Définition de l'interception des communications privées

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Definitions

"Private Communication"

Section 183 defines "private communication":

183 In this Part [Pt. VI – Atteintes à la vie privée (art. 183 à 196.1)],
...
"private communication" means any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it; (communication privée)
...
L.R. (1985), ch. C-46, art. 183; L.R. (1985), ch. 27 (1er suppl.), art. 7 et 23, ch. 1 (2e suppl.), art. 213, ch. 1 (4e suppl.), art. 13, ch. 29 (4e suppl.), art. 17, ch. 42 (4e suppl.), art. 1; 1991, ch. 28, art. 12; 1992, ch. 27, art. 90; 1993, ch. 7, art. 5, ch. 25, art. 94, ch. 40, art. 1, ch. 46, art. 4; 1995, ch. 39, art. 140; 1996, ch. 19, art. 66; 1997, ch. 18, art. 7, ch. 23, art. 3; 1998, ch. 34, art. 8; 1999, ch. 2, art. 47, ch. 5, art. 4; 2000, ch. 24, art. 43; 2001, ch. 32, art. 4, ch. 41, art. 5, 31 et 133; 2002, ch. 22, art. 409; 2004, ch. 15, art. 108; 2005, ch. 32, art. 10, ch. 43, art. 1; 2008, ch. 6, art. 15; 2009, ch. 2, art. 442, ch. 22, art. 4, ch. 28, art. 3; 2010, ch. 3, art. 1, ch. 14, art. 2; 2012, ch. 1, art. 24; 2013, ch. 8, art. 2, ch. 9, art. 14, ch. 13, art. 7; 2014, ch. 17, art. 2, ch. 20, art. 366(E), ch. 25, art. 11, ch. 31, art. 7, ch. 32, art. 59; 2015, ch. 20, art. 19; 2017, ch. 7, art. 56; 2018, ch. 12, art. 114, ch. 16, art. 210, ch. 26, art. 23, ch. 29, art. 15; 2019, ch. 13, art. 150; 2019, ch. 16, art. 122; 2019, ch. 25, art. 63.1; 2020, ch. 1, art. 36; 2021, ch. 24, art. 3; 2021, ch. 27, art. 1; 2022, ch. 10, art. 81; 2022, ch. 17, art. 5; 2023, ch. 14, art. 2; 2023, ch. 32, art. 13.

– CCC (CanLII), (Jus.)

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"Private"

A communication is private where the originator has a reasonable expectation that the communication would "not be intercepted by any person other than the person intended by the originator to receive it". The intention of who is to receive the communication includes those who the originator had knowledge would receive it but may not desire them to receive it.

Where it is reasonable to expect that the communication may be listened to or recorded, then it is not a private communication.

Communication requires some exchange of information between persons and not simply all information capturable by the interception. Consequently, sounds not intended to convey information does not constitute a communication.

"Communications"

According to s. 183, a "communication" can be either "oral communication" or "telecommunication".

The following has been found not to be a "private communication":

• Electronic signals captured by a digital number recorder (DNR)
• communication of a paging device.
• a prayer to God as God does not meet the legal definition of a person.
• a cassette sent through the mail
• prayers to God

"originator"

The "originator" refers to the person whose "remarks which the Crown seeks to adduce in evidence" and are protected under Part VI of the Code.

"Telecommunications"

Section 35 of the Interpretation Act defines "telecommunications" as: "means the emission, transmission or reception of signs, signals, writing, images, sounds or intelligence of any nature by any wire, cable, radio, optical or other electromagnetic system, or by any similar technical system"

This definition was found to include technology such as Dialed number recorders.

This term is also used in the offence of Child Luring (Offence), Agree or Arrange a Sexual Offence Against Child (Offence), and Telecommunication Offences (Offence).

