Toronto Criminal Lawyers Blog

Though members of the public often interpret the word “wiretap” is referring only to listening devices used to intercept telephone calls, criminal defence lawyers and other legal practitioners use the word “wiretap” to refer to any concealed listening or recording device used to intercept private communications. Police use wiretaps to monitor private communications in hopes of obtaining evidence as part of an ongoing criminal investigation.

It is both illegal and unconstitutional for the police to intercept private communications using a wiretap without first obtaining a wiretap warrant. The police can only act in so far as their conduct is empowered by law. There is no law which allows the police to set up a wiretap without prior judicial authorization in the form of a warrant. Thus, any warrantless wiretap is illegal. Moreover, section 8 of the Canadian Charter of Rights and Freedoms guarantees that every person has a right to be free from unreasonable search and seizure. “Search” is defined very widely to include a wiretap. The Supreme Court has ruled that an illegal search is automatically considered unreasonable under section 8. When the police infringe Charter rights, the court has the power to grant the individual infringed upon a remedy. The primary remedy for a breach of section 8 is exclusion of evidence. This means that if the police obtain evidence against an individual using a warrantless wiretap, that individual’s criminal defence lawyer will argue that the wiretap violated the individual’s constitutional rights and that any evidence obtained through the wiretap should be ruled inadmissible at the individual’s trial.

Sections 186 and following of the Criminal Code of Canada govern the procedure for requesting, granting and executing a wiretap. Section 186 of the Code allows a Judge in the Superior Court of Justice to grant a wiretap warrant (unlike almost all other warrants which may be granted by a Justice of the Peace or a Judge in the Ontario Court of Justice).

The police must request a wiretap warrant before using any type of technology that intercepts private communications. Generally speaking this includes: a phone tap, a room probe (“bug”), and a body pack (“wearing a wire”).  However, this may also include video surveillance that also records sound. It is important to note that in private communications between two civilians, any conversation can be monitored or recorded with the consent of one of the parties. For this reason it is legal for an individual to tape all of his or her private telephone calls. However, it is not legal for the police to record or monitor private communications even with the permission of one of the parties involved, usually an undercover officer or confidential informant . Section 184 of the Criminal Code makes it clear that the police cannot rely on the consent to collect evidence using a body pack. Rather, a wiretap warrant must be obtained before the police may legally use a body pack. Thus, while a private individuals is free to record their communications with others, the police may not rely on the consent of one member of a conversation to legally record that conversation; they must obtain a wiretap warrant.

The method of applying for a wiretap warrant differs from the method of applying for every other type of warrants. While most other warrants require that the police swear a document called an information in front of a justice of the peace or judge in the Ontario Court of Justice, to apply for a wiretap warrant the police must prepare a special affidavit request. The affidavit must be written by a senior officer and a representative of the Crown Attorney’s office must approve and sign the request. Wiretaps are the only investigative technique that must be requested jointly by the Police and the Crown. Once the affidavit is prepared an officer must swear that its contents are true, under oath, before a judge of the Superior Court of Justice. The judge will then determine whether or not to grant the request. This is done ex parte, which means that it is done without the knowledge of the person to be tapped. This makes sense as notification to the suspect would undermine the very purpose of the investigation; however, as a result the validity of the application is determined without any opportunity for objection by a criminal defence lawyer.

Section 186 sets out criteria that the judge must consider when deciding whether or not to grant a wiretap warrant. The criteria to obtain a warrant under s. 186 are (i) reasonable and probable grounds and (ii) investigative necessity. Thus, first the police must prove that they have reasonable and probable grounds to believe that the wiretap will reveal evidence to further a specific on-going investigation. The police must demonstrate in the affidavit that they have reason to suspect that the individual to be tapped is involved in a specific type of criminal activity and that the tap will reveal a particular type of evidence. Second, the police must show in the affidavit that there is no other investigative technique by which they could obtain the evidence they are seeking. This means that by the time the police request a wiretap affidavit they have usually exhausted other means of collecting evidence such as an ordinary home search, a covert search, a confidential informant, and police surveillance. The wiretap affidavit must explain why these methods failed where the wiretap can succeed.

If the judge chooses to grant the warrant, the warrant will last sixty days and may be renewed at the end of that period. It is not unusual for a tap to continue for over a year through the use of multiple successive renewals. The wiretap warrant is very expansive and once granted it bestows the police with a number of powers. For example, generally speaking, the warrant will allow the police to use any form of technology – phone tap, room probe, or body pack – to further their investigation at their discretion. Moreover, most wiretap warrants will authorize the police to enter the suspect’s home without his or her knowledge in order to place a room probe.

