In its Nov. 14, 2014 decision in Wakeling v. United States of America,
2014 SCC 72, the Supreme Court of Canada (SCC) held that s. 8
of the Canadian Charter of Rights and Freedoms (the
Charter) (the right to be free from unreasonable search
and seizure) applies to the disclosure of communications obtained
through a wiretap to police authorities in a foreign
In the course of a drug investigation, the RCMP obtained a
warrant to intercept Mr. Wakeling's telephone conversations.
When the wiretap disclosed communications relating to an apparent
plan to smuggle drugs across the Canada-U.S. border, the RCMP
shared the communications with U.S. law enforcement officials
pursuant to a provision of the Criminal Code (s.
193(2)(e)) that allows the police to disclose intercepted
communications to foreign authorities where the disclosure is
"intended to be in the interests of the administration of
justice". The U.S. authorities used the information to seize
the drugs at the border and then applied for Mr. Wakeling's
extradition to the U.S.
The issue before the SCC was whether and, if so, how s. 8 of the
Charter applied to the disclosure of the communications.
While the judges of the Court split three different ways on how to
approach the analysis, they all agreed that s. 8 of the
Charter did apply to the disclosure of the
The majority of the judges found that the disclosure of the
communications by the RCMP was appropriate in the circumstances of
this case. The dissenting judges, on the other hand, invoked the
case of Maher Arar (in which information provided by the RCMP to
U.S. authorities led to Mr. Arar's deportation to Syria where
he was detained without trial and tortured) in expressing their
concern that the Criminal Code provision allowed
information about Canadians to be shared with police authorities in
other countries without safeguards to guarantee that the
information would not be used for abusive purposes.
Although the decision upheld the Criminal Code
provision that allows wiretap evidence to be shared with foreign
authorities without additional judicial oversight, it nonetheless
signals a potentially important development in privacy law, as the
Court's finding that Charter rights are engaged by the
disclosure of intercepted communications is an acknowledgement of
the significant privacy interests that may be engaged by the
disclosure (and not just the gathering) of personal
The SCC's decision in Wakeling is therefore
consistent with the general trend towards greater awareness of the
sensitivity of disclosing information about individuals, and could
affect decisions about the disclosure of personal information in
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