R. v. Tse, 2012 SCC 16

In R. v. Tse, 2012 SCC 16 (CanLII), Section 184.4 of the Criminal Code, which allowed police to wiretap individuals without their knowledge or consent, was declared to be an unreasonable infringement on the right to be free from unreasonable search an seizure.

Although the Court made it clear that temporary authorization for wiretaps in “exigent circumstances” is sometimes necessary and reasonable, it found that the Charter requires police to notify the subject once those exigent circumstances cease to apply. Section 184.4, as it was written, provided no such notification requirement, and was therefore not a reasonable limit on Section 8 of the Charter.

The Court’s conclusion was unanimous, as follows:

The objective of preventing serious harm to persons or property in exigent circumstances is pressing and substantial and rationally connected to the power provided under s. 184.4. It is at the proportionality analysis of R. v. Oakes that the provision fails. The obligation to give notice to intercepted parties would not impact in any way the ability of the police to act in emergencies. It would, however, enhance the ability of targeted individuals to identify and challenge invasions to their privacy and seek meaningful remedies. Section 184.4 of the Code is constitutionally invalid legislation.

Parliament was given 12 months to redraft the legislation in order to bring it into compliance with the Charter.