Warrants Apply to Many Types of Communication

One application for authorization sufficient

184.6 For greater certainty, an application for an authorization under this Part [Pt. VI – Atteintes à la vie privée (art. 183 à 196.1)] may be made with respect to both private communications and radio-based telephone communications at the same time.
1993, c. 40, s. 4.

– CCC (CanLII), (Jus.)

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"Interception"

"Interception" means to "listen to, record or acquire a communication or acquire the substance, meaning or purport thereof;" (s. 183).

Identity of Intended Recipient

A communication that is directed to law enforcement under false assumption of identity is not usually an "intercept" where it is not "participant surveillance".

An online undercover police officer who impersonates a young person and communicates with the accused is not intercepting as there is no "surreptitious" recording of the conversation and no "interception" as between the accused and third party.

Telephone communications between the accused and the police who answers the phone at a drug house and assumes the identity of the homeowner are not covered by Part VI.

"Intercept" vs "Disclose"

The scheme of Part VI distinguishes between "interception" and "use or retention" of that communication, which is conceptually "different and distinct."

Timing of Capture

There is the suggestion that there does not need to be a direct temporal connection between the message seizure and the transmission of the message.

However, text messages saved within the network of a service provider can be otained by a production order as it is not an "intercept." It will generally be required where the message has not yet come into existence or have not yet been received by the recipient.

Devices Used to Intercept

The interception must be done by way of an "electromagnetic, acoustic, mechanical or other device" (s.183). Consequently, simply to use one's human senses without technological aids does not invoke Part VI.

Definitions

183 In this Part,
...
"electro-magnetic, acoustic, mechanical or other device" means any device or apparatus that is used or is capable of being used to intercept a private communication, but does not include a hearing aid used to correct subnormal hearing of the user to not better than normal hearing; (dispositif électromagnétique, acoustique, mécanique ou autre)
...
L.R. (1985), ch. C-46, art. 183; L.R. (1985), ch. 27 (1er suppl.), art. 7 et 23, ch. 1 (2e suppl.), art. 213, ch. 1 (4e suppl.), art. 13, ch. 29 (4e suppl.), art. 17, ch. 42 (4e suppl.), art. 1; 1991, ch. 28, art. 12; 1992, ch. 27, art. 90; 1993, ch. 7, art. 5, ch. 25, art. 94, ch. 40, art. 1, ch. 46, art. 4; 1995, ch. 39, art. 140; 1996, ch. 19, art. 66; 1997, ch. 18, art. 7, ch. 23, art. 3; 1998, ch. 34, art. 8; 1999, ch. 2, art. 47, ch. 5, art. 4; 2000, ch. 24, art. 43; 2001, ch. 32, art. 4, ch. 41, art. 5, 31 et 133; 2002, ch. 22, art. 409; 2004, ch. 15, art. 108; 2005, ch. 32, art. 10, ch. 43, art. 1; 2008, ch. 6, art. 15; 2009, ch. 2, art. 442, ch. 22, art. 4, ch. 28, art. 3; 2010, ch. 3, art. 1, ch. 14, art. 2; 2012, ch. 1, art. 24; 2013, ch. 8, art. 2, ch. 9, art. 14, ch. 13, art. 7; 2014, ch. 17, art. 2, ch. 20, art. 366(E), ch. 25, art. 11, ch. 31, art. 7, ch. 32, art. 59; 2015, ch. 20, art. 19; 2017, ch. 7, art. 56; 2018, ch. 12, art. 114, ch. 16, art. 210, ch. 26, art. 23, ch. 29, art. 15; 2019, ch. 13, art. 150; 2019, ch. 16, art. 122; 2019, ch. 25, art. 63.1; 2020, ch. 1, art. 36; 2021, ch. 24, art. 3; 2021, ch. 27, art. 1; 2022, ch. 10, art. 81; 2022, ch. 17, art. 5; 2023, ch. 14, art. 2; 2023, ch. 32, art. 13.

– CCC (CanLII), (Jus.)

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