The Supreme Court of Canada recently released a landmark ruling in Regina-versus-Tse that strikes down the constitutionality of a section of the Criminal Code that allows police to intercept private communications in exceptional circumstances.
The court — ruling on a 2006 British Columbia drug-related kidnapping case — was unanimous in its decision, and the reasons were authored by Prime Minister Stephen Harper’s two recent appointees. This case is interesting, since one of these appointees, Justice Michael Moldaver, sided with the Crown more often than his peers while sitting on the Ontario Court of Appeal.
The contested part of the Criminal Code allows police to intercept private communications without prior authorization by a judge if the officer believes on reasonable grounds that the interception is required immediately to “prevent an unlawful act that would cause serious harm.”
But before we assume that this is a major victory for the rights of the individual, one must take a closer look to see why this law was struck down.
This law was challenged under section eight of the Charter of Rights and Freedoms, which reads: “Everyone has the right to be secure against unreasonable search or seizure.”
The Supreme Court did not rule out wiretapping. The ruling stated that it is allowed under certain circumstances. As the contested law specified, it is allowed without a warrant under “exigent circumstances to prevent serious harm.” The court recognized the importance of striking a balance between the right against unreasonable search and seizure and between society’s interest in preventing serious harm.
If the court identified that there is a societal interest in intruding upon individual rights in certain circumstances, why was the section deemed unconstitutional? It “falls down on the matter of accountability” because there is no oversight mechanism after the fact.
The court argued there is no requirement to notify those who are being wiretapped. Basically, police could conduct surveillance of an individual and they may never be the wiser. If no charge were brought, the police conduct would never be open to a challenge in court. The court pointed out that when individuals are physically searched or chased, the individual is aware of the action, unlike wiretapping. The law is thus unconstitutional.
However, the court ruled there is no constitutional requirement to report such wiretapping to Parliament, but that it would be welcomed and “would seem to make good sense.” It also ruled that detailed records of the wiretapping would not need to be kept — notification to the targets would be sufficient. Record-keeping was merely encouraged.
Thus, this case is not a true victory for individual freedoms. In fact, it supports the legitimacy of state intervention in certain circumstances. The Supreme Court has given Parliament one year to redraft the provision to include the requirement to notify individuals. This is more of a procedural ruling aiming at striking a balance between two very important considerations: the right of the individual versus the right of society.
However, the decision does not go far enough. Minimally, the record-keeping requirement should also be enforced in addition to the judicial notice requirement. This would create a clear, formal line of accountability for individuals to challenge police actions after the fact. Written records can help prevent abuse of the provision as it provides for judicial oversight at least after the fact. It would not impair the police’s ability to carry out an investigation. It merely requires them to explain their reasoning before a judge to determine if there are grounds to invoke the provision.
Perhaps there are times when exigent circumstances will require police to conduct warrantless wiretaps. If so, it is paramount that such invasive and invisible intrusions are accounted for after-the-fact.
The court was right to demand notification, but a complementary record-keeping and reporting requirement would have ensured greater accountability with no impairment to the police’s ability to conduct the search in the first place. Doing so would have truly balanced the individual’s right against unreasonable search and seizure with society’s interest in preventing harm to citizens.
Original post here.