In Canada, it is a criminal offence to intercept private
communications without either (i) the consent of one of the
participants to the communication or (ii) prior judicial
authorization of the interception – with one exception.
Section 184.4 of the Canada Criminal Code permits a
police officer to intercept a private communication, without
consent and without judicial authorization, if the officer has
reasonable grounds to believe that:
a) the interception is immediately
necessary to prevent an offence that would cause serious harm to
any person or to property;
b) one of the parties to the
intercepted communication is either the person who would commit the
offence or the victim or intended victim of the harm; and
c) the situation is so urgent that an
authorization could not, with reasonable diligence, be
However, in R. v. Tse1, the Supreme Court of
Canada held that this exception contravened the right to be free
from unreasonable search or seizure under the Canadian Charter
of Rights and Freedoms because Section 184.4 does not provide
a mechanism for oversight, including notice to persons whose
private communications have been intercepted. Thus, if a criminal
prosecution does not result, the targets of the
"wiretapping" may remain unaware that their
communications were intercepted and never have the opportunity to
challenge the use of Section 184.4. The Court held that the
contravention was not a reasonable limit on the Charter
In response to the decision in R. v. Tse, the Canadian
government has recently amended the Criminal Code,
effective September 24, 20132, to address the Supreme
Court of Canada's concerns. The amendments:
a) require the Minister of Public
Safety and Emergency Preparedness and each provincial Attorney
General to report on interceptions of private communications made
under Section 184.4; and
b) provide that a person whose
private communication has been intercepted under Section 184.4 must
be notified within 90 days (subject to extension if an
investigation is ongoing); and
c) limit Section 184.4 interceptions
to the (still very lengthy) list of offences set out in Section 183
of the Criminal Code.
2012] 1 S.C.R. 531.
2. Response to the Supreme Court of Canada Decision in
R. v. Tse Act, Bill C-55, Royal Assent, March 24, 2013 (41st
Parliament, First Session).
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