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Emergency warrantless wiretapping unconstitutional: Supreme Court of Canada
Emergency warrantless wiretapping unconstitutional: Supreme Court of Canada
The Supreme Court of Canada has declared emergency wiretapping by police without a warrant unconstitutional.
Until now, police have been able to use wiretaps without a warrant if they believe there is an urgent need in order to prevent an unlawful act that would cause serious harm, and if judicial authorization cannot be quickly obtained.
The Court held s 184.4 of the Criminal Code unconstitutional, primarily because of a lack of accountability provisions. The Court notes there are no accountability measures to permit oversight of the police use of the power. The section 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.
Here is the decision (the case headnote is excerpted below):
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. Section 184.4 of the Code is constitutionally invalid legislation. This declaration of invalidity is suspended for 12 months to allow Parliament to redraft a constitutionally compliant provision.
This decision seems to be serving clear notice on the federal government that they may want to re-consider some aspects of the much criticized Bill C-30 currently before Parliament.
The controversial new electronic surveillance bill recently renamed the Protecting Children from Internet Predators Act because like we all hate child predators, eh!!!
Or as Public Safety Minister Vic Toews colourfully put it when faced with criticism of violation of privacy rights "You’re with us, or the child pornographers". I guess the original name of Bill C-30 was a little too bland (and also made it clear what the bill was really about) Bill C-30 – “An Act to enact the Investigating and Preventing Criminal Electronic Communications Act and to amend the Criminal Code and other Acts.”
It seems the SCC is in step with public opinion on this issue as a recent Angus Reid poll suggests.
The most unpopular measure included in Bill C-30 is requiring telecommunications providers to disclose, without a warrant, six types of identifiers from subscriber data (Name, Address, Telephone number, Email address, IP address and Local service provider identifier). Almost two thirds of Canadians (64%) disagree with this idea.
Most Canadians (53%) believe Bill C-30 is too intrusive, and that the government should not be able to track the movements of Canadians or reading their e-mails without a warrant. Only one third (27%) believe Bill C-30 is necessary because many criminal activities, including child pornography, have evolved with technology and police need broader tools to deal with these crimes.
...
While Canadians are content with the measures related to obtaining warrants, changing the definition of hate propaganda and preserving electronic evidence that are included in Bill C-30, the public provides a negative review of the more contentious aspects of the proposed legislation. The idea of surrendering subscriber data and identifiers without a warrant is rejected by almost two thirds of Canadians.
Strong majorities of people who voted for the New Democratic Party (NDP) and the Liberal Party in the last federal election brand Bill C-30 as too intrusive (62% and 58% respectively), but it is important to note that Conservative voters are not as supportive of this government initiative as they have been with others in the past. Almost half of Tory voters (47%) think the proposed legislation is too intrusive. Conservatives are evenly split on what the House of Commons should do with Bill C-30. New Democrats and Grits clearly want to see it defeated.
Alberta, traditionally a Conservative stronghold, is not on the government’s side on this issue. Albertans are more likely to wish for the defeat of Bill C-30 than Ontarians, British Columbians and Quebecers.
The SCC is clear they do not approve of warrantless searches and unchecked police powers in the name of law and order. And in this they seem to be reflecting the opinion of the majority of Canadians.
Contrast that with recent US Supreme Court cases, laws and public opinion in the Land of the Not-So-Free and the Home of the Scared.
Canadians should be pleased to see the SCC holding the government to account.
Philip Slayton who skewered some members of the legal profession (and rightfully so) in Lawyers Gone Bad: Money, Sex and Madness in Canada’s Legal Profession
In this shocking and delicious exposé, Philip Slayton, a respected corporate lawyer and former dean of law, sheds light on those who betrayed clients and committed crimes—sometimes for very little personal gain.
While recounting actual cases of Canadian lawyers who ran afoul of the law, using one-on-one interviews with the offenders and their families, Slayton searches for what drives a respected professional to corruption.
Sharp and insightful, this book is a call for reform of the legal profession as well as an entertaining, eyebrow-raising look at the few who give lawyers a bad name.
His original thesis was that the SCC had too much power but as he wrote the book his view changed as he revealed in a subsequent interview with Maclean's Magazine.
Q: You write, “The Supreme Court of Canada runs our life.” How so?
A: Since the 1982 Charter, fundamental social, economic, and political decisions have been taken by the Supreme Court of Canada: more than by Parliament or by the cabinet or by the prime minister. The court runs the life of every Canadian by deciding fundamental issues that we care a lot about. For example, in the Morgentaler case of 1988, the court struck down Canada’s abortion law and since that time there has been no abortion law at all. We are the only country in the Western world in which that is true. In the Vriend case, the court overrode the express wishes of the government of Alberta, and decided that provincial human rights legislation protected a gay man. The court has also said, for example, that same-sex marriage is okay, and that Quebec cannot secede unilaterally.
Q: Do you think the judges have overstepped their role?
A: The Charter handed that power to these judges and they are not averse to using it. Have they overstepped? That’s a difficult question. I changed my mind as I wrote this book. I began by thinking you have nine people not elected by anybody, they can’t be kicked out, they work behind closed doors, this is not a good thing, this is not democratic. Then I realized the only opposition we have to a very powerful executive branch, an increasingly autocratic executive branch, is the Supreme Court. The judges on that court are the only people who can decide, ‘You can’t do that.’ They are the real opposition to government in this country. And as such, they are very valuable and important.
