ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-091
DATE: 20121010

BETWEEN:

HER MAJESTY THE QUEEN – and – ROY ANDREW NIEMI Defendant

Raymond Williams and Julie Evans, for the Crown
Richard Stern and Neil Riley, for the Defendant

HEARD: October 1, 2012

challenge to constitutionality of s. 184.2 of the
Criminal code of canada

boswell j.

Overview:

[ 1 ] On April 13, 2012, the Supreme Court of Canada released a decision declaring the provisions of s. 184.4 of the Criminal Code , R.S.C. 1985, c. C-46, to be unconstitutional: R. v. Tse , 2012 SCC 16 , 344 D.L.R. (4 th ) 599 (“ Tse ”). Section 184.4 is the emergency wiretap provision, which authorizes a peace officer to intercept certain private communications, without prior judicial authorization, where the officer believes, on reasonable grounds, that the interception is necessary to prevent an unlawful act that would cause serious harm and provided judicial authorization could not be obtained with reasonable diligence. The Supreme Court found that s. 184.4 - available only in exigent circumstances and to prevent serious harm - struck a reasonable balance between an individual’s right to be free from unreasonable search and seizure and society’s interest in preventing serious harm. Nevertheless, the section was still found to violate the Canadian Charter of Rights and Freedoms because of its lack of any oversight provision, and more particularly, its lack of any requirement that notice be given to persons whose private communications have been intercepted.

[ 2 ] The accused in this case, facing a charge of first degree murder, asks the Court to similarly declare s. 184.2 unconstitutional, based on the reasoning in Tse . Section 184.2 of the Criminal Code provides for judicial authorization of wiretap intercepts for periods of up to 60 days, where one party to the communications consents to the interceptions. Like s. 184.4, s. 184.2 lacks an after-the-fact notice provision.

[ 3 ] The issue for determination on this application is straightforward: does the absence of a notice provision in s. 184.2 render the section unconstitutional?

Positions of the Parties:

[ 4 ] The position of the accused can be summed up rather simply. He relies heavily on the analysis of the Supreme Court in Tse . He places particular emphasis on the Supreme Court’s reference, at para. 82 of Tse , to Dickson J.’s ruling in the seminal case of Hunter v. Southam, 1984 33 (SCC) , [1984] 2 S.C.R. 145:

82 Accountability for police use of wiretapping without judicial authorization is important for s. 8 purposes. In Hunter v. Southam , Dickson J. explained that “[a] provision authorizing ... an unreviewable power would clearly be inconsistent with s. 8 of the Charter ” (p. 166). In the context of Part VI of the Code , apart from interceptions authorized under s. 184.1, accountability is achieved by means of after-the-fact notice and reporting.

[ 5 ] The accused submits that reviewability and accountability are the touchstones of constitutionality where wiretap provisions are concerned and that s. 184.2 does not pass constitutional muster given the absence of an after-the-fact notice requirement. He asserts that, in light of Tse , s. 184.2 is now orphaned as the only provision in Part VI of the Criminal Code to permit interception of private communications without after-the-fact notice and that, again in light of Tse , a finding of unconstitutionality is inevitable.

[ 6 ] The Crown agrees that s. 184.2 is now orphaned. In fact, the Crown was not content to declare the provision just orphaned. Counsel also placed it alone on a deserted island. [1] Notwithstanding this profound isolation, Crown counsel asserted that the constitutionality of the provision is assured by the requirement of prior judicial authorization – something missing from s. 184.4 – which the Crown described as the “gold standard” for constitutionality.

[ 7 ] For the reasons that follow, I find that s. 184.2 is markedly different from s. 184.4 and that its requirement for prior judicial authorization ensures that it does not infringe the rights enshrined in s. 8 of the Charter .

Analysis:

[ 8 ] The surreptitious electronic surveillance of an individual by an agent of the state constitutes an unreasonable search and seizure under s. 8 of the Charter : R. v. Duarte , 1990 150 (SCC) , [1990] 1 S.C.R. 30 at para. 18 . Section 184.2 is subject, therefore, to the requirements of s. 8 of the Charter .

[ 9 ] The Supreme Court recognized in Duarte that “if the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance.” (para. 22) The regulation of electronic surveillance is therefore necessary to protect individuals from the dangers presented from allowing the state an unfettered discretion to record and transmit our conversations: Duarte , para 21 .

[ 10 ] That is not to say that law enforcement agencies ought to be prohibited from utilizing the powerful tool of electronic surveillance in their investigation of crime. Justice Dickson recognized in Duarte , that “[e]lectronic surveillance plays an indispensible role in the detection of sophisticated criminal enterprises.” (para. 23) It is important to recall that s. 8 of the Charter does not provide blanket protection against all searches and seizures. Instead, it protects only against unreasonable ones.

