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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.
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