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 (theCharter) (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 jurisdiction.
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 communications.
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 information.
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 other contexts.