The Supreme Court of Canada issued an important decision last week on the wiretap provisions in the Criminal Code that should have an impact on the lawful access/online surveillance bill currently before Parliament. In R. v. Tse, a unanimous court ruled that the current emergency wiretap provision that allows for surveillance without a court order is unconstitutional. The court’s analysis is important because it speaks to one of the major criticisms of Bill C-30 – the lack of accountability. In this particular case, the court rules that warrantless wiretap may be permissible in emergency situations, but that such circumstances make an accountability particularly important:

The jurisprudence is clear that an important objective of the prior authorization requirement is to prevent unreasonable searches. In those exceptional cases in which prior authorization is not essential to a reasonable search, additional safeguards may be necessary, in order to help ensure that the extraordinary power is not being abused. Challenges to the authorizations at trial provide some safeguards, but are not adequate as they will only address instances in which charges are laid and pursued to trial. Thus, the notice requirement, which is practical in these circumstances, provides some additional transparency and serves as a further check that the extraordinary power is not being abused. In our view, Parliament has failed to provide adequate safeguards to address the issue of accountability in relation to s. 184.4. Unless a criminal prosecution results, the targets of the wiretapping may never learn of the interceptions and will be unable to challenge police use of this power.

Read more ›