Wakeling v. United States of America  (Constitutional law — Charter of Rights — Search and seizure — Extradition)

On appeal from the judgment of the Court of Appeal for British Columbia, 2012 BCCA 397, affirming a decision of Ross J., 2011 BCSC 165. 

The RCMP lawfully intercepted private communications between W and others that revealed a plot to transport drugs into the United States of America. The wiretap information was disclosed to U.S. authorities, who used it to seize a large quantity of ecstasy pills at a border crossing. The U.S. requested W’s extradition. At the extradition hearing, W submitted that legislation authorizing the disclosure violates ss. 7 and 8 of the Canadian Charter of Rights and Freedoms, and the intercepted communications should not be admitted as evidence. The extradition judge rejected W’s arguments and issued a committal order. The Court of Appeal dismissed the appeal.

HELD (4:3): The appeal should be dismissed.

Per LeBel, Rothstein and Moldaver JJ.:

The ability to share information between law enforcement agencies facilitates the effective investigation of domestic and multi-jurisdictional crime. Part VI of the Criminal Code sets out a comprehensive scheme intended by Parliament to exclusively govern the interception and use of private communications for law enforcement purposes. Therefore, there is no need to consider the constitutionality of s. 8(2) (f) of the Privacy Act . Section 193(2) (e) of the Criminal Code is the governing provision in this case. Although not structured as an explicit authorizing provision, it implicitly authorizes cross-border disclosure of lawfully intercepted wiretap information. Accordingly, the arguments raised by W properly go to the constitutionality of s. 193(2) (e).

Section 8 of the Charter is engaged. Although a disclosure is not a search within the meaning of s. 8, s. 8 protects wiretap targets at both the interception and disclosure stages under Part VI of the Criminal Code . Wiretap interceptions are highly invasive and pose heightened privacy concerns. There is a residual, albeit diminished, expectation of privacy in wiretap information after it has been lawfully collected. W’s s. 7 arguments need not be addressed. They are subsumed under the s. 8 analysis.

In order for a search to be reasonable under s. 8, it must be authorized by law, the law itself must be reasonable, and the search must be carried out in a reasonable manner. This same framework applies, mutatis mutandis, to disclosures made pursuant to s. 193(2) (e). Applying this framework to the facts at hand, there is no violation of s. 8. The disclosure in this case was lawfully authorized bys. 193(2) (e), and the legislation, taken as a whole, is reasonable. Furthermore, there is no evidence that the manner of disclosure was unreasonable.

With respect to the first step of the s. 8 framework, the disclosure in this case was authorized by law. A disclosure will be authorized by law where it is carried out in accordance with the procedural and substantive requirements the law provides. Section 193(2) (e) requires that the recipient must be a person or authority with responsibility in a foreign state for the investigation or prosecution of offences, and the disclosure must be intended to be in the interests of the administration of justice in Canada or elsewhere. The disclosure in this case was provided to U.S. law enforcement authorities for the purpose of foiling a cross-border drug smuggling operation. In making the disclosure, Canadian authorities intended to advance the administration of justice in Canada and the United States.

Turning to the second step, section 193(2) (e) is a reasonable law. First, it is not unconstitutionally overbroad. It limits the type of information that may be disclosed, the purpose for which it may be disclosed, and the persons to whom it may be disclosed. Second, it is not unconstitutionally vague. While “the administration of justice “as used in s. 193(2) (e) is a broad concept, it is not one that so lacks in precision as to give insufficient guidance for legal debate. In this context, the phrase “the administration of justice” means that the disclosure must be for a legitimate law enforcement purpose.

Third, s. 193(2) (e) is not unconstitutional for lack of accountability or transparency mechanisms. Part VI of theCriminal Code contains numerous privacy safeguards. The judicial authorization relating to the initial interception requires privacy interests to be balanced with the interests of law enforcement. The interception of communications is also subject to notice and reporting requirements. Additionally, accountability has been built into the disclosure scheme itself. A disclosure that fails to comply with s. 193(2) (e) can lead to criminal charges against the disclosing party or result in the exclusion of improperly disclosed evidence at a subsequent proceeding. This provides a powerful incentive for Canadian authorities to comply with s. 193(2) (e). Finally, although not constitutionally mandated in every case, adherence to international protocols and the use of caveats or information-sharing agreements may be relevant in determining whether a disclosure was intended to advance the administration of justice, and therefore was authorized by s. 193(2) (e).

As regards the third step of the s. 8 framework, the use of protocols, caveats, or agreements may also be relevant to assessing whether the disclosure was carried out in a reasonable manner. The disclosure in this case was carried out in a reasonable manner. Nothing suggests that the police acted unreasonably. However, in different factual contexts, there may be significant potential dangers posed by the disclosure of intercepted communications to foreign authorities. Where a disclosing party knows or should have known that the information could be used in unfair trials, to facilitate discrimination or political intimidation, or to commit torture or other human rights violations, s. 8 requires that the disclosure, if permissible at all, be carried out in a reasonable manner. In the most serious cases, s. 8 will forbid disclosure. In other cases, information-sharing protocols or caveats may sufficiently mitigate the risks.

