Interception of private communications

The state’s interest in detecting and preventing crime begins to prevail over an individual’s interest in being left alone at the point at which credibly-based probability replaces suspicion.  Today’s decision in R. v. Largie, 2010 ONCA 548 contains a useful restatement of the law regarding the interception of private communications :

[39]         The interception of private communications by agents of the state with the consent of a participant constitutes a search or seizure.  It follows that the statutory scheme put in place by s. 184.2 is subject to the requirements of s. 8 of the Charter: Duarte at pp. 42, 57, and 60; R. v. Finlay and Grellette (1985), 52 O.R. (2d) 632 (C.A.), at p. 645.

[40]         A statutory provision authorizing electronic surveillance by a state agency must conform with the minimum constitutional requirements that s. 8 of the Charter demands, a standard described in Hunter as “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search”: Hunter at p. 168; R. v. Garofoli, [1990] 2 S.C.R. 1421, at pp. 1443-44. The intrusive nature of electronic surveillance, especially wiretapping, does not leave open the prospect of any lesser minimum requirements: Garofoli, at p. 1444.

[41]         The provisions of s. 186(1)(a), which require that the authorizing judge be satisfied that to grant the authorization would be in the best interests of the administration of justice, are identical to the constitutional requirement set by Hunter: Duarte, at p. 45; Garofoli, at p. 182.

[42]         In Finlay and Grellette, the appellants challenged the constitutional validity of [then] Part IV.1 of the Criminal Code, the predecessor to current Part VI. The basis of the challenge was threefold, including a submission that the standard for granting a conventional authorization, the current s. 186(1), fell below what the Constitution requires. The court upheld the validity of the Part examining the full panoply of safeguards sprinkled throughout the legislation. Without express reference to the investigative necessity requirement of s. 186(1)(b), the court was satisfied that the provisions of former s. 178.13(1)(a) were constitutionally sound.

[43]         In Duarte, the Supreme Court of Canada considered a challenge to the provisions of former s. 178.11(2)(a) that rendered lawful the interception of private communications with the consent of a participant, but without any requirement of prior judicial authorization. The Court concluded that the former s. 178.11(2)(a) did not infringe s. 8, but that the interception of private communications by an agency of the state with the consent of a participant without prior judicial authorization did infringe the rights and freedoms guaranteed by s. 8: Duarte, at p. 60.

[44]         For constitutional purposes, the Duarte court equated participant surveillance with third party surveillance by state agent: Duarte, at pp. 46-47.  It followed that prior authorization by a detached judicial officer was required to render constitutional participant surveillance by a state agent. What was required to meet the standards imposed by s. 8 was establishing to the satisfaction of a detached judicial officer, in advance of interception, that an offence has been or was being committed and that interception of private communications “stands to afford evidence of the offence”: Duarte, at pp. 45-46.

[45]         In Garofoli, the Supreme Court of Canada considered the minimum statutory constitutional requirements for judicially authorized third party electronic surveillance.  The Court concluded that the statutory requirements of former s. 178.13(1)(a), now s. 186(1)(a), were identical to the constitutional requirements of Hunter: Garofoli, at p. 1445. The Court added that to obtain an authorization for third party electronic surveillance, a state agent must also satisfy the statutory requirements of s. 178.13(1)(b), now s. 186(1)(b).

[46]         In Araujo, the Supreme Court of Canada was required to determine whether the facts disclosed in the affidavit filed in support of an application for conventional authorization sponsoring third party surveillance met the standard required by s. 186(1)(b) of the Criminal Code.  The Court re-affirmed the equivalence of s. 186(1)(a) with the minimum constitutional standard imposed under Hunter. Nowhere does the Court characterize investigative necessity as a constitutional requirement, or as anything other than a statutory pre-condition to the exercise of the discretion to grant a conventional authorization permitting state-conducted third party surveillance.