1. Pretext Phone Calls Legal in Canada!!

2. Police-guided pretext phone calls do not violate Charter s. 8 if prior: -One party consent -Judicial Authorization Recorded evidence gathered is then prima facie admissable Charter S. 8 : Freedom from unreasonable search/seizure by the state

3. Impact of Charter s.8 on pretext phone calls Prior to Charter, police recording with one party consent and no judicial authorization was acceptable Post-Charter, Supreme Court of Canada in Duarte ruled that police use of one party consent interceptions without judicial authorization violate s. 8

4. R. v. Duarte: a consent interception by agents of the state, although not unlawful under s. 184, was still a violation of s. 8 of the Charter, unless there was prior judicial authorization. In Duarte, the court held that for s. 8 purposes, there was no reason to distinguish between 3rd party surveillance where neither party consents and surveillance where one of the parties is consenting. 1993 Criminal Code amendments, sections 184.1, 184.2, and 184.3, deal with the implications of that ruling by distinguishing one party consent interceptions from no- consent electronic surveillance. These sections make the requirements for obtaining an authorization for participant surveillance much less onerous than obtaining a 3rd party authorization under sections 185 and 186... so... DON’T NEED TO SHOW [a] that it would be in the best interests of the administration of justice to do so [b] that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures. 1993 Criminal Code changes address Duarte

5. DO NEED TO SHOW: [a] there are reasonable grounds to believe that an offence has been or will be committed; [b] either the originator of the private communication or the person intended by the originator to receive it has consented to the interception; and [c] there are reasonable grounds to believe that information concerning the offence referred to in paragraph [a] will be obtained through the interception sought. THAT’S ALL!

6. IN THE MATTER of a Consent pursuant to the provisions of Sections 184.2 of the Criminal Code I,, occupation the undersigned of the City of, in the Province of, hereby expressly consent to the interception, by means of an electromagnetic, acoustic, mechanical or other device, of all private oral communications and telecommunications, and all radio-based telephone communications, to which I am a party, either as an originator or an intended recipient, by any peace officer and any other persons required to assist them in the interception of the aforementioned communications. I further consent to the admission as evidence, in any criminal proceedings hereinafter taken, of any such intercepted communications. I give this consent voluntarily and understand that I may withdraw it at any time by notifying {insert handlers or lead investigator of affiant (someone consenter can readily contact)} of the Royal Canadian Mounted Police. Further, I do hereby withdraw this consent as of the expiration of any judicial authorization under s. 184.2 of the Criminal Code obtained in connection to this consent. SIGNED at the City of, in the Province of this day of, 2007. __________________________________ Consenting Person ___________________________________ Witness ___________________________________ Witness

7. Regarding Consent Victim/survivor safety and readiness: A pretext call can amount to a second victimization if new safety risks are created involving the suspect, or the victim cannot handle the emotional consequences a pretext call can create for her. If the victim is willing to make a pretext call, it is advisable to have a counselor or victim advocate available to support the victim immediately after the call. DO assess safety risks to the victim/survivor from the suspect or associates. Victim/survivor’s fear is a reliable indicator of danger. Do NOT pressure the victim/survivor in any way to use this method. Do NOT base your view of victim/survivor credibility on a decision not to participate.

8. Form of application for Judicial Authorization Good for up to 60 days Telewarrant available

9. Show by attached affidavit: -there are reasonable grounds to believe that an offence has been or will be committed -the particulars of the offence -the name of the person who has consented to the interception Judge must be satisfied there are reasonable grounds to believe that information concerning the offence will be obtained through the interception sought – not a high threshold Particulars of complainant’s statement should suffice; if others interviewed, add.

10. If there is no police involvement, One party consent interceptions are lawful and prima facie admissable Recording will not trigger Charter protections No judicial authorization required Even if made expressly with the intention to give to police R. v. Coburn (2003) This is important to remember as it becomes easier and easier for everyone to make audio and video recordings – you may find victim/survivors making these on their own –

11. When does the complainant become an agent of the police? From SCC in Broyles: would the exchange between the accused and the [complainant] have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents? Generally, if police give instructions specific to the case being investigated Low threshold: therefore investigator should always get judicial authorization if a pretext phone call is planned