterfeit money s.449 0 0 0 0 0
Buying, receiving, possessing or importing counterfeit money s.450 0 0 0 0 0
Criminal Code Uttering counterfeit money s.452 0 0 0 0 0
Possession of a machine, instrument for making counterfeit money s.458 0 0 0 0 0
Laundering proceeds of counterfeit money s.462.31 52 34 32 62 30
Attempts, accessories s.463 18 5 14 25 16
Counselling s.464 16 3 9 24 17
Conspiracy s.465 138 108 79 98 89
Participating in criminal organization s.467.1 0 0 1 0 0
Participating in activities of a criminal organization s.467.11 22 11 27 24 16
Commission of an offence for a criminal organization s.467.12 15 12 27 17 14
Instructing commission of an offence for a criminal organization s.467.13 12 11 14 6 11

Most authorizations granted to agents of 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 103 authorizations granted in 2008, 71 of these authorizations specifically provided for the use of electronic surveillance in connection with trafficking a narcotic, 66 for possession for the purpose of trafficking and 37 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
Class of place Number of authorizations
2004 2005 2006 2007 2008
Residence (permanent) 57 50 60 44 54
Residence (temporary) 10  6  8 3 8
Commercial Premises 24 23 30 15 18
Vehicles 26 30 29 17 32
Other 46 41 43 31 37

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
Method of interception Number of interceptions
2004 2005 2006 2007 2008
Telecommunication 1069 667 690 603 698
Microphone 119 86 81 143 101
Video 38 21 22 40 19
Other 73 72 106 94 155
Total 1299 846 899 880 973

* It should be noted that the data will be revised in future years to reflect updated statistics from Canadian police forces.

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

Legal proceedings, use of intercepted material and disposition

* It should be noted that the data will be revised in future years to reflect updated statistics from Canadian police forces.

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
Category of offence Number of persons
against whom proceedings were commenced
(identified in authorization)
2004 2005 2006 2007 2008
Offence specified in authorization 288 158 296 176 264
Offence for which an authorization may be given but not specified in the authorization  56 45 30 41 66
Offence for which no authorization may be given  38 13 82 12 54

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;

Table 8
Category of offence Number of persons
against whom proceedings were commenced (not identified in authorization)
2004 2005 2006 2007 2008
Offence specified in authorization 134 51 127 97 126
Offence for which an authorization may be given but not specified in the authorization 21 6 14 14 38
Offence for which no authorization may be given 36 31 22 11 29

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. It should be noted that the data reported for 2007 and 2008 will likely rise in future reports as data updates are received.

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

Criminal proceedings/Evidence adduced and Convictions

* It should be noted that the data will be revised in future years to reflect updated statistics from Canadian police forces.

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

Criminal proceedings/evidence not adduced and convictions

* It should be noted that the data will be revised in future years to reflect updated statistics from Canadian police forces.

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

Notifications graph

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 interests 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 from 2004 to 2008.

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.

Appendix A

Paragraph 195(1)(a) of the Criminal Code requires information relating to:

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

T. Andreopoulos
L. Boucher
M. Cullen
A. Dalmau
M. Dash
L. Decarie
M. Fortune-Stone
E. Froess
R. Goldstein
S. Kovacevich
P. Lapraire
W. LeBans
G. Lennox
M. Madden
C. Mainella
J. Martin
W. Mcbride
M. McQueen
D. McWhinnie
R. Parker
A. Ratsoy
E. Reid
G. Villeneuve

Appendix B

Paragraph 195(1)(b) of the Criminal Code requires information relating to:

(a) designated Peace Officer who made an application in accordance with subsections 188(1) and 487.01(1) of the Criminal Code:

B. Brennan


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

Date modified: