Criminal Code Amended to Permit Unauthorized, Warrantless Interceptions of Private Communications

Davis LLP Privacy Law Bulletin


In Canada, it is a criminal offence to intercept private communications without either (i) the consent of one of the participants to the communication or (ii) prior judicial authorization of the interception – with one exception.

Section 184.4 of the Canada Criminal Code permits a police officer to intercept a private communication, without consent and without judicial authorization, if the officer has reasonable grounds to believe that:

a) the interception is immediately necessary to prevent an offence that would cause serious harm to any person or to property;
b) one of the parties to the intercepted communication is either the person who would commit the offence or the victim or intended victim of the harm; and
c) the situation is so urgent that an authorization could not, with reasonable diligence, be obtained.

However, in R. v. Tse1, the Supreme Court of Canada held that this exception contravened the right to be free from unreasonable search or seizure under the Canadian Charter of Rights and Freedoms because Section 184.4 does not provide a mechanism for oversight, including notice to persons whose private communications have been intercepted. Thus, if a criminal prosecution does not result, the targets of the “wiretapping” may remain unaware that their communications were intercepted and never have the opportunity to challenge the use of Section 184.4. The Court held that the contravention was not a reasonable limit on the Charter right.

In response to the decision in R. v. Tse, the Canadian government has recently amended the Criminal Code, effective September 24, 20132, to address the Supreme Court of Canada’s concerns. The amendments:

a) require the Minister of Public Safety and Emergency Preparedness and each provincial Attorney General to report on interceptions of private communications made under Section 184.4; and
b) provide that a person whose private communication has been intercepted under Section 184.4 must be notified within 90 days (subject to extension if an investigation is ongoing); and
c) limit Section 184.4 interceptions to the (still very lengthy) list of offences set out in Section 183 of the Criminal Code.

If you have any questions concerning this bulletin please contact the author or your usual contact at Davis LLP.

 

This publication is intended to provide our general comments on developments in the law. It is not intended to be a comprehensive review nor is it intended to provide legal advice. Readers should not act on information in the publication without first seeking specific advice on the particular matter. The firm will be pleased to provide additional details or discuss how this information is relevant to a specific situation.
 

 


1 [2012] 1 S.C.R. 531.

2 Response to the Supreme Court of Canada Decision in R. v. Tse Act, Bill C-55, Royal Assent, March 24, 2013 (41st Parliament, First Session).

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