ANNEX 15: THE LAW OF THE FIVE EYES
communications are defined as “any oral communication or any telecommunication that
is made by an originator who is in Canada or is intended by the originator to be received
by a person who is in Canada and that is made under circumstances in which it is
reasonable for the originator thereof to expect that it will not be intercepted by any
person other than the person intended by the originator thereof to receive it.”
34.
In order to obtain an interception warrant, the police must make an application to a
judge of a superior court of criminal jurisdiction that is signed by the Attorney General
of the province in which it is made (or an agent specified for this purpose by the
Government). It must be accompanied by an affidavit setting out (s185):
“... (c) the facts relied on to justify the belief that an authorization should be
given together with particulars of the offence;
(d) the type of private communication proposed to be intercepted;
(e) the names, addresses and occupations, if known, of all persons, the
interception of whose private communications there are reasonable grounds
to believe may assist the investigation of the offence, a general description of
the nature and location of the place, if known, at which private communications
are proposed to be intercepted and a general description of the manner of
interception proposed to be used;
(f) the number of instances, if any, on which an application has been made
under this section in relation to the offence and a person named in the affidavit
pursuant to paragraph (e) and on which the application was withdrawn or no
authorization was given, the date on which each application was made and
the name of the judge to whom each application was made;
(g) the period for which the authorization is requested; and
(h) whether other investigative procedures have been tried and have failed or
why it appears they are unlikely to succeed or that the urgency of the matter
is such that it would be impractical to carry out the investigation of the offence
using only other investigative procedures.”57
35.
The application is made ex parte and is heard confidentially. However, targets of
interceptions must be given notice of that fact they have been subject to surveillance,
within 90 days of the authorisation having expired. A confidentiality extension may be
granted up to three years after the investigation has come to a close (s196) in terrorism
offence cases, where the judge is persuaded that it is in the “interests of justice”. There
are special provisions for obtaining an urgent authorisation from the judge (s188).
36.
Stored communications, for example in cloud storage or on a personal computer, may
also be accessed via a production order or search warrant. A search warrant may be
granted by a judge who is satisfied that there are reasonable grounds to believe that
there is “anything on or in respect of which any offence” has been or is suspected to
57
Subsection (h) does not apply to some serious crimes and terrorism offences.
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