Sunday, June 03, 2012

Can you hear us now Mr. Vic Toews ..... well can you?

Good Day Readers:

Are you aware of this key Supreme Court of Canada decision? Perhaps you should be because of its possible impact on what were formerly known as Bills C-30 and C-51. The former contained the controversial provision allowing The Harper government to track your online activity without a search warrant, and to make matters worse, it contained a built-in gag order preventing your Internet Service Provider from telling you. Bill C-51 would have required ISPs to install the necessary equipment so anyone could be monitored 24/7/365 and you know what that means - the associated costs would be passed onto the consumer.

Thank goodness Canadians had the presence of mind to cause such an uproar the Conservatives had to back down but you know they'll be back with revised versions of these Bills. The question then becomes what impact will the recent Supreme Court of Canada's decision in Regina versus Tse in the reincarnation of this legislation?

Clare L. Pieuk

Surveillance under the spotlight
By Benjamin Goold
June 1, 2012 Issue
For anyone concerned about individual privacy, wiretaps, and police accountability, there is much to celebrate in the recent Supreme Court decision in R. v. Tse, 2012 SCC 16. The court unanimously declared that s. 184.4 of the Criminal Code is unconstitutional and instructed Parliament to redraft the provision with a view to ensuring that the emergency powers granted by the section are subject to sufficient oversight.

It’s an encouraging step forward in the court’s approach to the use of wiretaps by police. However, the court’s failure to clarify or restrict the circumstances in which the powers under s. 184.4 can be invoked stands as another missed opportunity to rein in the surveillance powers of the Canadian state.

In R. v. Tse, the Supreme Court was asked to consider whether the interception without prior judicial authorization of private communications — ​in this case, telephone calls from an alleged kidnapping victim to his daughter — ​amounted to a violation of the right to be free from unreasonable search and seizure under s. 8 of the Charter.

According to s. 184.4, a peace officer may intercept a private communication when it is believed on reasonable grounds that such a step is immediately necessary to prevent serious harm, and that the urgency of the situation is such that an authorization could not, with reasonable diligence, have been obtained under any other provision of the Criminal Code.

In reaching the conclusion that s. 184.4 is unconstitutional, the court held that interception of communications without judicial authorization must be subject to appropriate and effective accountability measures, including an after-the-fact notice requirement, which would enable individuals to identify and challenge the legality of such intrusions. As the court rightly observes, unless there is a requirement to provide notice, the targets of wiretapping under s. 184.4 are likely to learn of the warrantless interceptions only if criminal prosecution results.

In stressing the importance of the notice requirement, the court took the unusual step of explicitly endorsing the views of one of the interveners on the case, the Criminal Lawyers’ Association (Ontario), which argued that 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.”

Insofar as R. v. Tse makes it clear that powers such as those conferred by s. 184.4 must never be exercised in secret, the decision represents a welcome affirmation of the principles laid down in cases such as Hunter v. Southam and R. v. Duarte.

Unfortunately, the Supreme Court was not willing to go further. It did not restrict the circumstances under which such powers can be invoked by the police; nor did it clarify what constitutes “reasonable diligence” when it comes to police efforts to obtain prior judicial authorization. After a lengthy consideration of the scope and language of s. 184.4, the court rejected arguments that the section is vague and overbroad. It held that the restrictions imposed by the section are sufficient to ensure that the powers conferred are used in genuine emergencies.

On the question of why judicial authorization may not be feasible or immediately available, the court noted that “there may be logistical reasons, such as the availability of a judge or designated judge or designated police officer; the time required to ready an application and access the judge; and the time for the judge to consider the matter and reach a decision.”

While this approach may appear sensible, the lack of guidance as to what constitutes reasonable diligence is problematic. For example, by framing the test in terms of judicial availability, the court leaves too much discretion in the hands of the police. At what point does gaining access to a judge become so difficult as to render them unavailable for the purposes of the section? How are the police to decide when a judge is effectively unavailable?

Similarly, when looked at from the perspective of the person whose privacy is being violated, it is hard to see why the amount of time required to prepare an application for judicial approval should be given such weight. If the current application process is too onerous or insufficiently flexible to respond to emergency situations, then it should be reformed. It should not, however, be effectively abandoned because of the possibility of delay. By the same token, the fact that a judge may take time to decide whether a warrant should be issued is not a compelling reason to sidestep the need for judicial authorization.

The lack of clarity around what constitutes reasonable diligence in the context of s. 184.4 is particularly troubling when examined in the context of the section as a whole. The other requirements in the section — ​that officers have “reasonable grounds” to justify their actions, and that the situation in question be “urgent” — ​together with the requirement to show reasonable diligence, amount to little more than a strong expectation of reasonableness on the part of the police.

The Court does make a point of stressing that the longer the timeframe available to the police to obtain a warrant, the less likely use of s. 184.4 will be acceptable — ​but this is not enough. Privacy is always in danger of being balanced away in the name of safety and security, and simply requiring the police to exercise reasonable diligence is unlikely to ensure that the right balance is being struck.

In addition to external oversight — ​in the form of an independent, national regulator that has the power to review all extra-judicial interceptions — ​there must be more explicit restrictions placed on powers such as those contained in s. 184.4. The police must be required to do everything in their power to obtain a warrant before violating an individual’s privacy, and the courts must be willing to exclude evidence obtained via an unauthorized wiretap unless they can be convinced that this is the case.

Unless a more robust approach is taken — ​and the circumstances under which a warrantless wiretap can be used are made clearer and more restrictive — ​then there is a very real danger that the definitions of what constitutes “reasonable diligence” and “reasonable grounds” will only expand in response to continued pressure from the police and the state for more extensive and intrusive surveillance powers.

Benjamin Goold is an associate professor at the University of British Columbia’s Faculty of Law. In addition to an interest in criminal law and procedure, he has also written on police surveillance and the relationship between security and human rights.


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