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What the Criminal Code says about interception of communications

So, the big kerfuffle today, as you might have noticed, is the fact a Conservative staffer accidentally got invited to listen in on a phone call to an NDP strategy session. Rather then write back and say the email was sent to them by mistake, that staffer not only listened in, but taped the conversation.  That staffer then apparently sent it to Conservative TV (otherwise known as CTV), where Bob Fife did his best to turn it into the most scandalous event ever in Canadian political history (but that’s another story).

After promptly denying there was anything unbecoming of them actually talking strategy with to  the BQ***, the NDP  then hinted they may seek criminal charges against this yet to be named Conservative staffer. But what does the Criminal Code say about this? The relevant section is here, and I’ve pasted the section below for you to play judge and to come to your own conclusions if the Conservative staffer and/or his party (Conservative spokesperson Dimitri Soudras was virtually bragging about taping this conversation) are in trouble or not.

(*** Thomas Mulclair said in his press conference today that formal strategy talks began last week)

Interception of Communications

Interception

184. (1) Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Saving provision
(2) Subsection (1) does not apply to

(a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it;

(b) a person who intercepts a private communication in accordance with an authorization or pursuant to section 184.4 or any person who in good faith aids in any way another person who the aiding person believes on reasonable grounds is acting with an authorization or pursuant to section 184.4;

(c) a person engaged in providing a telephone, telegraph or other communication service to the public who intercepts a private communication,

(i) if the interception is necessary for the purpose of providing the service,

(ii) in the course of service observing or random monitoring necessary for the purpose of mechanical or service quality control checks, or

(iii) if the interception is necessary to protect the person’s rights or property directly related to providing the service;

(d) an officer or servant of Her Majesty in right of Canada who engages in radio frequency spectrum management, in respect of a private communication intercepted by that officer or servant for the purpose of identifying, isolating or preventing an unauthorized or interfering use of a frequency or of a transmission; or

(e) a person, or any person acting on their behalf, in possession or control of a computer system, as defined in subsection 342.1(2), who intercepts a private communication originating from, directed to or transmitting through that computer system, if the interception is reasonably necessary for

(i) managing the quality of service of the computer system as it relates to performance factors such as the responsiveness and capacity of the system as well as the integrity and availability of the system and data, or

(ii) protecting the computer system against any act that would be an offence under subsection 342.1(1) or 430(1.1).

Use or retention
(3) A private communication intercepted by a person referred to in paragraph (2)(e) can be used or retained only if

(a) it is essential to identify, isolate or prevent harm to the computer system; or

(b) it is to be disclosed in circumstances referred to in subsection 193(2).

12 comments to What the Criminal Code says about interception of communications

  • @Roll Tide

    I’m not predisposed to believe anything John Ivison and the National Post are claiming. Andrew Steele of the Globe thinks Iggy is on board with this… so I guess we’ll see who’s right.

  • Roll Tide

    Did it occur to you that maybe it was no mistake that the Conservative was invited?

    What we have is a Bloc-NDP coalition who were predisposed to oppose the economic statement. The Liberals (minus Ignatieff and maybe more)come on board after the Conservatives threatened to scale back their government sugar daddy.
    Hillarious times, its no wonder Ignatieff wants no part of it.

  • Hunt this interloper down like a dog.

    Mulclair was asked in his press conference today if they knew who the interloper was. He said they did, but declined to name him or her at this time.

  • Arguably, the Conbs’ best case is that there was an invitation to join the call.

    Was there consent to tape the call and then release it to the public?

    Not bloody likely. 184 (1). No saving provision applies. Hunt this interloper down like a dog. And then form the next government. 🙂

  • Matt

    Any chance the email for Linda Duncan went to John Duncan instead? That was the only last name I could find shared by a Dipper and Con.

  • Personally, I think this story has got to be dropped as quickly as possible. It was a Rovian ploy to distract the media and stall the momentum the concept of a coalition government is getting.

    Harper is better equipped at handling accusations of scandal than those of ineptness. He’s been like teflon on every other scandal raised because he recognizes that a steady non-reaction is better politics than an over-reaction. Chretien is also gifted with the same reflexes.

    An angry Jack Layton or heaven forbid Pat Martin (Mr. Ethics MP) is the worst thing that could happen when the idea of a coalition government is picking up momentum.

    Right now the Winnipeg Free Press (fairly right wing) is reporting 69% in favour of a coalition government. It’s been on the rise all day.

    Having the media spend the week focused on whether the taping was illegal, unethical or inept (on the part of the NDP) would be a shot in the arm for Harper. It’s bait and the whole news item should be buried as fast as possible in my view.

  • catherine

    How does one accidently send a CPCer an email about an NDP caucus meeting? Do you trust Layton? I hope the Liberals know what they are doing.

  • What kills me is that the Cons are trying to paint talks – even strategy talks – between two nearly identical (except for the who separation thing) parties on issues of mutual interest is somehow “nefarious”.

    Of course, I expect Jack Layton to pop up tomorrow and say “Of course we have had long standing strategy talks with the BQ…pretty much since September 2004 when they were initiated by Stephen Harper.”

    I said it before Layton did (check out James Bow’s latest for proof):

    Getting the BQ to help a Liberal NDP coalition can help show Quebecers that Federalism CAN work. It would be a boost. The BQ would merge into a Social Credit type regional party…

  • If it ever gets to court I expect the legality will hinge on whether an email sent to the wrong address constitues an invitation and thereby implies consent.
    But unethical? No doubt.
    Either way, it will be interesting to follow what happens with it.

  • Kephalos

    Thanks for the post.

    So, being covert nosy is not agaist the law, but unlawfully recording a private conversation is “guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.”

  • @deBeauxOs

    The NDP are officially saying that the person in question got an email that was not meant for them.

  • … “the fact a Conservative staffer accidentally got invited to listen in on a phone call to an NDP strategy session. Rather then write back and say the email was sent to them by mistake, that staffer not only listened in, but taped the conversation”

    In view of the Cons well-known penchant for prevarication, my opinion is that they invented this cover story. Stevie and his Harpocrites not going to admit they’re keeping the Opposition under surveillance, are they?

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