Every warrant contains an identification clause which specifies which persons and which places may be monitored pursuant to the warrant. The identification clause will generally name: specific persons, specific places, unidentified persons, and unidentified places. The unidentified person’s clause allows the police to monitor conversations between the suspect and individuals who are not known to the police and who may, or may not, be involved in criminal activity with the suspect. The unidentified places clause is also often known as the “resorts to” clause. This allows the police to tap locations that the accused frequents where he or she may use the phone. These places need not be identified in the original affidavit; thus, once the police receive information suggesting that the suspect may engage in private communications in a new untapped location, they may tap that location. This could include, among other locations, the home of the suspect’s friends and family, a telephone booth near the suspect’s home, a hotel room the suspect purchases, and the suspect’s office and office phone. The only limitation to the power to add individuals and locations to the wiretap unidentified at the time of the affidavit is the rule that the warrant cannot authorize the police to tap an unidentified person at an unidentified location. Thus, if the police are tapping Jones and they intercept communications between Jones and Person X which are of interest, they cannot obtain then obtain the phone number from which person X is calling and tap that phone without obtaining a separate warrant for X.

A wiretap may be shown to be illegal and therefore unconstitutional if the warrant which authorized the tap is somehow deficient. Before the Charter, wiretap affidavits were automatically sealed. This created a huge problem from criminal defence lawyers; the only way to have the court unseal the warrant was to show that the officer lied to the court in the affidavit, but it was nearly impossible to argue that the officer lied in the affidavit without having access to the information in the affidavit! This changed in R. v. Dersch, where the Supreme Court of Canada ruled that the defendant was constitutionally entitled to a copy of the affidavit. However, around this time, the government also revised section 189 of the Criminal Code which dealt with the exclusion of evidence collected pursuant to a wiretap in the event that the wiretap warrant was found by the court to be illegal. In the old section 189, the Crown had the burden of proving to the court, beyond a reasonable doubt, that the wiretap warrant was legal. If the criminal defence lawyer could point to any instance of illegality (officer lied, warrant was not specific enough, the proper procedure was not followed, etc.), any evidence obtained pursuant to the warrant would be automatically inadmissible. Now, any application to exclude evidence obtained pursuant to a wiretap must follow the general procedure for excluding evidence under the Charter. This means that the individual raising the issue, the criminal defence lawyer, bears the burden of proving that the warrant violates section 8 of the Charter. In addition, a breach of section 8 no longer leads to automatic exclusion of evidence, so, if the criminal defence lawyer is successful in proving a breach, he or she must subsequently prove that the breach is so significant to warrant exclusion under the Charter. The new procedure makes it much more difficult for criminal defence lawyers to exclude evidence obtained pursuant to an illegal wiretap warrant.

In practice, wiretap warrants are easy to get and quite common in Canada. Canadian police tap more per capita than their counterparts in the United States. Moreover, the wiretap powers in Canada are much more expansive than those granted to police in the United States. In the US, there is a statutory obligation on police in the to minimize the interception of innocent calls. Thus, in the USA all wiretaps are monitored by a human being; he or she is obliged to turn off the tape recorder when the person is speaking to an individual about matters irrelevant to the police. This means that in the US, police are obliged to stop listening when the suspect is speaking to about personal matters unrelated to crime. In Canada there is no such obligation. Usually, the police simply record everything that is said on the tap and review it later to look for evidence. This is problematic for two reasons. Firstly, it means that it is much easier for Canadian police to execute a wiretap. Since the man-power required is negligible (someone simply sets up the tap and everything else happens mechanically) the police do not need to expend a lot of resources to set up a tap. In the US, the monitoring requirement necessitates the use of a lot of officer time and police resources to monitor the tap, providing a disincentive to tap in situations where a tap is not absolutely necessary. Without this disincentive, Canadian police are much more likely to use wiretaps.  Secondly, continuous recording is incredibly invasive. In Canada, if your phone is tapped, the police are listening to everything you say: conversations with your mother, conversations with your significant other, conversations with your doctor or psychiatrist, etc. These conversations are taped and stored at the police station in a file with your name on it. Such a significant invasion of privacy should be used sparingly in our system. Unfortunately, wiretaps have become accepted frequent practice in Canada. Criminal defence lawyers continue to fight against the proliferation of wiretaps using every legal avenue available to limit their use and protect the privacy rights of individual Canadians.

