Lawful Access–Consultation Document
The provisions of what is now Part VI of the Criminal Code came into force over 28 years ago, on July 1, 1974. These provisions protect the privacy of Canadians by making it an offence to intercept private communications except where permitted by law, while providing the police with the means to obtain judicial authorizations to assist in criminal investigations. The requirements for granting an authorization under section 185 and a warrant under section 487.01 are described in Parts VI and XV of the Criminal Code.
The following are the key features of these requirements:
- a police investigator must swear an affidavit deposing to the facts relied upon to justify the belief that an authorization or warrant should be given, and provide reasonable grounds to believe that electronic surveillance of certain persons or the search of certain locations may assist in the investigation of the offence.
- the designated agent is responsible for ensuring that all matters relating to the application comply with the law. In addition, the agent must ensure that the offence is of a serious enough nature to warrant the application and that there is not already sufficient evidence to prove the offence.
- in the case of a section 185 application, the judge must be satisfied that granting the authorization would be in the best interests of the administration of justice, and that other investigative procedures have been tried and have failed, or other investigative procedures are unlikely to succeed or the matter is so urgent that it would be impractical to carry out the investigation using only other investigative procedures. The latter requirements do not apply in limited circumstances relating to criminal organizations. The judge may also impose such terms and conditions on the implementation of the authorization, as the judge considers appropriate.
The following are the key features of the section 185 procedural regime:
- only the Solicitor General, or persons specially designated by the Solicitor General, may make an application for an authorization in relation to offences that would be prosecuted on behalf of the Government of Canada. In practice, applications for authorizations are made by lawyers employed by or under contract with the federal Department of Justice who are designated by the Solicitor General. Senior police officers are also specially designated by the Solicitor General in the case of emergency authorizations.
- law enforcement officers may request that the designated agent make an application only after receiving the written approval of a senior officer in their respective law enforcement agency.
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