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Police surveillance: when is it legal?

In Canada, police can surveil people but there are stringent rules how this may be done.

What is the law on police surveillance?

The law has to balance a reasonable expectation of privacy with the best interests of the administration of justice. If a crime has been committed and it is necessary for police to do surveillance to obtain evidence, the court may grant the necessary warrant.

The criminal code gives a court authority to grant a warrant to have someone surveilled if there are reasonable grounds to believe than an offence has been committed and that information obtained from surveillance would aid in solving the crime.

The court will look at these factors when deciding whether to allow for a warrant:

  • Whether it would be in the best interests of the administration of justice to do so; and
  • Whether other investigative procedures have been tried and have failed or are unlikely to succeed or that the situation is urgent. The second requirement does not apply when the offence is related to a criminal organization.

The authorization must contain such terms and conditions as the judge considers advisable in the public interest and the authorization is not valid for a term exceeding 60 days.

The requirements for video surveillance are the same as for intercepting private communications.

In what ways can the police surveil you?

The criminal code states: “A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do anything described in the warrant.”

Another section in the code specifically speaks about video surveillance and that an officer may surveil through video as long as they have a warrant and the judge has set out terms and conditions respecting the surveiled person’s privacy. Yet another section of the code talks about consent to wiretap a person with a court order.

Again though, the police cannot surveil without legal justification.

For example, when it comes to cell phones, the police can search them as long as they are not password protected. If the phone is password protected, a search warrant would have to be obtained.

Are there any devices that are not allowed to be used by police?

StingRay devices (used to track cell phones) are not currently authorized for use by police.

The Supreme Court also ruled a few years ago that in order for police to be allowed to get or surveil text messages from a suspect’s cell phone provider, they would have to get a special wiretap warrant.

If you have issues with police surveillance you may want to consult a lawyer.

Read more:

Criminal Code of Canada — Warrants

What powers do police have for online surveillance?