Courtney Aarbo, Barristers and Solicitors

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.