Critics say ruling may impact snooping bill
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.”