THE LAWYERS WEEKLY
June 1, 2012 | 13
CARBOUVAL / IS TOCKPHOTO
Surveillance under the spotlight
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
BENJAMIN
GOOLD
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 individ-
uals 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 war-
rantless interceptions only if criminal pros-
ecution results.
