In R. v. Tse, 2012 SCC 16, the Supreme Court of Canada has further defined the requirements of s. 8 of the Charter in regards to the electronic interception of communications. Tse involved a Constitutional challenge to s. 184.4 of the Criminal Code, being the only legislative provision which authorizes an electronic interception in the absence of either the consent of one of the participants or a prior judicial authorization.
Section 184.4 exists in recognition of the well-established rule that searches and seizures may be conducted without a warrant in "exigent circumstances". For example, in R. v. Godoy,  1 S.C.R. 311, and related cases, the Court had held that the police may enter a dwelling without a warrant in response to a 911 call in order to ensure the safety of the person making the call. The rationale underlying this rule is that taking the time to obtain a warrant would frustrate the police's ability to prevent serious harm to the potential victim of the crime.
In recognition of the rule in Godoy and related authorities, s. 184.4 allows the police to conduct a wiretap, or electronic interception without a warrant where the police 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".
The trial judge in Tse, Davies J., had declared s. 184.4 unconstitutional on two grounds, neither of which had been clearly imported into s. 8 of the Charter as Constitutional requirements. Davies J. was concerned about the lack of any requirement for officers (i) to give notice to those persons whose communications had been intercepted and (ii) to report their use of s. 184.4 to senior, independent law enforcement officials, the executive branch of government or to Parliament. Davies J. was also concerned about the fact that the authority conferred by s. 184.4 could also be invoked by any "peace officer" as defined by the Criminal Code, thus rendering the provision overbroad.
Before the Court, the parties and interveners raised various other Constitutional challenges to s. 184.4, including an argument that the language of the provision was unconstitutionally vague.
The Supreme Court dismissed most of the arguments raised against s. 184.4, but struck down the provision on the basis of the absence of any accountability mechanisms – most importantly an after-the-fact notice provision. The Court noted that in the specific context of electronic interceptions, such notice requirements are necessitated by the surreptitious nature of the activity, adopting the following comments of Davies J. at trial:
The interception of private communications in exigent circumstances is not like situations of hot pursuit, entry into a dwelling place to respond to a 9-1-1 call, or searches incidental to arrest when [public] safety is engaged. In those circumstances, the person who has been the subject of a search will immediately be aware of both the circumstances and consequences of police action. The invasion of privacy by interception of private communications will, however, be undetectable, unknown and undiscoverable by those targeted unless the state seeks to rely on the results of its intentionally secretive activities in a subsequent prosecution.
In finding an after-the-fact notice requirement to be necessitated by s. 8, the Court adopted the following submissions of the Criminal Lawyers' Association (Ontario):
. . . 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.
The Court's adoption of the above statements of principle constitutes a significant advancement in the law respecting s. 8 of the Charter. Prior to the release of this decision, it was not clear that an accountability mechanism such as a notice provision is an imperative requirement for electronic interceptions. It would also appear that such a requirement would logically extend to other surreptitious searches and seizures by law enforcement officials, such as those requiring physical entry upon business premises after hours, or those involving searches of residences or automobiles when the owner is absent.
With respect to Davies J.'s concerns regarding the absence of any requirement to report the occurrence of s. 184.4 interceptions to Parliament, the Supreme Court held that such a requirement might be a good idea from a policy perspective, but that such reporting is not a requirement of s. 8, notice to the affected person being sufficient for this purpose.
Interestingly, the Court specifically declined to address the issue of s. 184.4's potential applicability to "peace officers" other than the police due to the absence of any record addressing this issue. The Criminal Code's definition of "peace officer" extends to such persons as mayors, reeves, sheriffs, justices of the peace, border services officials, fishery guardians, and pilots in command of aircrafts. The Court reserved its ability to address this issue in the future, stating: "given that the section may be invoked by a wide variety of people, we do not foreclose the possibility that it may be vulnerable for that reason."
Under the circumstances, the Court suspended its declaration of invalidity for a period of 12 months in order to allow Parliament the time needed to examine and redraft the provision.
About Fraser Milner Casgrain LLP (FMC)
FMC is one of Canada's leading business and litigation law firms with more than 500 lawyers in six full-service offices located in the country's key business centres. We focus on providing outstanding service and value to our clients, and we strive to excel as a workplace of choice for our people. Regardless of where you choose to do business in Canada, our strong team of professionals possess knowledge and expertise on regional, national and cross-border matters. FMC's well-earned reputation for consistently delivering the highest quality legal services and counsel to our clients is complemented by an ongoing commitment to diversity and inclusion to broaden our insight and perspective on our clients' needs. Visit: www.fmc-law.com
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Specific Questions relating to this article should be addressed directly to the author.