Wednesday, October 10, 2012

Interception of private communications

[29]       To take first the obvious. The interception of private communications constitutes a search or seizure, thus is subject to the requirement of reasonableness imposed by s. 8 of the CharterR. v. Duarte, [1990] 1 S.C.R. 30.  A search or seizure is reasonable if it is authorized by a law that is itself reasonable and is carried out in a reasonable manner: R. v. Collins, [1987] 1 S.C.R. 265, at p. 278.

[30]       Second, to be carried out in a reasonable manner pursuant to a conventional authorization issued under s. 186(1) of the Criminal Code, the interception of private communications must be carried out in accordance withthe terms of a valid authorization, as required by s. 184(2)(b).

[31]       Third, s. 186(4) of the Criminal Code prescribes the content and limitations of a conventional authorization. Among other things, the authorization must generally describe the place of interception, if a general description of that place can be given, and generally describe the manner of interception: Criminal Code, s .186(4)(c).

[32]       Fourth, the authorizing judge has a discretion, but not an obligation, to include terms and conditions in the authorization. This discretion, for which s. 186(4)(d) provides, becomes engaged if and to the extent that the authorizing judge considers that terms and conditions are advisable in the public interest.

[33]       Fifth, among the terms and conditions a judge may include in an authorization as advisable in the public interest are terms and conditions the purpose of which is to curtail the interception of the private communications in which designated targets do not participate, but rather are made by innocent third parties. These terms and conditions are often described as minimization clauses. Unlike §2518(5) of its American equivalent, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. §§2510-2520, Part VI of the Criminal Code and, in particular, s. 186(4), does not make minimization a mandatory term of every authorization:R. v. Finlay (1985), 52 O.R. (2d) 632 (C.A.), at pp. 658-660; Thompson, at pp. 1130-1132, and 1137-1138.


Anonymous said...

My father is a retired police officer who served for 33 years. He spent 21 of those years on the front line with the remainder being served as a sergeant. My Dad only had grade 10 education but was 6 foot 5 weighing a solid 265 pounds. The police service did send my Dad on many law courses and workshops over the many years but he told me that all of the rules, procedures and rights were the biggest hurdle to overcome. If you even stepped slightly away from these rules you stood a chance of loosing any evidence in court.

I remember my Dad and his cop friends often talking about how much B.S. it was just to do their job and make the community safer from the bad guys.

My Dad was one of those old school cops who you respected. When he asked you a question you answered. When he asked to if he could take a quick look in your car during a traffic stop you complied. When he asked to come in your home for a quick look around you allowed him in. Even to this day my Dad will always say that when your exercising your civil rights you must got something to hide. Yeah like I said he’s old school.


Despite my Dad’s imposing physical structure, he had his nose broken twice, over 100 stitches in his body, been hit by a car suffering a broken leg, slashed with a box cutter and even shot with a .410 gauge shotgun in the back. He survived all this so he gets a little excited about the civil liberties and procedure thing.

Good article BTW cause it reflects just how complicated it is for law enforcement to serve and protect.

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