Regina Leader-Post

Critics say ruling may impact snooping bill

- SHEILA DABU NONATO

OTTAWA — The Supreme Court of Canada’s landmark ruling that emergency wiretappin­g without a warrant is “unconstitu­tional” — which could pave the way for a new federal law that better safeguards privacy rights — is being used by critics to revive their attacks on the Harper government’s controvers­ial Internet surveillan­ce bill.

“It’s a huge blow to the Conservati­ve’s Internet snooping bill,” NDP justice critic Jack Harris told Postmedia News.

“I think we can expect that their legislatio­n will face similar challenges if they put it in place. We can go after criminals aggressive­ly without treating ordinary citizens like criminals.”

Bill C-30 would require telecommun­ications companies to hand over customers’ personal informatio­n to police without a court order.

A spokeswoma­n for Justice Minister Rob Nicholson said the government will be reviewing the court’s decision “carefully to determine next steps,” but declined to comment further.

In a unanimous ruling, the country’s top court said police have an obligation to “give notice to intercepte­d parties” in the form of a court-issued warrant; that notice can be issued after the investigat­ion.

This would “enhance the ability of targeted individual­s to identify and challenge invasions to their privacy and seek meaningful remedies,” according to the judgment released Friday.

Until now, police have been able to use wiretaps without a warrant if they believe there is an urgent need in order to prevent an unlawful act that would cause serious harm, and if judicial authorizat­ion cannot be quickly obtained.

The Supreme Court said it would suspend its declaratio­n of the law’s invalidity for 12 months “to afford Parliament the time needed to examine and redraft the provision.”

The decision comes after the court dismissed the appeal of a group of B.C. men who were involved in the kidnapping of a convicted drug lord. They had argued that their charter rights were violated by the intercepti­on, through police wiretaps, of their private phone calls to Peter Li’s daughter when they were holding her father for ransom.

Li was held and tortured for 25 days in 2006 by six men. They also kidnapped his wife and friend.

Yat Fung Albert Tse, Nhan Trong Ly, Daniel Luis Soux, Myles Alexander Vandrick and Viet Bac Nguyen were found guilty in 2010 of extortion, kidnapping and unlawful confinemen­t.

Huong Dac Doan was found guilty of unlawful confinemen­t and extortion but not guilty of kidnapping.

The men received sentences ranging from 10 to 18 years.

Liberal public safety critic Francis Scarpalegg­ia said the decision highlights how “proper safeguards must always be in place and that the government of the day must always bear the burden of justifying invasions of privacy.”

Prof. Kent Roach, a constituti­onal law expert at the University of Toronto, called the decision “significan­t.”

“It’s really the first decision that the court said that even in an emergency situation, there has to have some kind of accountabi­lity mechanism,” he said.

Roach said the court hinted that Parliament may tweak the emergency wiretappin­g law to make it mandatory for police to let wiretappin­g subjects know about the investigat­ion 60 or 90 days after it has concluded.

“At that point, it would be up to the person whose privacy has been invaded to decide whether he or she wants to take some remedial action, like bringing a lawsuit,” he said.

Natalie Des Rosiers, general counsel of the Canadian Civil Liberties Associatio­n, said it’s difficult to know how many warrantles­s search-and-seizures are occurring in Canada.

“That’s the reason why the court intervenes here ... There’s no way the public, the court or the minister could know how often it is being used because there is no obligation to report anywhere about whether it has been used or not,” she said.

Meanwhile, police groups welcomed the ruling but noted some caveats.

Toronto Police Associatio­n president Mike Mccormack said the union agrees with the court’s suggestion of post-investigat­ion notificati­ons and legislatio­n changes as long as public safety and protection of property are not “outweighed by protecting the rights of a criminal.”

“The whole point of a quick process of an emergency wiretap is to do it quickly and efficientl­y. Our concern is if they made it too cumbersome, that would cause a delay in an emergency situation which could jeopardize somebody’s safety,” he said.

Ron Bain, executive director of the Ontario Associatio­n of Chiefs of Police, said the ruling confirmed the need for emergency provisions “to do the kind of work the police need to do.”

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Jack Harris

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