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Response to the Supreme Court of Canada Decision in R. v. Tse Act (S.C. 2013, c. 8)

Assented to 2013-03-27

Response to the Supreme Court of Canada Decision in R. v. Tse Act

S.C. 2013, c. 8

Assented to 2013-03-27

An Act to amend the Criminal Code

SUMMARY

This enactment amends the Criminal Code to provide, in response to the Supreme Court’s decision in R. v. Tse, safeguards related to the authority to intercept private communications without prior judicial authorization under section 184.4 of that Act. Notably, the enactment

  • (a) requires the Minister of Public Safety and Emergency Preparedness and the Attorney General of each province to report on the interceptions of private communications made under section 184.4;

  • (b) provides that a person who has been the object of such an interception must be notified of the interception within a specified period;

  • (c) narrows the class of individuals who can make such an interception; and

  • (d) limits those interceptions to offences listed in section 183 of the Criminal Code.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

ALTERNATIVE TITLE

Marginal note:Alternative title

 This Act may be cited as the Response to the Supreme Court of Canada Decision in R. v. Tse Act.

R.S., c. C-46CRIMINAL CODE

 Section 183 of the Criminal Code is amended by adding the following in alphabetical order:

“police officer”

« policier »

“police officer” means any officer, constable or other person employed for the preservation and maintenance of the public peace;

Marginal note:1993, c. 40, s. 4

 Section 184.4 of the Act is replaced by the following:

Marginal note:Immediate interception — imminent harm

184.4 A police officer may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication if the police officer has reasonable grounds to believe that

  • (a) the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained under any other provision of this Part;

  • (b) the interception is immediately necessary to prevent an offence that would cause serious harm to any person or to property; and

  • (c) either the originator of the private communication or the person intended by the originator to receive it is the person who would commit the offence that is likely to cause the harm or is the victim, or intended victim, of the harm.

 Paragraphs 191(2)(a) and (b.1) of the Act are amended by replacing “police officer or police constable” and “officer or constable” with “police officer” and “officer”, respectively.

Marginal note:2005, c. 10, subpar. 34(1)(f)(ix)
  •  (1) Subsection 195(1) of the Act is replaced by the following:

    Marginal note:Annual report
    • 195. (1) The Minister of Public Safety and Emergency Preparedness shall, as soon as possible after the end of each year, prepare a report relating to

      • (a) authorizations for which that Minister and agents to be named in the report who were specially designated in writing by that Minister for the purposes of section 185 applied and to the interceptions made under those authorizations in the immediately preceding year;

      • (b) authorizations given under section 188 for which peace officers to be named in the report who were specially designated by that Minister for the purposes of that section applied and to the interceptions made under those authorizations in the immediately preceding year; and

      • (c) interceptions made under section 184.4 in the immediately preceding year if the interceptions relate to an offence for which proceedings may be commenced by the Attorney General of Canada.

  • (2) The portion of subsection 195(2) of the Act before paragraph (a) is replaced by the following:

    • Marginal note:Information respecting authorizations — sections 185 and 188

      (2) The report shall, in relation to the authorizations and interceptions referred to in paragraphs (1)(a) and (b), set out

  • (3) Section 195 of the Act is amended by adding the following after subsection (2):

    • Marginal note:Information respecting interceptions — section 184.4

      (2.1) The report shall, in relation to the interceptions referred to in paragraph (1)(c), set out

      • (a) the number of interceptions made;

      • (b) the number of parties to each intercepted private communication against whom proceedings were commenced in respect of the offence that the police officer sought to prevent in intercepting the private communication or in respect of any other offence that was detected as a result of the interception;

      • (c) the number of persons who were not parties to an intercepted private communication but whose commission or alleged commission of an offence became known to a police officer as a result of the interception of a private communication, and against whom proceedings were commenced in respect of the offence that the police officer sought to prevent in intercepting the private communication or in respect of any other offence that was detected as a result of the interception;

      • (d) the number of notifications given under section 196.1;

      • (e) the offences in respect of which interceptions were made and any other offences for which proceedings were commenced as a result of an interception, as well as the number of interceptions made with respect to each offence;

