The Supreme Court of Canada has struck down a wiretap exception police use in emergency situations on the basis that it contains no provision for notifying targets that they were under surveillance.
However the Court upheld the notion of an emergency wiretap provision that would allow police to act on short notice in situations such as bomb threats or hostage-takings.
The Court suspended the effect of its decision for a year so that Parliament could cure the notification problem with a legislative patch.
Mr. Justice Michael Moldaver and Madam Justice Andromache Karakatsanis combined to write the unanimous judgment, the first either judge has written since being appointed last fall.
Their decision was a careful attempt to avoid hamstringing police who must deal with sudden emergencies, while at the same time ensuring that they are accountable in the long run.
They said that a notification requirement would not get in the way of effective policing. It would, however, enhance the ability of targeted individuals to identify and challenge invasions to their privacy and seek meaningful remedies.
In the case under appeal, RCMP used the provision to carry out unauthorized warrantless interceptions of private communications when the daughter of an alleged kidnapping victim began receiving calls from her father stating that he was being held for ransom.
The validity of the wiretap section was challenged at trial by the defendants - Fat Fung Albert Tse, Nhan Trong Ly, Viet Bac Nguyen, Huong Dac Coan, Danie Luis Sou and Myles Alexnader Vandrick.
Approximately 24 hours after utilizing the emergency provision, the RCMP obtained a proper judicial authorization to continue the wiretap.
Several legal intervenors joined the attack, saying that the section was a draconian response.
The section specifies that a "peace officer" can intercept certain private communications without prior judicial authorization from either a suspect or an apparent intended victim of a crime. It states that the officer must only have reasonable grounds for believing that an interception was immediately necessary to prevent the commission of an unlawful act that would cause serious harm.
The section mandates that police must also move as quickly as possible afterward to obtain proper authorization to legitimize their wiretap.
The provision is the only one in the Criminal Code that does not require that one of the parties to a private interception be informed of the wiretap.
Judge Moldaver and Judge Karakatsanis said that the it would help the constitutionality of the section if Parliament were to receive an annual report detailing the times and circumstances where the emergency wiretap power has been used.
"As a matter of policy, a reporting regime that keeps Parliament abreast of the situation on the ground would seem to make good sense," they said. "That said, we do not see it as a constitutional imperative.