Per McLachlin C.J.:

The only issue on this appeal is whether the disclosure of the intercepted communications violated s. 8 of the Charter, and, if so, whether the evidence should have been excluded under s. 24(2) . It is not necessary to consider the constitutionality of s. 193(2) (e), s. 193(2) (b) or the Privacy Act to answer that question. W has not shown an infringement of his s. 8 rights. The individual whose communications are lawfully intercepted under a valid and reasonably executed warrant cannot complain that use of the information for law enforcement breaches his right to privacy. This principle is not confined to the use of information in Canada. Sharing the information for purposes of law enforcement does not violate s. 8. Sections 7 and 8 of the Charter protect against unreasonable uses of lawfully intercepted information but in this case, where the information was disclosed to U.S. authorities for law enforcement purposes, these residual concerns about unreasonable use do not arise. W’s rights were not violated.

Section 193(2) (e) does not change this. It is not an authorizing provision. It does not confer a power on Canadian authorities to share information with foreign counterparts. The provision operates by exempting officers from prosecution where they disclosed intercepted communications under their common law powers. Section 193(1) of the Criminal Codemakes it an offence to disclose intercepted private communications without consent. Section 193(2) (e) is an exemption from that offence. It preserves the common law power of law enforcement authorities to share lawfully obtained information for purposes of law enforcement both domestically and abroad. The exception prevents law enforcement officers from being convicted for using information obtained under warrant for purposes of law enforcement. It is therefore unnecessary to opine on the constitutionality of s. 193(2) (e).

Per Abella, Cromwell and Karakatsanis JJ. (dissenting):

Section 193(2) (e) violates s. 8 of the Charter in a manner that is not justified under s. 1. It permits disclosure of wiretapped information to foreign officials without safeguards or restrictions on how the information may be used and without accountability measures for this broad state power. Nothing restrains foreign law enforcement officials from using this highly personal information in unfair trials or in ways that violate human rights norms, from publicly disseminating the information, or from sharing it with other states. The torture of Maher Arar in Syria provides a chilling example of the dangers of unconditional information sharing. Section 8 requires that when a law authorizes intrusions on privacy, it must do so in a reasonable manner. A reasonable law must have adequate safeguards to prevent abuse. It must avoid intruding farther than necessary. It must strike an appropriate balance between privacy and other public interests. Section 193(2) (e) falls short on all three counts. The permitted disclosure to foreign officials without safeguards renders the Part VI wiretap regime of the Criminal Code unconstitutional. The appropriate remedy is to strike the words “or to a person or authority with responsibility in a foreign state” from s. 193(2) (e). It is unnecessary to consider the constitutionality of s. 8(2) (f) of the Privacy Act or arguments with respect to s. 7 of theCharter.

Balancing the state’s interest in a search and the public interest in protecting privacy involves asking what level of privacy protection we are entitled to expect. International cooperation and information-sharing are essential to law enforcement. Canadian interests are served by appropriate information-sharing with other jurisdictions. Timely disclosure will often be critical in the investigation of serious transnational crimes. However, when information is shared across jurisdictional lines, safeguards that apply in domestic investigations lose their force. Section 193(2) (e) does nothing to prevent the use of disclosed information in proceedings which fail to respect due process and human rights. The requirement of prior judicial authorization does not provide sufficient protection against inappropriate future use. The failure to require caveats on the use of disclosed information is unreasonable. Caveats or standing agreements would not undermine the objectives of the wiretap scheme. They are commonplace in international law enforcement cooperation and provide some assurance that disclosed information will only be used in accordance with respect for due process and human rights.

For a law to provide reasonable authority for a search or seizure, it must include some mechanism to permit oversight of state use of the power. Accountability mechanisms deter and identify inappropriate intrusions on privacy. None of the safeguards in Part VI apply to disclosure to foreign officials. Improper or hazardous information sharing is unlikely to come to light without record-keeping, reporting or notice obligations. It is for Parliament to decide what measures are most appropriate, but, at a minimum, the disclosing party should be required to create a written record and to make the sharing known to the target or to government.

The infringement of s. 8 of the Charter is not justified under s. 1. The objective of international cooperation in law enforcement is pressing and substantial, and disclosure of wiretap information is rationally connected to that objective. However, s. 193(2) (e) as it is presently drafted interferes with privacy to a greater extent than necessary. The inclusion of accountability mechanisms and limits on subsequent use would cure the constitutional deficiencies without undermining. 

Reasons for Judgment by Moldaver J., concurring reasons by the Chief Justice, dissenting reasons by Karakatsanis J. Neutral citation:  2014 SCC 72. No. 35072.