      • (f) a general description of the methods of interception used for each interception;

      • (g) the number of persons arrested whose identity became known to a police officer as a result of an interception;

      • (h) the number of criminal proceedings commenced in which private communications obtained by interception were adduced in evidence and the number of those proceedings that resulted in a conviction;

      • (i) the number of criminal investigations in which information obtained as a result of the interception of a private communication was used even though the private communication was not adduced in evidence in criminal proceedings commenced as a result of the investigations; and

      • (j) the duration of each interception and the aggregate duration of all the interceptions related to the investigation of the offence that the police officer sought to prevent in intercepting the private communication.

  • (4) The portion of subsection 195(3) of the Act before paragraph (a) is replaced by the following:

    • Marginal note:Other information

      (3) The report shall, in addition to the information referred to in subsections (2) and (2.1), set out

  • (5) Subsection 195(5) of the Act is replaced by the following:

    • Marginal note:Report by Attorneys General

      (5) The Attorney General of each province shall, as soon as possible after the end of each year, prepare and publish or otherwise make available to the public a report relating to

      • (a) authorizations for which the Attorney General and agents specially designated in writing by the Attorney General for the purposes of section 185 applied and to the interceptions made under those authorizations in the immediately preceding year;

      • (b) authorizations given under section 188 for which peace officers specially designated by the Attorney General for the purposes of that section applied and to the interceptions made under those authorizations in the immediately preceding year; and

      • (c) interceptions made under section 184.4 in the immediately preceding year, if the interceptions relate to an offence not referred to in paragraph (1)(c).

      The report must set out, with any modifications that the circumstances require, the information described in subsections (2) to (3).

 The Act is amended by adding the following after section 196:

Marginal note:Written notice — interception in accordance with section 184.4
  • 196.1 (1) Subject to subsections (3) and (5), the Attorney General of the province in which a police officer intercepts a private communication under section 184.4 or, if the interception relates to an offence for which proceedings may be commenced by the Attorney General of Canada, the Minister of Public Safety and Emergency Preparedness shall give notice in writing of the interception to any person who was the object of the interception within 90 days after the day on which it occurred.

  • Marginal note:Extension of period for notification

    (2) The running of the 90-day period or of any extension granted under subsection (3) or (5) is suspended until any application made by the Attorney General of the province or the Minister to a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 for an extension or a subsequent extension of the period has been heard and disposed of.

  • Marginal note:Where extension to be granted

    (3) The judge to whom an application under subsection (2) is made shall grant an extension or a subsequent extension of the 90-day period — each extension not to exceed three years — if the judge is of the opinion that the interests of justice warrant granting the application and is satisfied, on the basis of an affidavit submitted in support of the application, that one of the following investigations is continuing:

    • (a) the investigation of the offence to which the interception relates; or

    • (b) a subsequent investigation of an offence commenced as a result of information obtained from the investigation referred to in paragraph (a).

  • Marginal note:Application to be accompanied by affidavit

    (4) An application shall be accompanied by an affidavit deposing to

    • (a) the facts known or believed by the deponent and relied on to justify the belief that an extension should be granted; and

    • (b) the number of instances, if any, on which an application has, to the knowledge or belief of the deponent, been made under subsection (2) in relation to the particular interception and on which the application was withdrawn or the application was not granted, the date on which each application was made and the judge to whom each application was made.

  • Marginal note:Exception — criminal organization or terrorism offence

    (5) Despite subsection (3), the judge to whom an application under subsection (2) is made shall grant an extension or a subsequent extension of the 90-day period — each extension not to exceed three years — if the judge is of the opinion that the interests of justice warrant granting the application and is satisfied, on the basis of an affidavit submitted in support of the application, that the interception of the communication relates to an investigation of

    • (a) an offence under section 467.11, 467.12 or 467.13;

    • (b) an offence committed for the benefit of, at the direction of or in association with a criminal organization; or

    • (c) a terrorism offence.

COMING INTO FORCE

Marginal note:Six months after royal assent

 Section 5 comes into force six months after the day on which this Act receives royal assent.

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