In Canada, it is a criminal offence to intercept private communications without either (i) the consent of one of the participants to the communication or (ii) prior judicial authorization of the interception – with one exception.
Section 184.4 of the Canada Criminal Code permits a police officer to intercept a private communication, without consent and without judicial authorization, if the officer has reasonable grounds to believe that:
However, in R. v. Tse1, the Supreme Court of Canada held that this exception contravened the right to be free from unreasonable search or seizure under the Canadian Charter of Rights and Freedoms because Section 184.4 does not provide a mechanism for oversight, including notice to persons whose private communications have been intercepted. Thus, if a criminal prosecution does not result, the targets of the "wiretapping" may remain unaware that their communications were intercepted and never have the opportunity to challenge the use of Section 184.4. The Court held that the contravention was not a reasonable limit on the Charter right.
In response to the decision in R. v. Tse, the Canadian government has recently amended the Criminal Code, effective September 24, 20132, to address the Supreme Court of Canada's concerns. The amendments:
Footnotes
2012] 1 S.C.R. 531.
2. Response to the Supreme Court of Canada Decision in R. v. Tse Act, Bill C-55, Royal Assent, March 24, 2013 (41st Parliament, First Session).
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