Welcome To: On The Wire
- January 2, 2014
- Clayton Rice, Q.C.
On The Wire is a forum for opinion about the Charter of Rights and the criminal law with an emphasis on privacy issues. Although I am a wiretap lawyer my practice is not restricted to wiretap cases. I am first a criminal lawyer. My practice and experience include other types of cases. Wiretapping, however, is used by law enforcement in the investigation of serious cases such as conspiracy, drug trafficking and organized crime. Those kinds of cases are my daily work.
As I said on my web site a wiretap is a search and seizure authorized by a superior court judge based upon an affidavit usually sworn by a peace officer that establishes probable cause and investigative necessity. There are exceptions to the requirement of investigative necessity in Canada and I will talk about those in later posts.
The confrontation in the courtroom pits the state interest in law enforcement against the privacy rights of the citizen. The state has a legitimate interest in the investigation and prosecution of serious crime. But, also, every citizen has the constitutional right to be secure against unreasonable search and seizure under s. 8 of the Charter. For my American readers: I am a Fourth Amendment lawyer.
A wiretap authorization is not available to the police in Canada for the asking. The police must establish what I just called investigative necessity – that other investigative procedures have been tried and failed or that other procedures are unlikely to succeed. The question is not and can never be whether wiretapping is the most effective means of investigation. As Justice Louis LeBel of the Supreme Court of Canada said: A standard of efficiency, “…would rightly send a chill down the spine of every freedom-loving Canadian.” (See: R v Araujo,  2 SCR 992, at para. 39)
There are many other areas of technological development that threaten the privacy rights of the citizen. Computers and smartphones dominate life in the digital age. Portable communication devices contain more information about the average Canadian than our homes, offices and safety deposit boxes. They have become the target of special interest by law enforcement that has generated new developments in the Supreme Court of Canada and other courts throughout the nation. I will also discuss cases of interest in the United States under the Fourth Amendment and in European courts under Article 8 of the European Convention on Human Rights.
You may also follow me on Twitter @WiretapLawyer.