[ 11 ] As Dickson J. held in Hunter v. Southam , as above, the “assessment of the constitutionality of a search and seizure…must focus on its ‘reasonable’ or ‘unreasonable’ impact on the subject of the search or seizure and not simply its rationality in furthering some government objective.” (page 157) The assessment involves a balancing act - a determination of when the individual’s interest in being left alone gives way to the state’s interest in detecting and preventing crimes.

[ 12 ] Parliament has attempted to balance and reconcile these competing interests in the provisions set out at Part VI of the Criminal Code , under the general heading “Invasion of Privacy”. Section 184(1) makes it an offence to wilfully intercept a private communication by means of any electro-magnetic, acoustic, mechanical or other device. Section 184.2 provides an exception to the offence created by s. 184(1) so long as the conditions of s. 184.2 are met. In particular, consent must be obtained from a participant to the private communication and in addition, prior judicial authorization must be obtained for the interception. The full script of s. 184.2 is set out in Appendix “A” hereto.

[ 13 ] The Crown asserts that s. 184.2 strikes an appropriate balance between the competing interests of individual and state, not only because of its requirement for consent but also, and primarily, because of its requirement for prior judicial authorization – two factors prominently absent from s. 184.4 . Any application for judicial authorization must establish, on oath or affirmation, to the satisfaction of the reviewing justice, that there are reasonable grounds to conclude that an offence has been or will be committed and that interception of private communications will afford evidence of the offence.

[ 14 ] I return to the analysis of Dickson J. in Hunter v. Southam , as above. As Watt J.A. aptly put it in R. v. Largie , 2010 ONCA 548 , 101 O.R. (3d) 561, at para. 47 ,

Hunter teaches that the state’s interest in detecting and preventing crime begins to prevail over an individual’s interest in being left alone at the point at which credibly-based probability replaces suspicion. The minimum standard consistent with s. 8 of the Charter for authorizing search and seizure is reasonable and probable grounds, established on oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search: Hunter , at pp. 167-68.

The Crown submits that s. 184.2 exceeds this minimum standard required by s. 8.

[ 15 ] The accused essentially urges the Court to conclude that the Supreme Court’s decision in Tse extends the minimum constitutional standard referenced in Hunter , Duarte and Largie . Specifically, that Charter compliance requires accountability and that accountability depends on after-the-fact notice being provided to any party whose private communications have been intercepted. With respect, I disagree.

[ 16 ] In Hunter , Justice Dickson applied a purposive analysis to s. 8 of the Charter . The purpose of s. 8 , he said, is to protect individuals from unjustified state intrusions upon their privacy. The purpose is served best by preventing unjustified searches before they happen, as opposed to engaging in an after-the-fact assessment about whether they should have happened in the first place.

[ 17 ] The theme of Hunter was continued in Duarte , where LaForest J. held, at para. 25, that:

[A] reasonable expectation of privacy would seem to demand that an individual may proceed on the assumption that the state may only violate this right by recording private communications on a clandestine basis when it has established to the satisfaction of a detached judicial officer that an offence has been or is being committed and that interception of private communications stands to afford evidence of the offence

[ 18 ] In Duarte , the constitutionality of the predecessor section to s. 184.2 was in issue. The Supreme Court held that the interception of private communications by a state agent with the consent of a participant, but without prior judicial authorization, contravened s. 8 of the Charter . In response, Parliament enacted s. 184.2 which requires prior judicial authorization in addition to the consent of one of the participants.

[ 19 ] The constitutionality of s. 184.2 was directly in issue in R. v. Largie , as above. There, the issue was whether s. 184.2 infringed s. 8 of the Charter because the test for judicial authorization under s. 184.2 does not require the applicant to demonstrate investigative necessity. Watt J.A. referenced, and ultimately followed Duarte , saying, at para. 44 :

For constitutional purposes, the Duarte court equated participant surveillance with third party surveillance by state agent: Duarte , at pp. 46-47. It followed that prior authorization by a detached judicial officer was required to render constitutional participant surveillance by a state agent. What was required to meet the standards imposed by s. 8 was establishing to the satisfaction of a detached judicial officer, in advance of interception, that an offence has been or was being committed and that interception of private communications “stands to afford evidence of the offence” : Duarte , at pp. 45-46. [Emphasis added.]

[ 20 ] R. v. Tse was released some two years following Largie and 22 years after Duarte . But it is apparent from the analysis in Tse , that the Supreme Court has not changed its view on the basic requirements for compliance with s. 8 of the Charter . In my view, the analysis in Tse makes it clear that the requirements of s. 8 continue to be met by a prior judicial authorization. Indeed, the Court clearly and repeatedly contrasted the procedure set out in s. 184.4 from those situations in which prior judicial authorization was required and obtained. See for instance, the following paragraphs (emphasis added):

16 In the landmark decision Hunter v. Southam Inc. , 1984 33 (SCC) , [1984] 2 S.C.R. 145 , this Court determined that a warrantless search is presumptively unreasonable. The presumed constitutional standard for searches or seizures in the criminal sphere is judicial pre-authorization : a prior determination by a neutral and impartial arbiter, acting judicially, that the search or seizure is supported by reasonable grounds, established on oath (pp. 160-62 and 167-68).

