Government of Canada Introduces Legislation to Respond to Supreme Court Decision in R. v. TSE

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Ottawa, February 11, 2013 - The Honourable Rob Nicholson, P.C., Q.C., M.P. for Niagara Falls, Minister of Justice and Attorney General of Canada, today introduced legislation that responds to the Supreme Court of Canada decision in R. v. Tse. The legislation adds new privacy safeguards to the Criminal Code’s existing provision for wiretaps in situations of imminent harm.

“As the Supreme Court recognized, law enforcement sometimes may need to react quickly in urgent circumstances such as hostage takings, kidnappings, bomb threats or standoffs,” said Minister Nicholson. “As part of our commitment to fair and efficient justice, we have introduced this legislation to ensure that law enforcement can continue to react effectively to these situations of imminent harm, while increasing police accountability and privacy safeguards for the use of this authority.”

Parliament enacted Section 184.4 of the Criminal Code in 1993. Section 184.4 of the Criminal Code currently allows for the use of wiretapping without a court authorization when there is imminent harm (such as in the case of kidnappings or bomb threats). The Supreme Court found that Section 184.4 of the Criminal Code, as currently drafted, violates Section 8 of the Charter of Rights and Freedoms due to the lack of a requirement for after-the-fact notification of persons whose private communications were intercepted. The Supreme Court of Canada suspended its declaration of invalidity until April 13, 2013, to allow Parliament to amend the provision to make it constitutionally compliant.

The legislation would directly respond to the guidance from the Court by adding the safeguards of “notification” and “reporting” to Section 184.4 of the Criminal Code. Specifically, the legislation would make three changes:

  • Notification within 90 days - Notification would require that persons whose private communications have been intercepted in situations of imminent harm be notified within 90 days (subject to any extensions granted by a judge).
  • Annual reports - Reporting would require annual reports on the use of imminent harm wiretaps.
  • Restricting the usage - The changes would limit the authority to use this provision to police officers (currently it is available to the broader category of peace officers) and only to the offences listed in Section 183 of the Criminal Code.

In the decision in R. v. Tse, the police used s. 184.4, when the daughter of an alleged kidnapping victim started getting calls from her father saying he was being held for ransom. However, the police did not notify the person whose private communications were intercepted without judicial authorization.

The introduction of this legislation is part of the Government’s Plan for Safe Streets and Communities, which is one of four priorities identified by the Prime Minister. It focuses on tackling crime, victims’ rights, and fair and efficient justice.
An online version of the proposed legislation is available at www.parl.gc.ca.

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