In the second part of this series of posts on trends in wiretap law I concluded by saying there were judicial limitations on the ability of defendants to challenge the admissibility of wiretap evidence in court. I will pick up that discussion here.

First, if you are following this series of posts you will recall that in the one titled The Exclusionary Rule dated March 2, 2014, I said that Parliament repealed the exclusionary rule under the original s. 178.16(1) of the Protection of Privacy Act in 1993. Electronic surveillance would no longer be subject to unique considerations of admissibility. Any challenge to the admissibility of wiretap evidence in court would be considered under s. 24(2) of the Charter of Rights. The admissibility of wiretap evidence in court is now considered under the same legal regime as conventional search warrants. There is no question that wiretap evidence that would have been excluded under the old s. 178.16(1) of the Code could survive scrutiny under s. 24(2) of the Charter. The state gained by this exchange. The prosecution is never faced with automatic exclusion and has a fighting chance under s. 24(2).

Second, the courts have articulated a narrow basis upon which a defendant may challenge the admissibility of wiretap evidence. Justice Louise Charron in the Supreme Court of Canada has held that the requirement of obtaining leave to cross-examine a police officer who swore an affidavit to obtain a wiretap authorization leaves a narrow window for cross-examination because there is a narrow basis upon which a wiretap authorization can be set aside. The narrow question is: Whether there is a basis upon which the authorizing judge could have granted the wiretap. (R. v. Pires; R. v. Lising, 2005 SCC  66, [2005] 3 S.C.R. 343 at para. 40)

Although the state gained the edge by the 1993 Code amendments that is not to say the citizen lost with the entrenchment of the Charter. If given a choice I would go for the Charter every time. As Justice Charron of the Supreme Court of Canada has said: “…[O]n this question of whether the authorization was implemented in a reasonable manner, the defence is not left empty-handed as a result of the 1993 Code amendments….[T]he more significant post-Garofoli development is the comprehensive disclosure of investigative materials now required by R. v. Stinchcombe, [1991] 3 S.C.R. 326. Stinchcombe mandates a level of investigative transparency such that it provides the accused with the relevant evidence on how the authorization was implemented, as well as other details of the investigation. This development can only have enhanced the accused’s ability to meet the Garofoli threshold requirement for cross-examination. (Pires; Lising at para. 17)”

This completes the present series of posts on some trends in wiretap law. I will keep an eye on them as I am sure we will return to them again.