Amber Aamer
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Background and facts
This case involved the exchange of information between US and Canadian law enforcement. Andrew Gordan Wakeling and several other people's private communications were legally intercepted by the Royal Canadian Mountain Police (RCMP) through wiretaps, which revealed a plan to transport cocaine into the United States of America. The U.S. officials were given the information from the wiretap, which allowed them to seize a sizable amount of ecstasy tablets at a U.S border crossing.
In response to this evidence, the U.S government initiated the process of requesting Mr. Wakeling's extradition. However, during his extradition proceedings, Mr. Wakeling contested the constitutionality of the disclosed evidence. He argued that the provisions outlined in section 193(2)(e) of the Criminal Code, which were used to justify the wiretap, violated his rights under sections 7 and section 8 of the Charter of Rights and Freedoms (Charter).
Mr. Wakeling's main contention was that section 193(2)(e) of the Criminal Code was excessively broad, lacking clarity, and lacked proper accountability procedures. He criticized the provision for potentially allowing the interception and disclosure of an unrestricted amount of communication. Nevertheless, both the extradition judge and the British Columbia Court of Appeal rejected this argument. Mr. Wakeling appealed the decision to the Supreme Court of Canada.
Decisions, Reasoning, and Analysis
All Supreme court Justices conclude s. 7 of the Charter is not engaged within this case. In accordance with Justice Moldaver's perspective, the disputed disclosure brought s. 8 of the Charter into consideration. Rather than categorizing the disclosure as a mere "search," he determined that s. 8 safeguards individuals at both the stages of interception and disclosure. This approach is rooted in the potential risks associated with wiretaps. The increased privacy concerns tied to wiretaps have led to an enduring and residual expectation of privacy regarding wiretap information, even after its lawful acquisition. Justice Moldaver expressed this expectation of privacy as having "diminished but not vanished". Justice Moldaver employed the Collins framework to assess whether the intrusion upon privacy was reasonable and therefore in accordance with s. 8. His ruling on the initial part of the evaluation indicated that the disclosure was authorized by law. In this particular instance, there was no dispute concerning whether s. 193(2)(e) allowed for the challenged disclosure.
The issue emerged during the application of the second facet of the assessment, which revolved around the reasonableness of the statute permitting the disclosure. Central to this was the question of whether s. 193(2)(e) could be deemed irrational due to the inadequacy of accountability and transparency measures. Justice Moldaver asserted that the absence of specific safeguards does not automatically negate the consideration of reasonableness. Instead, it's crucial to analyze the extent of search authority and the accompanying protections. In his efforts to enhance the accountability and transparency surrounding s. 193(2)(e) disclosures, Justice Moldaver evaluated various specific proposals, ultimately rejecting them. Nevertheless, he highlighted that individuals subjected to s. 193(2)(e) disclosures are afforded some form of protection beforehand. Wiretaps are explicitly authorized through prior warrants, and in cases where such warrants are absent, the wiretap target is informed after the fact.
Justice Moldaver determined that while it would be prudent for the police to maintain records of accessing information, this action doesn't carry a constitutional mandate. He believed that the accountability mechanism provided by the criminal penalties stated in s. 193 of the Criminal Code for unauthorized disclosure was sufficient. The potential for criminal punishment serves as an incentive to accurately document the details of information divulged, recipients, and the rationale behind it. Moldaver's ruling clarified that s. 8 does not obligate the government to secure assurances from foreign law enforcement agencies regarding non-misuse or non-sharing of provided material with third parties. Instead, the relevance of such disclaimers comes into play when determining the lawfulness of a specific disclosure under s. 193(2)(e) and whether it genuinely contributes to the advancement of justice, as per the court's interpretation.
Thus, Moldaver concluded that none of the proposed measures for accountability and transparency were obligatory. He deemed the phrasing of Section 193(2)(e) to be reasonable. His rationale was that it falls outside the purview of this Court to determine whether enhanced accountability measures, additional openness, or more stringent language should be introduced concerning the cross-border divulgence of wiretap communications.
Justice Karakatsanis concurred with Moldaver in that s. 8 was engaged and that the law had permitted the contested disclosure. However, they disagreed on whether or not s. 193(2)(e) was reasonable. She contends that s. 8 needs parliament to place limitations on how foreign authorities may use the information they receive, and to adopt accountability procedures to deter inappropriate disclosure and permit oversight.
Karakatsanis highlighted a widely recognized criterion in s. 8 jurisprudence: for the prerequisites to be considered reasonable, they should "achieve a proper equilibrium" between safeguarding public interest in privacy and addressing the legitimate requirements of law enforcement. According to Karakatsanis, the equilibrium in this instance lies in balancing the importance of information exchange between foreign law enforcement agencies with the potential for "serious risks to individual privacy, personal liberty, and security" stemming from such information sharing.
