New & Notable: Emergency! Emergency wiretaps are unconstitutional

Section 184.4 of the Code permits a peace officer to intercept private communications, without prior judicial authorization, if there are reasonable grounds to believe it is necessary to prevent an unlawful act which would cause serious harm and authorization could not be obtained with reasonable diligence.  In 12 months, absent actions by Parliament, that section will no longer exist.  The Supreme Court has found it to be unconsitutional in R v Tse, 2012 SCC 16.

The trial judge had found section 184.4 to be unconstitutional on the basis that it failed to require notice and that it failed to require officers who relied upon the sections to report such use to senior, independent officials, the executive or Parliament [para 4] - the former requirement had previously been read in by Dambrot J in R v Riley, 2008 CanLII 36775 (SC).

In considering the issue the Court began with the question of whether unauthorized interception could be constitutional [paras 15-19].  The Court held that Parliament could "craft a narrow emergency wiretap authority" [para 18].

The second question the Court considered was the scope of 184.4[paras 20-59].  On this point the Court held that the section was not overbroad or vague "as it relates to police officers and the prerequisites restrict the availability of this section to genuine emergency circumstances" [para 59].

The Court also considered the lack of notice and held that it was a fatal defect not to have such a requirement (as with the one that exists in section 196(1)) [paras 81-86].

With respect to a "reporting" requirement, the Court held that it is not a constitutional requirement [paras 87-90].

In conclusion on the constitutionality of the section, the Court held that the lack of accountability is fatal to the section.  

Turning to section 1, the Court found that the proportionality test (the second stage) failed and section 184.4 could not be saved.

The ruling was suspended for 12 months.


DG Mack