R. v. Tse - Supreme Court Establishes Notice Requirement For Wiretaps

In R. v. Tse, 2012 SCC 16, the Supreme Court of Canada has further defined the requirements of s. 8 of the Charter in regards to the electronic interception of communications. Tse involved a Constitutional challenge to s. 184.4 of the Criminal Code, being the only legislative provision which authorizes an electronic interception in the absence of either the consent of one of the participants or a prior judicial authorization.

Section 184.4 exists in recognition of the well-established rule that searches and seizures may be conducted without a warrant in "exigent circumstances". For example, in R. v. Godoy, [1999] 1 S.C.R. 311, and related cases, the Court had held that the police may enter a dwelling without a warrant in response to a 911 call in order to ensure the safety of the person making the call. The rationale underlying this rule is that taking the time to obtain a warrant would frustrate the police's ability to prevent serious harm to the potential victim of the crime.

In recognition of the rule in Godoy and related authorities, s. 184.4 allows the police to conduct a wiretap, or electronic interception without a warrant where the police believe "on reasonable grounds" that the "urgency of the situation" is such that an authorization could not, with "reasonable diligence", "be obtained under any other provision of this Part".

The trial judge in Tse, Davies J., had declared s. 184.4 unconstitutional on two grounds, neither of which had been clearly imported into s. 8 of the Charter as Constitutional requirements. Davies J. was concerned about the lack of any requirement for officers (i) to give notice to those persons whose communications had been intercepted and (ii) to report their use of s. 184.4 to senior, independent law enforcement officials, the executive branch of government or to Parliament. Davies J. was also concerned about the fact that the authority conferred by s. 184.4 could also be invoked by any "peace officer" as defined by the Criminal Code, thus rendering the provision overbroad.

Before the Court, the parties and interveners raised various other Constitutional challenges to s. 184.4, including an argument that the language of the provision was unconstitutionally vague.

The Supreme Court dismissed most of the arguments raised against s. 184.4, but struck down the provision on the basis of the absence of any accountability mechanisms – most importantly an after-the-fact notice provision. The Court noted that in the...