Criminal Code amended...Wiretap

March 18, 1999

Key Points

By virtue of an amendment to the definition of "offence" under section 183 of the Criminal Code, the Bureau is able to apply for judicial authorization to intercept private communications without consent for investigating suspected violations of:

• the new deceptive marketing practices portions of the telemarketing provisions found in subsection 52.1(3) of the Competition Act;
• the conspiracy provisions in relation to any matters referred to in paragraph 45(4)(a) to (d)⁽¹⁾ (price fixing or market sharing); and
• the bid-rigging provisions found in section 47.

This investigative tool, commonly referred to as wiretapping, will not be available with respect to legitimate situations involving strategic alliances, joint ventures or mergers, or for benchmarking or other types of information-sharing arrangements. Wiretap will not be used to investigate allegations of failure to disclose information required by the telemarketing provisions.

The Procedure

The application for authorization must be made in writing and signed by the Solicitor General or his agent. Therefore, if the Bureau wishes to obtain judicial authority to intercept private communications without consent, it will first have to convince the Solicitor General that the application should be made.

Pursuant to section 186 of the Criminal Code, judicial authorization to intercept private communications without consent requires the court to be satisfied that:

• it would be in the best interest of the administration of justice to do so,
• other investigative procedures have been tried and have failed, or
• 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.

The Royal Canadian Mounted Police (RCMP) who have particular expertise in using these techniques will conduct the interception of private communications.

Background

The Competition Bureau already has powerful investigative tools, which also require prior judicial authorization. These include the power to search premises and seize evidence, under section 15 of the Competition Act, and the power to compel any person to submit to examination under oath or provide records, under section 11 of the Act. In addition, under section 184.2 of the Criminal Code, where the Bureau has reasonable grounds to believe that an offence against the Competition Act had been or is about to be committed, it may apply for judicial authorization to intercept private communication when one of the participants consents to the interception. While these are very useful investigative tools, they are not always enough.

Deceptive telemarketing is a growing and significant problem. Many deceptive or fraudulent telemarketers have a history of setting up operations for extremely short periods of time and leaving behind little in the way of incriminating evidence. They do not typically use their real names during telephone conversations with victims. The Bureau's traditional investigative tools are not adequate to enable prosecution of specific individuals who make a profession of this type of conduct. The ability to intercept private communications without consent will allow the collection of the best possible evidence in the most serious deceptive telemarketing cases. It will create the opportunity to collect evidence which could be tracked back to specific individuals and it may provide evidence of calls between managers of the boiler rooms and the individuals financing or directing the operations.

Conspiracies to fix prices or share markets and bid-rigging are serious crimes that are inherently collusive and secretive in nature. Experience has shown that those involved in criminal offences of this nature often engage in elaborate schemes or deceptions to eliminate evidence that they have agreed to restrict competition. Since these agreements typically require private meetings or communications by telephone, interception of private communications without consent will in some cases be an important additional means of obtaining evidence of the offence.

Offenders are also becoming increasingly sophisticated in terms of their reliance on telecommunication and computer technologies. An effective tool such as wiretapping without consent will make it easier to gather evidence more effectively in relation to these serious offences.

Guidelines

The Competition Bureau has issued Draft Guidelines entitled "Interception of Private Communications" which provide practical guidance on the strict limitations of use of wiretapping.

There will be broad consultation on these guidelines before they are finalised. Anyone interested in obtaining a copy of the guidelines or providing comments, may do so by calling the Bureau's Information Centre at: 1-800-348-5338 or 819-997-4282.

To report deceptive telemarketing and other crimes under the Competition Act, call:
1-800-348-5358

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⁽¹⁾ The matters referred to in paragraph 45(4)(a) to (d) are: (a) prices; (b) quantity or quality of production; (c) markets or customers; or (d) channels or methods of distribution.