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When do wiretaps become a violation of Section 8?

Updated: Nov 17, 2023

What are your Section 8 rights?

Section 8 of the Canadian Charter of Rights and Freedoms offers protection against unreasonable search and seizure for all citizens. This right provides Canadians with their major source of constitutionally protected privacy rights and safeguards citizens from unwarranted state intrusions into their personal interests. The intent of section 8 is to avoid unwarranted searches of individuals prior to their occurrence, as opposed to addressing violations after the fact.

Everyone has the right to be secure from unreasonable search and seizure, according to Section 8 of the Canadian Constitution.

Any property found or seized through a violation of an individual's section 8 rights can be excluded as evidence under section 24 (2).

When may authorisation for a wiretap be granted?

Section 186 (1) specifies the two requirements for the issuance of an authorisation. The issuing judge must be convinced of the following:

(a) that it would be in the best interests of the administration of justice to do so; and 

(b) that other investigative procedures have been tried and have failed, other
investigative procedures are unlikely to succeed, or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using other investigative procedures.

The section 186 (1)(a) "best interests of the administration of justice" criterion has been read as mandating the "reasonable and probable grounds" standard. The issuing judge must be convinced that the affidavit provides reasonable and probable grounds to believe that the specified offence or offences are being committed or have been committed, and that the interceptions will provide evidence of these offences.

Other investigative procedures pertaining to section 181 (1)(b) include interviews with designated targets or associates, recent media coverage, and interviews with people of interest connected to the investigation.

Scope of the wiretap test

In R v. Muddei, the court explained the wiretap test and emphasised the repercussions of failing to follow proper procedure. According to Muddei, whether an authorisation can be issued is a legal question with just one acceptable response. This court has established that, if required by police investigative tactics, it is conceivable for a person implicated in a specific crime committed years ago to interact with individuals who had involvement or knowledge in that crime. However, this potential alone is insufficient to justify the authorisation to wiretap a person's private conversations. If this were the case, individuals whom the police may reasonably believe to be suspects of a crime that occurred years ago would continue to be subject to serious invasions of their privacy by the state so long as the investigation remained active, and the police could conceivably identify communications relevant to the crime.

If an affidavit fails to provide a basis upon which a judge could conclude that there were reasonable grounds to believe that the interceptions would provide evidence of the crime, then the authorisation under section 186(1) does not exist, and the interception will violate the accused's section 8 rights. In addition, the investigative necessity requirement of section 186(1)(b) must reflect the status of the investigation at the time the application was submitted, not years earlier. When authorities are seeking to breathe new life into an old investigation, an authorisation is neither the final nor the first choice.

Admissibility of the obtained evidence

Concerning section 24(2) and the admission of evidence, the court must weigh the results of three lines of investigation.

– the seriousness of the Charter-infringing state conduct;

– the impact of the breach of the Charter-protected interests of the accused; and

– society’s interest in an adjudication on the merits.

The outcome of section 24(2) investigation depends heavily on the correct characterization of the Charter-violating state conduct's seriousness. If it is determined that the inquiries favour exclusion, then it is appropriate to exclude the evidence from trial.

Contact Bhardwaj Law Professional Corporation today at 416.747.7777 or and empower yourself with the legal representation you deserve.



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