Can emergency warrantless wiretapping provisions strike an appropriate constitutional balance?

R v Tse [2012] SCC 16 (13 April 2012)

Summary

The Supreme Court of Canada has affirmed the importance of the right to privacy, ruling unanimously that section 184.4 of the Criminal Code R.S.C 1985, which permits emergency wiretapping without a warrant, is unconstitutional. The court weighed the rights entrenched in the Canadian Charter of Rights and Freedoms against society's interest in preventing serious harm and declared section 184.4 to be constitutionally invalid. The declaration was suspended for a period of 12 months to provide Parliament an opportunity to redraft the provision in a way that strikes an appropriate constitutional balance.

Facts

When the daughter of an alleged kidnapping victim began receiving calls from her father stating that he was being held for ransom, the police used section 184.4 to carry out an unauthorised interception of these private communications. Approximately 24 hours later, they obtained a judicial authorisation for continued interceptions pursuant to section 186 of the Criminal Code. Section 184.4 permits a peace officer to intercept certain private communications without prior judicial authorisation in circumstances where “the officer believes on reasonable grounds that the interception is immediately necessary to prevent an unlawful act that would cause serious harm, provided judicial authorisation could not be obtained with reasonable diligence”.

At trial, Judge Davies found that section 184.4 contravened the right to be free from unreasonable search or seizure under section 8 of the Canadian Charter, “due to a total absence of the constitutional safeguards”. His Honour also found that it was not a reasonable limit under section 1 of the Canadian Charter. The Crown appealed the decision.

Decision

The Supreme Court dismissed the appeal and unanimously declared section 184.4 to be constitutionally invalid. Justices Moldaver and Karakatsanis provide the Court’s judgment. Their Honours considered whether section 184.4 contravenes sections 8 and 1 of the Canadian Charter in turn.

Section 8 of the Canadian Charter

Section 8 provides that “everyone has the right to be secure against unreasonable search or seizure”. The key consideration is whether an appropriate balance has been struck between an individual’s right to be secure against unreasonable search or seizure and society’s interest in preventing serious harm. To determine whether section 184.4 meets the minimum constitutional standards, their Honours undertook a detailed analysis of the language of the provision to determine whether it is too vague and overbroad. They observed that section 184.4 is designed to ensure unauthorised wiretapping is available in rare and genuine exigent circumstances to prevent serious harm. It contains a number of stringent legislative conditions, objective standards and strict temporal limitations. Their Honours considered that the provision strikes an appropriate constitutional balance. However, in its present form, section 184.4 contains no accountability measures. Their Honours noted that an accountability mechanism is necessary to protect the important privacy interests at stake. They considered this to be a fatal omission and that the provision therefore breached section 8 of the Canadian Charter.

Section 1 of the Canadian Charter

Section 1 provides that:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

To determine whether section 184.4 constitutes a reasonable limit on the right to privacy, their Honours applied the two stage test set out in R v Oakes [1986] 1 SCR 103.

Does the impugned provision serve a pressing and substantial objective?

Their Honours found that the objective of preventing serious harm to persons or property in exigent circumstances is pressing and substantial, and the objective is rationally connected to the power provided under section 184.4, thereby satisfying the first stage in the Oaks test.

Are the means used to meet the objective proportional to the limit on the right?

The second stage of the Oaks test requires a proportionality analysis. Their Honours emphasised the nature of the provision, which confers the only wiretapping power that does not require either consent of one of the parties to the communication or judicial pre-authorisation. It allows for extreme measures in extreme circumstances. Accordingly, their Honours considered that it is paramount that the provision is administered and overseen properly. They found that, in its present form, section 184.4 does not constitute a reasonable limit for the purposes of section 1 of the Canadian Charter. The legislative scheme fails to provide any mechanism of oversight for the police use of this power. Further, there is no requirement to notify a person whose communication is being intercepted. Their Honours considered that an obligation to give notice to intercepted parties would enhance the ability of targeted individuals to identify and challenge invasions to their privacy and seek meaningful remedies. Parliament's goal of preventing reasonably apprehended serious harm could still be achieved by implementing this accountability mechanism. They found that a notice provision, along with the possibility of a reporting requirement, would adequately meet the fundamental goal of protecting the important privacy interests at stake.

Relevance to the Victorian Charter

Section 184.4 is an important provision in Canada. It is an emergency provision that ensures public safety and is drawn upon in circumstances of pressing urgency. It compromises Canadian Charter rights in urgent circumstances and recognises, that on occasion, the interests of a few must yield temporarily to the greater good of society. However, this decision reinforces the necessity to strike an appropriate constitutional balance between these competing interests. Legislative conditions, standards and limitations, along with mechanisms for oversight, are imperative to achieve this required balance. The relevant provisions of the Canadian Charter closely mirror provisions of the Victoria Charter of Human Rights and Responsibilities Act 2006 (Vic). In relation to the right to privacy, section 13 of the Victorian Charter, which is based on article 17 of the International Covenant on Civil and Political Rights, articulates the right to privacy as follows: “A person has the right…not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with, unless the law allows it.”

This right encompasses the protection of the right to private communications. All Victorian Charter rights may be limited to the extent that the limitation is “demonstrably justified in a free and democratic society”, as espoused in section 7(2), taking into consideration all relevant factors such as the nature of the right and the importance of the purpose for limiting the right. The right to privacy may also be limited to the extent that it allows for interference provided that interference is both lawful and not arbitrary. Reasonable interferences with privacy are those “based on reasonable and objective criteria and which are proportional to the purpose for which they are adopted”. This is the Victorian equivalent to the Canadian requirement that an appropriate constitutional balance be struck, ensuring that Charter rights are protected except when rare, urgent and necessary circumstances demand otherwise.

The decision is available at http://canlii.ca/en/ca/scc/doc/2012/2012scc16/2012scc16.html

Sheree Rubinstein is a Law Graduate at Allens.