Toronto Criminal Lawyers Blog

In Canada, all powers to search and seize are now subject to section 8 of the Canadian Charter of Rights and Freedoms, which articulates the right not to be unreasonably searched or have one’s possessions seized. As a result, sec. 8 requires that an assessment be made in each case of whether the public’s interest in being left alone by the government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals: most notably, those of law enforcement. In the case of Hunter v. Southam, the Supreme Court of Canada held that, save a few exceptions, and as a means of preventing unjustified searches, the requirement of prior authorization, such as a valid warrant, is a pre-condition for a valid search or seizure. The logical extension of this requirement amounts in principle to the rule that warrantless searches that don’t fall into one or more of the exceptions are unreasonable. This means that in most cases, the police will need a Judge or a Justice of the Peace to issue a search warrant before they can search any place or seize any property.

Reasonable Expectation of Privacy in a Motor Vehicle

Not all private property, however, commands the same level of respect for privacy from a sec. 8 perspective. By that it is meant that the courts will determine the individual’s level of expectation of privacy based on the place that is searched or the property that is seized. The higher the expectation of privacy, the more rigorously the courts will enforce the rule of prior authorization. Generally speaking, an individual will have a greater expectation of privacy in their home than they will in their car, a greater expectation of privacy in their car than in their work-locker, etc… It is without a doubt, however, that individuals do have a reasonable expectation of privacy with regard to their own car, and the contents of therein.

However, the same expectation of privacy is not attributable to persons who are not the vehicle’s owner and who are passengers within it. As the Ontario Court of Appeal held in R v Alkins, the already lesser expectation of privacy in a car is further reduced when the vehicle belongs to someone other than you. To illustrate this point, consider for a moment that you are a passenger in a vehicle which is stopped by the police for speeding. After briefly speaking with the driver, the officer believes that a weak scent of marijuana is coming from within the car. Ordinarily, that would not amount to sufficient grounds to search the vehicle, but say for the sake of example that the officer conducts the search anyway and discovers an ounce of marijuana under the passenger’s seat, where you happen to be sitting. As a result, both you and the driver are arrested for constructive possession of a controlled substance. At his trial, the driver’s lawyer brings an application to exclude the marijuana because it was obtained through an unlawful search of his vehicle, and succeeds. At your trial, your lawyer tries to do the same, but the judge dismisses your application. Why? The reason is because you are deemed to have a lesser, or no expectation of privacy in the car of another, and thus, cannot rely on the sec. 8 right not to be unreasonably searched.

Now say that instead of finding the marijuana under the passenger’s seat, the officer searched through a briefcase that was located in the trunk of the car. After asking who it belonged to, you advised the officer that it was yours, and you were not consenting to a search of its contents. Despite your protests, the officer goes ahead and searches it anyway, discovering the marijuana within it and placing both you and the driver under arrest. The situation has now fundamentally changed from when the discovery of the marijuana was found under the passenger’s seat. This is because you are deemed to have an expectation of privacy in the contents of a briefcase, or an opaque bag of any kind. In R v. Mohamad, the Ontario Court of Appeal held that the owners of briefcases generally have a reasonable expectation of privacy in the contents of their briefcases. The Court stated that briefcases can often have highly confidential personal and business information and, in a practical sense, can serve as possible portable offices or “keep-safes” for their owners. As a result, when your lawyer files an application to exclude the marijuana at your trial, you will be in a much stronger position and may be successful in having the evidence excluded. The word “may” is important in this context, because although the evidence was obtained in an unlawful manner, the Court will still need to balance your interest from being unlawfully searched against society’s interest in prosecuting crime on the merits.

Exceptions to the Rule of Prior Authorization

At the start, I mentioned that there existed a few exceptions to the rule requiring prior authorization for searches and seizures. One of the most common exceptions to the rule is what is known as the “search incident to arrest” power. A search incident to arrest occurs when the police search your person, objects on your person, your car, and/or the surrounding area as a result of your arrest for an alleged crime. For example, if the police see you engage in a drug transaction from within your motor vehicle, they will have the right to search you and your vehicle for any drugs. Any other unlawful objects, materials or supportive evidence that is found in the process of the search may also be seized.
However, police need to be careful how they use their power to search incident to arrest. A prerequisite to a search incident to arrest is that the arrest itself must be lawful. This means that if the police do not have reasonable and probable grounds to make the arrest in the first place, then the arrest is unlawful. As such, any incriminating evidence that they find on you, or in your car, may be excluded at your trial. Again, the word “may” is important in this context, because although the evidence was obtained in an unlawful manner, the Court will still need to balance your interest from being unlawfully searched against society’s interest in prosecuting crime on the merits.
Moreover, even if the arrest itself is lawful, the search which the police conduct subsequent to your arrest must be connected to the crime you are being arrested for. For example, if you are arrested for driving while impaired, generally speaking, a search of your vehicle would not be connected with what you are being charged with. What reason would the police have to search your car? The crime of driving while impaired has to do with you being impaired by drugs or alcohol while operating a motor vehicle. A search of your car is not required to prove the elements of the crime, and does little to further the police’s investigation. Conversely, in the drug-transaction example above, the search of your car is logically connected to your arrest. Since the police saw you sell drugs out of your car, it is not illogical to believe that there may be more drugs within the car. What constitutes a logical connection between the arrest and the search will be determined by the specific context of each individual case.

Other, less known, exceptions to the rule requiring prior authorization are contained within the Criminal Code itself. The most notable of those exceptions, for present purposes, is located in sec. 487.11, which states the following:

A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant

In the case of R v. Grant, the Supreme Court held that exigent circumstances exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed. Generally speaking, whether exigent circumstances exist on the occasion in question will be a question of law for the judge to decide. The “exigent circumstances” exception is one that is rarely used, since in most cases the police will gain control of the location that they intend to search, and then apply for a search warrant to permit them to enter, if they haven’t already applied for one.

Contact Kostman & Pyzer, Barristers, for your best defence.

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.