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Secretive police intercept power struck down

|Written By Shannin Kari

A section of the Criminal Code that permits a “peace officer” to intercept private communications in emergency situations without prior judicial authorization has been found to be unconstitutional by a B.C. Supreme Court judge.

The potential impact of the ruling in Ontario and other provinces may be hard to determine, in part because of the secretive nature of some of the provisions within s. 184.4 of the code.

The section permits a peace officer to intercept private communications when there are reasonable grounds that the “urgency of the situation” is such that an authorization could not “with reasonable diligence” be obtained under other parts of the code.

The peace officer must believe the interception is required to prevent an unlawful act that would cause serious harm to another person. As well, the intercepted communication must have a direct connection to the person suspected of the act likely to cause the harm.

When the new powers were introduced in 1993, then-federal justice minister Pierre Blais suggested they were to assist police in “unusual circumstances” such as hostage-taking or hijacking incidents.

Justice Barry Davies found s. 184.4 is unconstitutional because it violates rights, in s. 8 in the Charter, that protect against unreasonable search and seizure.

The decision, issued Feb. 22, is known as R. v. Six Accused Persons because it is a pretrial ruling in an upcoming jury trial in B.C.

An excerpt of the ruling was made public because “the constitutional rulings in this case are, however, important not only to these proceedings but also to the administration of justice [and] the conduct of the police in any future use they may seek to make of s. 184.4 of the code,” writes Davies.

During lengthy submissions last fall by Crown and defence, the judge also heard evidence from senior RCMP officers and other police services across the country.

An affiant representing the Toronto Police Service deposed that it intercepted communications “a few times a year” using s. 184.4 powers.

Because of the lack of reporting requirements, it is not clear how often the power is invoked by police. The court found only three other cases in Canada that interpreted the section and none assessed its constitutionality.

The Crown argued that the provision is rarely used across Canada and that, in most cases, people who have had communications intercepted will receive “de facto notification” as a result of the subsequent filing of criminal charges.

Simon Buck, who represents one of the six defendants, says the Crown was asking the court to have “complete trust” that police will not abuse the power. “There is no requirement in law or policy that records are kept of its use. We simply do not know how many times it is used,” says Buck, a lawyer with Wilson Buck Butcher & Sears in Vancouver. “A rookie officer in a remote community might use the provision to tap phones and not report this to anyone. How do we know this does not happen?” asks Buck.

In his ruling, Davies notes the section does not address situations where police may have erred in the decision to intercept private communications, or where they intercepted more communications than were necessary, or in circumstances that did not result in a prosecution.

“In any or all of those circumstances, the police would be answerable to no one,” writes the judge. “As with the failure to require notification of those intercepted of the fact of an interception, the lack of any reporting requirement undermines both constitutionality and police accountability,” he said.

The definition of “peace officer” in this section of the code includes not only police officers but customs officials, fishery guardians, the reeve of a community, and many other public officials.

“It is difficult to envisage the type of exigency that would require the implementation of s. 184.4 of the code by many of those who are defined as peace officers,” the judge observed. While the evidence from police suggested that only senior officers were permitted to make use of the powers, the section “does not mandate internal approval or supervision,” says Davies.

The judge stayed his declaration of invalidity for at least 18 months, to give Parliament time to correct the legislation. The attorney general of Canada may also apply to extend the stay period.

The RCMP and provincial and federal Crowns have all said they are reviewing the decision.

Davies made a number of suggestions to make the section constitutional, including limiting the interception of communications to those between the “perpetrator” of the anticipated serious harm and the intended victim. He also called for reporting requirements on the use of this power.

The judge declined a request by the Crown to read into the section the provisions necessary to cure its “constitutional deficiencies.”

“The appropriate forum for the resolution of such concerns must be Parliament,” said

Davies.

A Crown appeal is unnecessary, says Buck, given the suggestions included in the ruling.

“Any prudent lawmaker would simply make the changes to ensure constitutional compliance rather than appeal on principle. I think the public would welcome that approach,” says Buck.

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