In R.
v. Tse, 2012 SCC 16, the Supreme Court of Canada considered whether a
wiretap provision of the Criminal Code was constitutional. The provision states that a peace officer can
intercept a private communication without getting authorization from a judge in
situations that are urgent. It was
argued that this provision violates the right of Canadians to be free from
unreasonable search or seizure under the Charter of Rights and Freedoms.
In this case, the police chose to intercept
telephone calls without obtaining permission from a judge after they were
contacted by a woman whose parents had been missing for three days. She told them that she had received a call
from her father asking for money and believed that her parents had been kidnapped. The police obtained valuable information from
the wiretap before they obtained an authorization from a judge.
The Court found that the provision does in
fact strike a reasonable balance between an individual’s right and society’s
interest in preventing serious harm.
However, the provision does not include any means to hold the police
accountable after the interceptions have been made. The police are not required to provide notice
to persons whose communications are intercepted. In addition, they do not need to report to
Parliament on the use of the provision like they are required to do when they
receive authorization from a judge. For these reasons, the provision was found
to be unconstitutional. Parliament has
been given twelve months to redraft the provision to make it constitutionally
compliant.
