In the first part of this series of posts on trends in wiretap law I said that over the last thirty years there has been an expansion of state intrusion into the personal sphere of the individual that is vivid in the context of electronic surveillance. I will talk about that some more.

State electronic surveillance of the individual has been expanded by wiretap authorizations that may now be granted for longer periods of time and for a larger and growing number of offences. I am talking about communication surveillance by agents of the state and not the local shopkeeper who has a video camera directed at the counter in his corner store. Communication includes talking on a smartphone and text messaging. The time period for a wiretap authorization in the original Protection of Privacy Act [now Part VI of the Criminal Code] was a maximum of thirty days. That has been lengthened to sixty days and up to one year by s. 186.1 of the Code for a criminal organization offence. Wiretap authorizations for sixty days are commonplace. Judges in Canada routinely grant them without asking the police why a shorter period would not suffice. The statutory maximum has become the judicial minimum.

Under ss. 185(1.1) and 186(1.1) of the Code which apply to criminal organization and terrorism offences the police may obtain a wiretap on the basis of probable cause without establishing investigative necessity while providing for a duration period from sixty-one days to an undetermined length. In one British Columbia case Justice S.R. Romilly rejected a defence argument that this “lowering of the bar” is reminiscent of a writ of assistance and is a serious assault on the privacy rights of all Canadians. (R. v. Pereira, 2008 BCSC 184, 247 C.C.C. (3d) 311 at paras. 249, 255-7)

Historically a wiretap authorization would only be granted for the investigation of the most serious crimes. Yet there has been a dramatic increase in the number of offences for which wiretap authorizations may be granted. Many of these offences are of dubious seriousness. The original s. 178.1 of the Protection of Privacy Act contained 44 offences and the inchoate crimes such as conspiracy. The number has more than quadrupled since 1974. The definition now contained in s. 183 of the Code lists 184 offences as well as the inchoate crimes. This does not include offences under the Security of Information Act, R.S.C. 1985, c. O-5.

While wiretap authorizations have expanded in duration and there has been an increase in the number of offences for which they may be granted there have also been judicial limitations put on the ability of defendants to challenge the admissibility of wiretap evidence in court.

I will talk about the judicial limitations in part three.