82 Accountability for police use of wiretapping without judicial authorization is important for s. 8 purposes. In Hunter v. Southam , Dickson J. explained that “[a] provision authorizing ... an unreviewable power would clearly be inconsistent with s. 8 of the Charter ” (p. 166). In the context of Part VI of the Code , apart from interceptions authorized under s. 184.1, accountability is achieved by means of after-the-fact notice and reporting.

84 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.

89 Accountability on the part of those who intercept private communications under s. 184.4 without judicial authorization is an important factor in assessing the constitutionality of s. 184.4.

[ 21 ] Tse certainly stands for the proposition that there must be accountability for police use of the powers granted by Part VI of the Criminal Code , including s. 184.2 . In the absence of prior judicial authorization, accountability is achieved through a notice provision: Tse , para. 82 .

[ 22 ] Tse doe not, in my view, stand for the proposition that the absence of an after-the-fact notice provision equates to an infringement of s. 8 of the Charter . Indeed, the preferred standard, harkening back to Hunter v. Southam , is prior authorization. It is preferable to avoid unreasonable searches before they happen, as opposed to assessing, on an after-the-fact basis, whether they should have happened at all.

[ 23 ] I am satisfied that the constitutional standard for searches and seizures, including the surreptitious interception of private communications, is met by prior judicial authorization, where there has been a finding that the search and seizure is supported by reasonable grounds, established on oath. Section 184.2 meets the requisite standard given the requirement for prior judicial authorization. That requirement is further supported by the one-party consent provision. Though the consent of one party (typically a police officer or informant) is not sufficient, on its own, to establish reasonableness, on a s. 8 standard, it is not valueless.

[ 24 ] As Watt J.A. noted in Largie , as above, at para. 56 ,

It is also worthy of reminder that although it is subject to a requirement of prior judicial authorization, participant surveillance differs in scope from third-party surveillance. Participant surveillance is generally more focused than third-party surveillance, targeting specific conversations with specific individuals. Capture of third-party communicants is less likely. And the consenting party may also direct the conversations, thus reducing the risk of intrusion into the target’s privacy.

[ 25 ] I am not persuaded that s. 184.2 offends the Charter . In the result, the application of the accused to declare s. 184.2 unconstitutional is dismissed.

Boswell J.

Released: October 10, 2012

APPENDIX “A”

184.2 (1) A person may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication where either the originator of the private communication or the person intended by the originator to receive it has consented to the interception and an authorization has been obtained pursuant to subsection (3).

Application for authorization

(2) An application for an authorization under this section shall be made by a peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, ex parte and in writing to a provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552, and shall be accompanied by an affidavit, which may be sworn on the information and belief of that peace officer or public officer or of any other peace officer or public officer, deposing to the following matters:

( a ) that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed;

( b ) the particulars of the offence;

( c ) the name of the person who has consented to the interception;

( d ) the period for which the authorization is requested; and

( e ) in the case of an application for an authorization where an authorization has previously been granted under this section or section 186, the particulars of the authorization

Judge to be satisfied

(3) An authorization may be given under this section if the judge to whom the application is made is satisfied that

( a ) there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed;

( b ) either the originator of the private communication or the person intended by the originator to receive it has consented to the interception; and

( c ) there are reasonable grounds to believe that information concerning the offence referred to in paragraph ( a ) will be obtained through the interception sought.

Content and limitation of authorization

(4) An authorization given under this section shall

( a ) state the offence in respect of which private communications may be intercepted;

( b ) state the type of private communication that may be intercepted;

( c ) state the identity of the persons, if known, whose private communications are to be intercepted, generally describe the place at which private communications may be intercepted, if a general description of that place can be given, and generally describe the manner of interception that may be used;

( d ) contain the terms and conditions that the judge considers advisable in the public interest; and

( e ) be valid for the period, not exceeding sixty days, set out therein.

[1] To be fair, s. 184.1 does not contain a notice provision either. Section 184.1 authorizes an agent of the state to intercept private communications where one party consents and where the purpose of the interception is to prevent bodily harm. Accountability is achieved, at least in part, by subsection (3) of 184.1 which requires the agent of the state who intercepts a private communication to, as soon as practical, destroy any recording of the private communication that is obtained from an interception, any full or partial transcript of the recording and any notes made by that agent of the private communication if nothing in the private communication suggests that bodily harm, attempted bodily harm or threatened bodily harm has occurred or is likely to occur.