WIRETAPPING WITHOUT A WARRANT, IS IT LEGAL? | TORONTO CRIMINAL DEFENCE

In an era where so much of the intimate details of our private lives are contained within our cellular phones, any secret monitoring by the government would be an extreme violation of our privacy. To ensure that our privacy is protected against surreptitious monitoring by the police the federal government requires that a judge authorize a wiretap warrant before any cellular phones or emails can be intercepted.

The government and the courts have long realized that an individual’s privacy is something we value as a society and that needs to be protected by the law. Despite this, there are rare circumstances, which will be explained below, when our private communications can be intercepted by the police without first obtaining judicial authorization.

Recently some police services, including both the Toronto Police and the RCMP, have been employing covert intercept technology without first obtaining judicial authorization, namely both police services have admitted to using  Stingrays to capture private communications.  The Stingray works by tricking nearby cellular phones into believing that it is a cellular phone tower. This causes all the nearby cellular phones to transmit all its outgoing data to the Stingray. Police are then able to learn which cellular phones are in the area, if they are stationary or moving, and with whom they are communicating with. This is currently being done without a warrant and arguably outside the limits of the law.

Ensuring that police have properly obtained the required legal warrants to intercept private communications is an important role of every Toronto Criminal Defence Lawyer defending clients caught on wiretaps. Defence counsel at trial may choose to challenge the validity of the wiretap warrant and request that the trial judge exclude some or all of the intercepts. For wiretaps to be admissible, they must have been authorized by a valid warrant, or they must fall within the very rare exceptions that allow interception of private communications without a warrant.

HOW POLICE GET WIRETAPS

Police can gain a tremendous amount of information from intercepting cellular phone communications for purposes of furthering their criminal investigations. To ensure an individual’s privacy rights are respected the Canadian Criminal Code imposes strict rules for the police to follow when seeking warrants to intercept private communications. A wiretap warrant must be authorized under section 185 and 186 of the Criminal Code. Every application by the police for a wiretap warrant must:

• Be made in writing to a judge of a superior court of criminal jurisdiction
• Have a sworn affidavit from a police officer detailing the investigation and the suspected criminal offences
• What type of private communication police would like to intercept, such as: email, cellular phone calls, pay phones, text message, etc.
• Details of the people whose communications they wish to intercept
• When they would like the wiretap and for how long
• The investigative procedures they have already used and why a wiretap is required

These strict regulations are designed to protect the privacy of individuals and ensure that sufficient grounds exist before wiretap warrants are issued.  Despite the strict requirements to obtain a wiretap warrant it appears that Canadian judges in 2011 authorized over 6000 wiretaps.

WHAT A WIRETAP INCLUDES

When authorized to intercept communications, police can then begin recording and listening to all phone calls made and received on a particular phone line. Police usually record all calls and selectively ‘live’ monitor phone lines as their investigation may require. Police can also view all incoming and outgoing text messages and emails if the warrant permits. In addition, depending on the cellular phone, police can also monitor the phone’s GPS location.

WHEN DO POLICE NOT NEED A WARRANT FOR A WIRETAP?

A warrant to intercept private communications is always required when police want to listen to a person’s phone calls. However, there are limited circumstances when police do not require a warrant:

• To Prevent Bodily Harm, or
• Emergency Circumstances

In these rare situations, when police are trying to prevent bodily harm or in cases of emergency, the urgency of the matter takes precedence over the time-consuming process of applying for judicial authorization. For these wiretaps to be valid, police must have a genuine and reasonable belief that a judge would have granted authorization in the circumstances.

Interception to Prevent Bodily Harm

Police can request a telephone service provider to intercept phone calls without a warrant if they have a good-faith belief that it will prevent injury or bodily harm. This type of interception usually requires that one of the parties’ consents to the interception. This is typically used in cases of kidnappings or in urgent undercover investigations.

There are three requirements to obtain an interception to prevent bodily harm:

• At least one of the parties to the interception gives consent.
• The interceptor has reasonable belief that there is a risk of bodily harm.
• The intended purpose of the interception is to prevent bodily harm.

These interceptions are not admissible in court unless actual, attempted, or threatened bodily harm is alleged. If no relevant communications are intercepted, the recordings should be destroyed as soon as possible.

Emergency Wiretaps

These wiretaps are only permitted in exceptional circumstances where the urgent and immediate interception is required. These situations rely on a police officer having reasonable grounds to believe that immediate interception will prevent imminent harm.

An emergency wiretap must meet all of these three requirements:

• Authorization could not be obtained with reasonable diligence, due to the urgency of the situation.
• Immediate interception is necessary to prevent an offence that would otherwise cause serious harm to any person or property.
• One of the parties involved in the intercepted communications is the person(s) who would commit the offence that could cause the harm or is the intended victim.

CRIMINAL DEFENCE LAWYER FOR WIRETAP CASES

If you are facing criminal charges in Toronto involving evidence from wiretaps contact William Jaksa today. He is a Toronto criminal defence lawyer with vast experience in handling cases involving the interception of private communications.