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Supreme Court Strikes Down Wiretap Provision

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Today the Supreme Court of Canada declared certain wiretap provisions of the Criminal Code (Canada) to be constitutionally invalid legislation but suspended the declaration of invalidity for 12 months to provide Parliament to address the deficiencies in the legislation.

The Supreme Court of Canada has previously stated that covert interceptions of private communications constitute serious intrusions into the privacy rights of those affected.  A legitimate exception is where there is a risk of serious and immediate harm.  Section 184.4 of the Criminal Code is an emergency wiretap provision.  It permits the police (among others) to intercept private communications without judicial authorization in certain circumstances.  In order to use this wiretap provision, the police must believe on reasonable grounds that (A) the interception is immediately necessary to prevent an unlawful act, (B) the unlawful act would cause serious harm to persons or property, (C) one of the persons whose communication is intercepted is the person who will commit the act (perpetrator or aiders and abetters) or is the potential victim, and (D) judicial authorization cannot be obtained with reasonable diligence.

The court concluded that section 184.4 did not strike a reasonable balance between an individual’s right to be free from unreasonable search and seizure under section 8 of the Charter of Rights and Freedoms and society’s interest in preventing serious harm.  In particular, the warrantless wiretap provision did not provide sufficient mechanisms to ensure accountability.  For example, there was no ”after the fact” notice to persons whose private communications were intercepted. 

On the issue of “after the fact” notice, the Supreme Court stated it agreed with the following submissions of the Ontario Criminal Lawyers’ Association:

. . notice is neither irrelevant to s. 8 protection, nor is it a “weak” way of protecting s. 8 rights, simply because it occurs after the invasion of privacy. A requirement of after-the-fact notice casts a constitutionally important light back on the statutorily authorised intrusion. The right to privacy implies not just freedom from unreasonable search and seizure, but also the ability to identify and challenge such invasions, and to seek a meaningful remedy. Notice would enhance all these interests. In the case of a secret warrantless wiretap, notice to intercepted person stands almost alone as an external safeguard.