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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 if they are not password protected. If the phone is password protected, a search warrant would have to be obtained.

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

Has the law kept up with modern surveillance technology?

Not entirely. Police have to seek court permission to use ‘tower dumps’, in which the court will issue a ‘production order’ to a service provider to compel it to turn over all records of cellular traffic at a particular tower over a certain period. In R. v. Rogers Communication Partnership, an Ontario Superior Court provided a set of guidelines for police to follow when seeking a production order for a tower dump.

Police have been using International Mobile Subscriber Identity (IMSI) devices – known to the public as StingRay devices – to collect information.  An IMSI device imitates a cell tower and tricks cell phones into attaching to it and disclosing phone log and location information to the IMSI device. Until recently, police did not even admit they had these devices, much less that they were using them.

Unlike wiretapping, which is monitored and which the police must track and report its use, there are few laws dealing with IMSIs or tower dumps. The police are not required to track and report upon their use. As of 2017, the federal government had no plans to consider legislating reporting requirements for their use or for other new surveillance methods.

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?

R. v. Rogers Communications Partnership

The new surveillance state