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Wiretap Limitations

Wiretap Limitations

  • January 16, 2014
  • Clayton Rice, K.C.

In 1979 five men and a woman were charged with conspiracy to traffic marijuana in Edmonton, Alberta. Wiretap evidence was new and central to the state’s case. I had been practicing in Alberta for only two years. The closest I had come to a wiretap was watching Francis Ford Coppola’s 1974 film The Conversation. The defendants were convicted at triaI. I came on for the appeal with Vancouver lawyer Howard Rubin. Howard led the way.

One of the issues in the case involved the construction of s. 178.13(2)(c) [now s. 186(4)(c)] of the Criminal Code. This section requires that a wiretap authorization shall identify the persons whose private communications are to be intercepted as well as the place and manner of interception. The issues were that the wiretap authorization was an attempt by the police to intercept all the communications at the named premises without regard to who the person was and it had no limitation as to place. In ruling that the wiretap intercepts were inadmissible Justice Samuel Lieberman of the Alberta Court of Appeal wrote the following for the majority: “We recognize that the courts should endeavor to interpret legislation in a manner that will make it work and accomplish its purpose but that duty is subject to the qualification that where an ambiguity results in two possible and reasonable interpretations in a statute that affects the common law rights of the subject the interpretation most favourable to the subject is to be preferred. Here the agents of the Crown are seeking to invade the appellants’ right to privacy and if there were an ambiguity in the paragraph in issue, and we have found that there is not, we would choose the interpretation most favourable to the appellant.” (R. v. Ritch et al (1982), 69 C.C.C. (2d) 289 (Alta. C.A.) at pp. 296-7)

Justice Lieberman went on to cite Colet v. The Queen (1981), 57 C.C.C. (2d) 105 where Justice Roland Ritchie in the Supreme Court of Canada approved of Maxwell on Interpretation of Statues, 12th ed. (1969), at pp. 251-2 where it is said: “Statutes which encroach on the rights of the subject…should be interpreted, if possible, so as to respect such rights, and if there is any ambiguity the construction which is in favour of the freedom of the individual should be adopted.”

The appeal of the Attorney General to the Supreme Court of Canada was dismissed. Chief Justice Brian Dickson briefly stated in oral reasons that the court was in substantial agreement with the Alberta Court of Appeal. (R. v. Brese, [1984] 2 S.C.R. 333 at p. 333)

The opinion of Justice Lieberman reflects a policy of construing wiretap authorizations in a way most favourable to the citizen. In other words, the law must be interpreted in a way that enhances the protection of the privacy interests at stake. Whether this policy has survived the early decades of the digital age and the incursion of state security measures on our freedom will be a recurring theme in my discussions.

We’ll see.

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