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R. v. Tse, 2012 SCC 16 (CanLII)


This appeal concerns the constitutionality of the emergency wiretap provision, s. 184.4 of the Criminal Code.  In this case, the police used s. 184.4 to carry out unauthorized warrantless interceptions of private communications when the daughter of an alleged kidnapping victim began receiving calls from her father stating that he was being held for ransom.  Approximately 24 hours later, the police obtained a judicial authorization for continued interceptions, pursuant to s. 186 of the Code.  The trial judge found that s. 184.4 contravened the right to be free from unreasonable search or seizure under s. 8 of the Charter and that it was not a reasonable limit under s. 1.  The Crown has appealed the declaration of unconstitutionality directly to this Court.

                   Held:  The appeal should be dismissed.

                   Section 184.4 permits a peace officer to intercept certain private communications, without prior judicial authorization, if the officer believes on reasonable grounds that the interception is immediately necessary to prevent an unlawful act that would cause serious harm, provided judicial authorization could not be obtained with reasonable diligence.  In principle, Parliament may craft such a narrow emergency wiretap authority for exigent circumstances.  The more difficult question is whether the particular power enacted in s. 184.4 strikes a reasonable balance between an individual’s right to be free from unreasonable searches or seizures and society’s interest in preventing serious harm.  To the extent that the power to intercept private communications without judicial authorization is available only in exigent circumstances to prevent serious harm, this section strikes an appropriate balance.  However, s. 184.4 violates s. 8 of the Charter as it does not provide a mechanism for oversight, and more particularly, notice to persons whose private communications have been intercepted.  This breach cannot be saved under s. 1 of the Charter.

                   The language of s. 184.4 is sufficiently flexible to provide for different urgent circumstances that may arise, and it is far from vague when properly construed.  While it is the only wiretapping power that does not require either the consent of one of the parties to the communication or judicial pre-authorization, a number of conditions and constraints are embedded in the language of s. 184.4 that ensure that the power to intercept private communications without judicial authorization is available only in exigent circumstances to prevent serious harm.  Police officers may only use this authority if they believe “on reasonable grounds” that the “urgency of the situation” is such that an authorization could not, with “reasonable diligence”, “be obtained under any other provision of this Part”.  Each of these requirements provides a legal restriction on the use of s. 184.4.  The provision imports an objective standard — credibly based probability for each of the requirements.  The conditions incorporate implicit and strict temporal limitations and the onus rests with the Crown to show, on balance, that the conditions have been met.  As time goes by it may be more difficult to satisfy the requirement that an authorization could not have been obtained with reasonable diligence, the situation is urgent or it is immediately necessary to prevent serious harm.

                   Section 188 provides a streamlined process for obtaining a temporary authorization in circumstances of urgency that can be accessed expeditiously with a view to limiting within reason, the length of time that unauthorized interceptions under s. 184.4 may lawfully be continued.  It permits a specially designated peace officer to seek a 36-hour wiretap authorization from a specially designated judge where the urgency of the situation requires the interception of private communications to commence before an authorization could “with reasonable diligence” be obtained under s. 186 of the Code.

                   Section 188 should be construed in a manner that promotes an efficient and expeditious result and effective judicial oversight.  Section 188 applications, which are designed to provide short-term judicial authorization in urgent circumstances may be conducted orally as this would expedite the process and further Parliament’s objective in enacting the provision.  Even though applications may be conducted orally and are less cumbersome and labour-intensive than written applications, they still take time, so the need for unauthorized emergency interceptions under s. 184.4 remains.

                    Section 184.4 recognizes that on occasion, the privacy interests of some may have to yield temporarily for the greater good of society — here, the protection of lives and property from harm that is both serious and imminent.  The stringent conditions Parliament has imposed to ensure that the provision is only used in exigent circumstances, effect an appropriate balance between an individual’s reasonable expectation of privacy and society’s interest in preventing serious harm.  To that extent, s. 184.4 passes constitutional muster.  In its present form however, s. 184.4 contains no accountability measures to permit oversight of the police use of the power.  It does not require that “after the fact” notice be given to persons whose private communications have been intercepted.  Unless a criminal prosecution results, the targets of the wiretapping may never learn of the interceptions and will be unable to challenge police use of this power.  There is no other measure in the Code to ensure specific oversight of the use of s. 184.4.  In its present form, the provision fails to meet the minimum constitutional standards of s. 8 of the Charter.  An accountability mechanism is necessary to protect the important privacy interests at stake and a notice provision would adequately meet that need, although Parliament may choose an alternative measure for providing accountability.  The lack of notice requirement or some other satisfactory substitute renders s. 184.4 constitutionally infirm.  In the absence of a proper record, the issue of whether the use of the section by peace officers, other than police officers, renders this section overbroad is not addressed.

                   The objective of preventing serious harm to persons or property in exigent circumstances is pressing and substantial and rationally connected to the power provided under s. 184.4.  It is at the proportionality analysis of R. v. Oakes that the provision fails.  The obligation to give notice to intercepted parties would not impact in any way the ability of the police to act in emergencies.  It would, however, enhance the ability of targeted individuals to identify and challenge invasions to their privacy and seek meaningful remedies.  Section 184.4 of the Code is constitutionally invalid legislation.  This declaration of invalidity is suspended for 12 months to allow Parliament to redraft a constitutionally compliant provision.

Jim O'Neil, LL.B.

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