Q: So it’s a good thing they run our lives?
A: It’s a good thing they are able and ready to challenge governments—federal and provincial—and bring them to more constitutional ground. It’s a good thing they protect minorities from the tyranny of the majority.
Do your justices always look like Mr. and Mrs. Clauses?
__________________
"Of course giving Sather cap space is like giving teenagers whiskey and car keys." - SBOB "Watching Sather build a team is like watching a blind man with no fingers trying to put together an elaborate puzzle." - Shadowtron
Sestito still on the make a wish tour. - rholt168
Do your justices always look like Mr. and Mrs. Clauses?
Those are the ceremonial robes.
On the bench, the Chief Justice, or, in her absence, the senior puisne judge, presides from the centre chair with the other judges seated to her right and left by order of seniority of appointment. At sittings of the Court, the judges usually appear in black silk robes, but they wear ceremonial robes of bright scarlet trimmed with Canadian white mink in Court on special occasions and in the Senate at the opening of each new session of Parliament.
And counsel are required to "gown" for the Courts of Appeal and Superior-level courts of the provinces and territories, as well as the Federal Court of Appeal and the Supreme Court of Canada. The donning of business attire is acceptable by lawyers in "inferior" provincial and territorial courts; court dress is also permitted, though rarely worn.
Last edited by Wetcoaster: 04-13-2012 at 02:58 PM.
From that I surmised the SCC was just telling the govt. to include an oversight mechanism if it wants to tap.
I haven't seen any Canadian data with respect to oversight mechanisms, but in the US, past data showed judges seldom refuse requests. It's just a minor hoop to jump through to avoid general fishing expeditions, where the taps are wide open.
In the old days, privacy regulations were much more strict on paper mail or landline phones. Restrictions on newer tech like e-mail, social media, cell phones, or foreign telecommunications are less strict; our grandparents were much more weary of govt sniffing about, we've seen a huge slippery slope on privacy rights during the internet age. And private corporations have never owned so much private data on individuals. And I hate that line, you have nothing to fear if you have nothing to hide (I don't fear the trend, it just makes me queazy).
Companies want people to feel comfortable with muted privacy regulations because they can monetize all that info. Governments want it both ways, less transparency from them, more from individuals (fear of terror or insurrection). The SCC decision is a step better than what the current govt. is asking for but I didn't really see any unmistakeable major victory for civil liberties there unless I missed something, just a minor tugging back on a steeper slope of rights erosion.
People seem to accept this erosion more at the business level than govt. level (unless it is painted as security) for some strange reason. Culturally, it's a bit different in Europe, people trust government more than business (again for some strange reason). Maybe I'm a more private computer geek that's uncomfortable in the spotlight, but I don't get the apathy about warrantless tapping or all the exhibitionism on Facebook (it's amazing the stuff people post on there without thinking)
So I had to drive to Saint Louis this morning for a job interview. Got the chance to listen to the Glenn Beck radio show for the first time ever....
Are there people that listen to him and actually think he is wise, insightful, or generally...well...worth listening to for reasons other than ridicule? It was really painful. I don't get the appeal.
So I had to drive to Saint Louis this morning for a job interview. Got the chance to listen to the Glenn Beck radio show for the first time ever....
Are there people that listen to him and actually think he is wise, insightful, or generally...well...worth listening to for reasons other than ridicule? It was really painful. I don't get the appeal.
Q: Do you think the judges have overstepped their role?
A: The Charter handed that power to these judges and they are not averse to using it. Have they overstepped? That’s a difficult question. I changed my mind as I wrote this book. I began by thinking you have nine people not elected by anybody, they can’t be kicked out, they work behind closed doors, this is not a good thing, this is not democratic. Then I realized the only opposition we have to a very powerful executive branch, an increasingly autocratic executive branch, is the Supreme Court. The judges on that court are the only people who can decide, ‘You can’t do that.’ They are the real opposition to government in this country. And as such, they are very valuable and important.
I don't follow these things, but whenever the US Supreme Court is in the news it always seems to come down to a 5-4 verdict, and there just seems to be something wrong about that. If you're determining important questions about whether something is constitutional or not if you're not getting consistent consensus rulings something has to be wrong there.
That's where our supreme court seems to work, in the US rather than being an independent body there seems to be the same partisan politics at play that you get everywhere else.
I don't follow these things, but whenever the US Supreme Court is in the news it always seems to come down to a 5-4 verdict, and there just seems to be something wrong about that. If you're determining important questions about whether something is constitutional or not if you're not getting consistent consensus rulings something has to be wrong there.
That's where our supreme court seems to work, in the US rather than being an independent body there seems to be the same partisan politics at play that you get everywhere else.
Because the United States constitution is easy to deliberately misinterpret or skew. The world has changed so much since it and the Bill of Rights were written, the language so inapplicable to today's society that Antonin Scalia and his ilk can choose to interpret it to support their own selfish agenda.
That's why you can count on four judges to vote in favor of Conservative ideals, four to vote Liberal and Justice Kennedy to be the swing vote, depending on his mood.
