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Supreme Court of Canada Wiretap Decision Signals Need for Changes to C-30

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Monday April 16, 2012
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.

The emphasis on the need for a reporting requirement - even after the fact - is based on the view that it is perhaps the best form of accountability. The court cites with approval language from the Ontario Criminal Lawyers' Association 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. 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."

Given the court's emphasis on notice, it is striking that Bill C-30 moves in precisely the opposite direction. As David Fraser has discussed, the lawful access bill has a gag order the explicitly prohibits disclosure of the warrantless disclosure. The provision is designed to stop telecom and Internet companies from disclosing their mandated disclosures to affected subscribers, even if they ask. In fact, the lack of accountability extends beyond just the statutory gag order on notice. Law enforcement officials - including Competition Bureau investigators - can demand subscriber data without a warrant and without any justification for the demand. Given the missing accountability measures in Bill C-30, last week's Supreme Court decision sends a strong message that the lawful access bill is constitutionality vulnerable and provides yet another reason to withdraw the bill and hit the reset button.
Comments (9)add comment

pat donovan said:

good news
at first glance, lack of accountability sounds good.

then the 'user agreements', 'not withstanding' and 'remove bottlenecks' theories kick in.

throttling, for example. Or judges.

the most smothering gov't in our history will find a way to make it opposite day for us.

packrat
April 16, 2012

John said:

SO NO TO BILL C-30
We don't want this god damn bill at all scrap it! CONS didn't understand our message I guess, who said we just wanted to change this bill
April 16, 2012

Anon-K said:

...
There is a few items here... first of all, even David Fraser admits this "gag" order is not new, that it has been in PIPEDA for some time. I may have been reading it incorrectly, but the way that I read PIPEDA it would also cover the emergency wiretaps; after a fashion I can understand the rationale... do you really want a suspect to be able to circumvent a criminal investigation by taking things to email once they find out that they are under a wiretap?

Now, is it right is another issue. I have a memory from when C-30 was first introduced that a representative of the Chiefs of Police association was on TVO's "The Agenda" and indicated that they'd be quite happy with having a reporting mechanism for the warrantless subscriber information requirement.
April 16, 2012

Ki said:

@Anon-K
I'm sure the police are fine with the reporting, but my impression from the wording is that it's more than the police who may be using this. But I could be not remembering something corrently.
April 16, 2012

Irving said:

It's not even that complicated
If you can't get a judge to approve it, then you shouldn't be doing it. Period.
April 16, 2012

ben said:

...
Will the government listen? And can the courts actually do something even if c30 is passed?
April 17, 2012

AnonCoward said:

How much?
Is there any hard data on how much warrantless searches have been in the past? Is it 5 times, 500 times or 50,000 times? Does anyone have a scope of the effort?
April 17, 2012

Marcus said:

...
@ Anon-K

"do you really want a suspect to be able to circumvent a criminal investigation by taking things to email once they find out that they are under a wiretap?"

Do you really think the reporting we're talking about here would actually occur during an active investigation? Come on, that's more than a bit of a straw man argument. The reporting won't go out until the investigation is closed.

At that point, it's too late to shift to a different media because the communications are long done.
April 17, 2012

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April 26, 2012

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