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The Right to Notification

  • August 2, 2014
  • Clayton Rice, Q.C.

A wiretap authorization may only be granted by a superior court judge. The application is made by an agent of the Attorney General of a province or the Minister of Public Safety and Emergency Preparedness. An agent is specially designated under the Criminal Code. The application is usually based on an affidavit of a police officer.

The application is conducted in secret. It is called an ex parte application. Ex parte is Latin. It means that the application is conducted for the benefit of only one party. The targets of the wiretap application are not present. The content of the affidavit and police records generated by the wiretap are not revealed unless someone is charged and receives this information in pretrial disclosure from the Crown Attorney.

The right to notification is governed by s. 196 of the Code which¬†creates some transparency in the administration of the legal regime. The general rule is that the person who was the object of the interception must be given notice within ninety days after the wiretap ended. Accountability is achieved by means of after-the-fact notice. In R. v. Tse, 2012 SCC 16 the Criminal Lawyers’ Association of Ontario, one of the interveners, submitted this at para. 83: “…[N]otice is neither irrelevant to s. 8 protection, nor is it a “weak” way of protecting s. 8 rights, simply because it occurs after the invasion of privacy. A requirement of after-the-fact notice casts a constitutionally important light back on the statutorily authorized intrusion. The right to privacy implies not just freedom from unreasonable search and seizure, but also the ability to identify and challenge such invasions, and to seek a meaningful remedy. Notice would enhance all these interests. In the case of a secret warrantless wiretap, notice to intercepted persons stands almost alone as an external safeguard.”

Justice Michael Moldaver and Justice Andromache Karakatsanis added the following at para. 84: “The jurisprudence is clear that an important objective of the prior authorization requirement is to prevent unreasonable searches. In those exceptional cases in which prior authorization is not essential to a reasonable search, additional safeguards may be necessary, in order to help ensure that the extraordinary power is not being abused. Challenges to the authorizations at trial provide some safeguards, but are not adequate as they will only address instances in which charges are laid and pursued to trial. Thus, the notice requirement, which is practical in these circumstances, provides some additional transparency and serves as a further check that the extraordinary power is not being abused.”

Notification is the rear view mirror of wiretap law.

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