The potential of the given information being utilized by third parties in ways that violate human rights is not sufficiently prevented by s. 193(2)(e). Even in cases where Canadian officials follow the guidelines outlined in s. 193(2)(e). There is no assurance that foreign officials will comply with s. 193(2)(e). Karakatsanis concludes that if the process is fatally defective, no amount of faith in the future integrity and restraint of prosecutors and police would preserve it. Therefore, some type of assurances or caveats are needed.
Karakatsanis determined that for the purpose of deterring and identifying unwarranted breaches of privacy, s. 193(2)(e) should encompass a mechanism to enable the monitoring of the state's exercise of power. The detection of illicit or risky disclosures is improbable without the implementation of recordkeeping, reporting, or notification obligations. This applies regardless of whether law enforcement agents subjectively believe such disclosures align with the interests of justice. She concluded that Moldaver's reliance solely on the criminal law's penalties for inappropriate disclosures lacks the adequacy to function as a effective safeguard. It becomes imperative for individuals outside the realm of law enforcement to have the ability to review and challenge their decisions.
According to Justice McLachlin, s. 8 of the Charter was not violated by the transfer of the tapes to U.S officials. The wiretap violated Mr. Wakeling's privacy rights, but it was permitted by a warrant in accordance with s. 8. McLachlin believed that the RCMP was given permission under that warrant to utilize the wiretap recordings for lawful reasons both inside and outside of Canada. Therefore, the entire intent of section 193(2)(e) is to shield law enforcement officials who use their common law authority to communicate information with law enforcement organizations abroad.
Results
The conclusion of the case affirms the rulings which were presented in lower courts and dismiss Wakeling's appeal. The decision of the Supreme Court of Canada suggests that s. 8 of the Charter requires laws that permit privacy intrusions to be reasonable and have proper safeguards to prevent abuse. Such laws should not intrude more than necessary and should strike a suitable balance between privacy and other public interests. However, the specific provision in question, s. 193(2)(e) of the Criminal Code, fails to meet these requirements on all counts.
The proposed remedy is to remove the words "or to a person or authority with responsibility in a foreign state" from s. 193(2)(e) while respecting the intention of allowing law enforcement collaboration within Canada, while invalidating parts of the law inconsistent with the Charter. This solution aligns with the principle of retaining valid parts of legislation while discarding unconstitutional elements. Additionally, the court suggests suspending the effect of this order for a year to provide Parliament with time to amend the relevant legislation to bring it in line with the Charter.
Furthermore, the Crown (representing the government) proposed that if the declaration of invalidity is suspended, a new hearing should address the admissibility of evidence under s. 24(2) of the Charter. The court acknowledges the possibility of awarding a constitutional exemption during the suspension of the declaration of invalidity, which would relieve the appellant (the individual bringing the case) from the impact of the unconstitutional law during the suspension period.
Opinions and Future Implications
The fundamental question changes drastically when determining whether or not certain precautions are required. There would be no need for any accountability or transparency procedures if laws were enforced by machines incapable of acting in bad faith or making mistakes. The Constitution's observance would be assured. A robot might evaluate its justification for doing a search and only move on when justified. Prior judicial approval would be unnecessary. But because courts are aware that people make mistakes, they have enforced procedures that account for these possibilities. Search warrants take into account the fact that occasionally police officers lack the objectivity and distance required to decide whether they have justification for entering a private location.
Courts have taken care to guarantee that independent people are capable of contesting police behaviour in the rare instances where we do not require search warrants for compelling law enforcement reasons. Because of their pinpoint accuracy and narrow, contraband-specific focus, sniffer dog searches are allowed without a prior warrant. But since the search will almost always take place in front of them, the subject of the search might simply oppose it. The target will be aware that it took place. In contrast, the Court acknowledged that the new era of electronic surveillance allows the state to commit a number of privacy violations about which the target will be unaware. In order to ensure that mistakes may be fixed, emergency wiretap instances must also include post-event notice and record-keeping requirements.
Courts will therefore need to decide how to set the "trust threshold" whenever they are asked whether a certain protection is required. But the Supreme Court has yet to specify how it would express this notion or handle its implementation. This case is an important one in terms of finding “flaws” within statutes that define the power and scope of communication that legal authorities hold. The ambiguity is brought forward and challenged in this case in order for it be critically analyzed by law makers and changed to provide citizens and those who abide by and uphold laws with more specific outlines of their roles and abilities within the law.
Bibliography
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Bailey, Jane. "Framed by Section 8: Constitutional Protection of Privacy in Canada."
Canadian Journal of Criminology and Criminal Justice 50, no. 3 (2008), 279-306.
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Curie, Robert J. “Annotation: United States v Wakeling” Criminal Report 15, no. 1 (2015),
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Gavison, Ruth. "Privacy and the Limits of Law." The Yale Law Journal 89, no. 3
(January 1980), 421. doi:10.2307/795891.
Greene, S. “Wakeling v. United States of America.” Criminal Law Quarterly 63, no. 2 (2016),
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Wakeling v The United States of America (The Supreme Court of Canada November 14, 2014).
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