There are two essential stages to any challenge under the Canadian Charter of Rights and Freedoms. In the first stage, the claimant, working with his or her criminal defence lawyer, must show that it is more likely than not that his or her Charter rights were breached. In the second step the burden of proof switches to the Crown, and the Crown must show that it is more likely than not that the breach was justified under s.1 of the Charter.

Section 1 of the Charter limits all of the other rights in the Charter. It states that “[t]he Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” If the government passes a law that breaches the constitution, they can invoke s. 1 to argue that the breach is nonetheless justified in a free and democratic society.

Section 1 contains two requirements that the government must satisfy to show that the Charter breach is justified. In the first step the government must show that the breach is “prescribed by law”. This is a normally straightforward threshold criterion that basically requires that the limit have the “form of law”. In essence, it serves a gatekeeper function, limiting the number of instances where an infringement can be upheld. To be “prescribed by law”, the rule must be accessible and intelligible to the citizen. Both values fall under the more general concept of notice: to be “prescribed by law” the rule must be promulgated. In R. v. Therens, the Supreme Court of Canada explained what is meant by the requirement that the rule be “promulgated”; the rule will be “promulgated” and thus “prescribed by law” within the meaning of s. 1, if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from the application of a common law rule.

To be prescribed by law, the law must be “intelligible”, which means that citizens must be able to understand the effects of the law, including the nature of the behaviour which would constitute a breach of the law. This means that the law cannot be overly vague. However, courts have preferred to deal with the claim that a restriction is too vague or too broad at stage 2 of the s. 1 inquiry. In Osborne v. Canada (Treasury Board), the Supreme Court explained that vagueness has s. 1 significance in two ways: (1) a law may be so uncertain as to be incapable of being interpreted so as to constitute any restrain on government power. In these circumstances there is no “limit prescribed by law” and no s. 1 analysis is necessary because the threshold has not been met and (2) a law which passes the threshold test may, nevertheless, by reasons of imprecision, not qualify as a reasonable limit. This concept will arise under part two of the test.

At stage 2 the government must justify that the breach is “reasonable” and “demonstrably justified in a free and democratic society”. In 1986 in R. v. Oakes the Supreme Court of Canada formulated a test that the government must follow to prove that this requirement is met. At the first step of the Oakes Test, the government must show that there was a “pressing and substantial purpose” behind the law. In other words, the objective of the law must be of sufficient importance considering that the law has the effect of limiting an individual’s Charter rights. Though the court has said that the standard at this first step must be high to ensure that trivial objectives are not protected, in practice, the court rarely finds that the restriction fails the first step.

The second step of the Oakes test is a proportionality test. This step has three substeps – all of which the government must address. First, the government must show that the law was carefully designed to achieve the objective identified in step 1 of the Oakes test. The law must be fair and not arbitrary. The limit it imposes must be “rationally connected” to its objective.  For example, if the government were to make a law against visiting South America, and then identify their objective as “protecting endangered species”, the court would likely find that the law was not rationally connected to its purpose since visiting South America has little to do with the general goal of protecting endangered species. Though the purpose of protecting endangered species would likely be considered “pressing and substantial” under part 1 of Oakes, the law against visiting South America would not be a clear and effective way of protecting that objective. At the second sub- stage of the proportionality test, the government must show that the law is minimally impairing. In other words, the law must be designed to limit the rights and freedoms of Canadians as little as reasonably possible. The law against visiting South America in our example from before would also fail at this stage of Oakes. There are other ways to protect endangered species that limit individual freedom much less than the law proposed in this example. For example, the government could ban imports of goods made using endangered species. Thus, the law against visiting South America would be seen as much to harsh, impairing, or limiting. At the final substep of the proportionality test the government must show that there is proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”. Even if the government establishes that there is an important objective, the severity of the limit may be so great as to outweigh the benefit. This test operates on a sliding scale; the more severe the deleterious effects of the measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society. In our South America example, it would be clear that the law was extremely limiting on people’s freedom, yet the degree to which it accomplished the purpose of protecting endangered species was small (people, other than Canadians, could still harm endangered species in South America). The law would be seen as disproportionately harsh compared any benefit it could be expected to create.

Know your rights. Contact Kostman and Pyzer, Barristers, if you need a Toronto criminal lawyer or are charged with a criminal offence.