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Innocent Third Parties

  • June 2, 2014
  • Clayton Rice, K.C.

The police wiretap a landline in a lounge because they suspect that a drug dealer uses it for business. A waitress uses the lounge phone to call an abortion clinic to make an appointment. The police wiretap a pay phone at a local gym because they believe a murder suspect under surveillance uses it to call for cabs. A bodybuilder uses the gym phone to call his mistress to arrange a dinner date. The police wiretap a prostitute’s cell phone to monitor the activities of her pimp who they believe is a member of a human trafficking gang. The prostitute’s mother uses the cell phone to call her priest for spiritual advice.

The waitress, the bodybuilder and the mother are innocent third parties. They have not committed a crime. They are not even suspected. But these kinds of intercepts happen in every wiretap investigation. I will discuss one of the ways the law deals with this problem.

The pay phone in the gym is an example close to a real case where the Supreme Court of Canada affirmed the basis on which defence lawyers can challenge how the police implement a wiretap authorization. In R. v. Thompson, [1990] 2 S.C.R. 1111 Justice John Sopinka stated, at para. 47: “…[T]he extent of invasion into the privacy of these third parties is constitutionally relevant to the issue of whether there has been an “unreasonable” search or seizure. To hold otherwise would be to ignore the purpose of s. 8 of the Charter which is to restrain invasion of privacy within reasonable limits. A potentially massive invasion of the privacy of persons not involved in the activity being investigated cannot be ignored simply because it is not brought to the attention of the court by one of those persons. Since those persons are unlikely to know of the invasion of their privacy, such invasions would escape scrutiny, and s. 8 would not fulfill its purpose.”

Justice Sopinka went on to hold, at para. 51, that the interception of a pay phone must be accompanied by physical surveillance by the police to ensure that conversations are intercepted only when a target is using the telephone. The police cannot install a listening device and just leave it running in the hope that a target may come along.

There is a trade off here. Innocent third parties are trapped in wiretaps all the time. This invasion of privacy at the national level is enormous in scale. But the courts have held that this is an unfortunate cost of electronic surveillance. (Thompson, para. 48)

It has been almost twenty-five years since the Supreme Court of Canada considered whether the price is right. With the expansion of electronic surveillance since 1990 it is time for a reconsideration of the cost.


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