Criminal Code of Canada - section 191(2) - Exemptions

section 191(2)

INTRODUCTION AND BRIEF DESCRIPTION

Section 191(2) outlines exceptions to the prohibition on possession of interception devices or components, including for police officers, authorized interceptors, government officials, and licensed individuals.

SECTION WORDING

191(2) Subsection (1) does not apply to (a) a police officer in possession of a device or component described in subsection (1) in the course of his employment; (b) a person in possession of such a device or component for the purpose of using it in an interception made or to be made in accordance with an authorization; (b.1) a person in possession of such a device or component under the direction of a police officer in order to assist that officer in the course of his duties as a police officer; (c) an officer or a servant of Her Majesty in right of Canada or a member of the Canadian Forces in possession of such a device or component in the course of his duties as such an officer, servant or member, as the case may be; and (d) any other person in possession of such a device or component under the authority of a licence issued by the Minister of Public Safety and Emergency Preparedness.

EXPLANATION

Section 191(2) of the Criminal Code of Canada provides exemptions to the offence of possession of interception device or component. Subsection (1) criminalizes the possession of any device or component primarily designed to decrypt or intercept private communications without the consent of the parties involved, except for situations that fall under the exemptions in subsection (2). Police officers are explicitly allowed to possess such devices or components in the course of their duties, as long as they are not using them for any unauthorized interception. Similarly, individuals can legally possess such devices if they have proper authorization under an interception order or are assisting police officers in their duties. Additionally, any officer or servant of Her Majesty in right of Canada, or any member of the Canadian Forces, is also allowed to possess such a device or component if it is required for their duties. The Minister of Public Safety and Emergency Preparedness can issue a license to any other person who needs to possess such a device or component for a specified purpose. This license provides immunity against prosecution under subsection (1). The exemptions provided in subsection (2) ensure that legitimate interception activities can continue without falling afoul of the general prohibition on interception devices and components. However, it should be noted that any unauthorized interception, whether by a police officer or anyone else, is a criminal offence under Canadian law, subject to penalties of imprisonment and fines.

COMMENTARY

Section 191(2) of the Criminal Code of Canada provides exceptions to the offense of possessing interception devices or components. Subsection 191(1) makes it an offense for a person to possess any interception device or component without lawful authority. However, subsection 191(2) provides for exemptions to this offense under certain circumstances. These exemptions include police officers in the course of their employment, individuals in possession of such devices for the purpose of using it in an authorized interception, individuals in possession under the direction of a police officer to assist in their duties, officers or servants of the Crown in the course of their duties, and any other person with a license issued by the Minister of Public Safety and Emergency Preparedness. The use of interception devices and technologies is highly regulated in Canada due to concerns over privacy, civil liberties, and the improper collection of data. It is essential that law enforcement agencies and government officials adhere to strict protocols and authorization procedures to protect the rights of Canadian citizens. The exemptions provided by Section 191(2) of the Criminal Code recognize the specialized needs of law enforcement and other officials to use interception devices in specific instances while ensuring that appropriate safeguards are in place to prevent potential abuses. One of the main exemptions under Section 191(2) is the use of interception devices by police officers in the course of their employment. Law enforcement agencies play a critical role in protecting public safety, maintaining order, and upholding the rule of law in Canada. They rely on interception devices to gather evidence, monitor criminal activity, and protect vulnerable individuals. The exemption for police officers recognizes their need for access to these technologies while limiting the potential for indiscriminate use or misuse. Similarly, individuals in possession of interception devices for the purpose of an authorized interception must adhere to strict protocols set out in the Criminal Code, as well as obtain appropriate authorizations and permissions from the courts or other government authorities. This exemption acknowledges that in certain circumstances, it may be necessary to intercept communications to gather critical evidence and protect public safety. However, this exemption also recognizes that individuals should not engage in unauthorized interceptions without strict oversight and penalties for misuse. Another exemption under Section 191(2) relates to the possession of interception devices by officers or servants of the Crown or members of the Canadian Forces. These individuals may require access to interception devices in the course of their duties, and the exemption ensures that they may possess such devices without violating the Criminal Code. However, this exemption must be subject to stringent policies and guidelines to ensure that the government does not improperly monitor private communications or violate the privacy rights of Canadians. Finally, the exemption for individuals with a license issued by the Minister of Public Safety and Emergency Preparedness serves to ensure that only individuals with an appropriate need can possess interception devices. This license requirement helps to prevent the exploitation of these technologies and provides a mechanism for government oversight and scrutiny. In summary, Section 191(2) of the Criminal Code of Canada provides important exemptions to the offense of possessing interception devices or components. These exemptions recognize the need of law enforcement agencies and other officials to have access to these technologies while also providing important safeguards and oversight mechanisms to protect the privacy rights of Canadians. These exemptions must be subject to rigorous policies and guidelines to ensure that the proper balance is struck between the needs of law enforcement and the protection of privacy rights.

STRATEGY

Section 191(2) of the Criminal Code of Canada provides several exemptions to the general prohibition on possession of interception devices or components. While these exemptions may be useful in certain circumstances, they also raise strategic considerations for individuals or organizations that seek to use interception devices for legitimate purposes. One strategic consideration is to understand the scope of the exemptions and their limitations. For instance, the exemption for police officers only applies when they possess interception devices in the course of their employment, which means that individuals who are not police officers would not be able to rely on this exemption. Similarly, the exemption for persons in possession of such devices or components for the purpose of using them in accordance with an authorization requires that the interception be authorized by law, such as a warrant issued by a judge. Thus, individuals would need to obtain proper legal authority before using interception devices in order to rely on this exemption. Another strategic consideration is to assess the risks associated with the use of interception devices and components. Even if an individual or organization is able to rely on one of the exemptions under section 191(2), there may still be legal or reputational risks associated with the use of such devices. For instance, interception of private communications without proper authorization or consent may violate privacy laws and result in civil or criminal liability. Similarly, the misuse or mishandling of interception devices may damage the reputation of an individual or organization and lead to negative consequences such as loss of trust or business. To mitigate these risks and ensure compliance with the law, individuals or organizations may employ a range of strategies such as: - Conducting a legal analysis of the relevant statutes and regulations that govern interception of communications, including the Criminal Code of Canada, the Canadian Charter of Rights and Freedoms, and privacy laws. - Ensuring that interception devices are used only for legitimate purposes and with proper authorization, such as a warrant or consent of the parties involved. - Maintaining proper records and documentation of the use of interception devices, including the date, time, and purpose of the interception. - Providing training and guidance to employees or agents who may use interception devices to ensure that they understand their legal obligations and responsibilities. - Monitoring and auditing the use of interception devices to detect and prevent misuse or abuse. - Engaging with legal counsel or privacy experts to ensure compliance with the law and best practices in the use of interception devices. Overall, while the exemptions under section 191(2) may provide some relief for individuals or organizations seeking to use interception devices for legitimate purposes, they also require careful consideration and management of legal and reputational risks. Employing appropriate strategies can help to ensure compliance with the law and mitigate potential negative consequences.