On appeal from the British Columbia.
Held : The appeal should be dismissed. The declaration of invalidity is suspended for 12 months to allow Parliament to redraft a constitutionally compliant provision.
Constitutional law — Charter of Rights — Search and seizure — Interception of private communications — Police intercepting communications without authorization pursuant to s. 184.4 of Criminal Code on grounds interceptions were immediately necessary to prevent serious harm to person or property and judicial authorization not available with reasonable diligence — Whether s. 184.4 contravenes right to be free from unreasonable search and seizure pursuant to s. 8 of the Charter — Whether provision saved under s. 1 — Canadian Charter of Rights and Freedoms, ss. 1 and 8 — Criminal Code, R.S.C. 1985, c. C‑46, ss. 184.4, 185,186 and 188.
In this case, the police used s. 184.4 to carry out unauthorized warrantless interceptions of private communications when the daughter of an alleged kidnapping victim began receiving calls from her father stating that he was being held for ransom. Approximately 24 hours later, the police obtained a judicial authorization for continued interceptions, pursuant to s. 186 of the Code. The trial judge found that s. 184.4 contravened the right to be free from unreasonable search or seizure under s. 8 of the Charter and that it was not a reasonable limit under s. 1. The Crown has appealed the declaration of unconstitutionality directly to this Court.
Section 184.4 permits a peace officer to intercept certain private communications, without prior judicial authorization, if the officer believes on reasonable grounds that the interception is immediately necessary to prevent an unlawful act that would cause serious harm, provided judicial authorization could not be obtained with reasonable diligence. In principle, Parliament may craft such a narrow emergency wiretap authority for exigent circumstances. The more difficult question is whether the particular power enacted in s. 184.4 strikes a reasonable balance between an individual’s right to be free from unreasonable searches or seizures and society’s interest in preventing serious harm. To the extent that the power to intercept private communications without judicial authorization is available only in exigent circumstances to prevent serious harm, this section strikes an appropriate balance. However, s. 184.4 violates s. 8 of the Charter as it does not provide a mechanism for oversight, and more particularly, notice to persons whose private communications have been intercepted. This breach cannot be saved under s. 1 of the Charter.
Section 184.4 recognizes that on occasion, the privacy interests of some may have to yield temporarily for the greater good of society — here, the protection of lives and property from harm that is both serious and imminent. The stringent conditions Parliament has imposed to ensure that the provision is only used in exigent circumstances, effect an appropriate balance between an individual’s reasonable expectation of privacy and society’s interest in preventing serious harm. To that extent, s. 184.4 passes constitutional muster. In its present form however, s. 184.4 contains no accountability measures to permit oversight of the police use of the power. It does not require that “after the fact” notice be given to persons whose private communications have been intercepted. 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. There is no other measure in the Code to ensure specific oversight of the use of s. 184.4. In its present form, the provision fails to meet the minimum constitutional standards of s. 8 of the Charter. An accountability mechanism is necessary to protect the important privacy interests at stake and a notice provision would adequately meet that need, although Parliament may choose an alternative measure for providing accountability. The lack of notice requirement or some other satisfactory substitute renders s. 184.4 constitutionally infirm. In the absence of a proper record, the issue of whether the use of the section by peace officers, other than police officers, renders this section overbroad is not addressed.
The objective of preventing serious harm to persons or property in exigent circumstances is pressing and substantial and rationally connected to the power provided under s. 184.4. It is at the proportionality analysis of R. v. Oakes that the provision fails. The obligation to give notice to intercepted parties would not impact in any way the ability of the police to act in emergencies. It would, however, enhance the ability of targeted individuals to identify and challenge invasions to their privacy and seek meaningful remedies.