This appeal before the Supreme Court of Canada considered the constitutionality of s. 193(2)(e) of the Criminal Code, a provision which permits disclosure of intercepted communications to an investigator or prosecutor in a foreign state.
The case involved a request by the United States of America to extradite a resident of Canada who was the subject of a Canadian drug investigation. The extradition request by the U.S. was based on information that was collected as part of a covert Canadian criminal investigation (i.e. judicially authorized wiretap) and subsequently transmitted by Canada to authorities in the U.S. The case considered whether transmitting private communications collected with judicial authorization in Canada to foreign authorities violated ss. 7 and 8 of the Charter of Rights and Freedoms.
The BCCLA was granted leave to intervene and argued at the April, 2014 hearing that section 193(2)(e) of the Criminal Code violates s. 8 of the Charter. The BCCLA argued that the section permits near-limitless disclosure of Canadian private communications to investigators or prosecutors in a foreign country. In failing to place reasonable limits on disclosure, the provision effectively grants police untrammeled discretion and is ripe for abuse by both domestic and foreign authorities. In that respect, the experience of Maher Arar is a cautionary tale as to how disclosure of information to foreign authorities can lead to dire consequences for Canadians. The BCCLA further criticized the provision for failing to provide oversight of the disclosures: no judicial authorization is required, consent is not sought, notice need not be provided and there is no reporting or monitoring mechanism.
On November 14, 2014, the Court delivered its reasons for judgement. In a split 4-3 decision, the Court dismissed Mr. Wakeling’s appeal, determining that he did not successfully show an infringement of his s. 8 rights. The majority determined that the disclosure in this case was lawfully authorized under s. 193(2)(e) of the Criminal Code and that the legislation as a whole did not violate s. 8 of the Charter. Furthermore, the majority found no evidence that the manner of disclosure was unreasonable.
However, in a win for privacy rights, the majority determined that given the “highly intrusive nature of electronic surveillance” there should be a heightened reasonable expectation of privacy in the wiretap context. The majority determined that s. 8 protections should extend to wiretap disclosures by law enforcement, and further, that there is a residual and continuing expectation of privacy in wiretap information that persists even after it has been lawfully collected. The majority expressed that where a disclosing party knows or should have known that the information could be used “in unfair trials, to facilitate discrimination or political intimidation, or to commit torture or other human rights violations” s. 8 requires that the disclosure be carried out in a reasonable manner so that risks are mitigated, or not conducted at all.
The three dissenting judges would have found that the wiretap scheme violates s. 8 because it permits the sharing of intercepted information with foreign officials without meaningful safeguards.
The BCCLA is represented by Michael Feder and Emily MacKinnon of McCarthy Tétrault.