Tell Them Carefully

Last week, the Supreme Court issued its decision in Wakeling v. United States of America, 2014 SCC 72, upholding the release by Canadian authorities to the United States of recordings of Mr. Wakeling’s communications, which had been wiretapped by the RCMP acting pursuant to a warrant, and which the Americans used as a basis for requesting his extradition on drug charges. Three judges (Justices Moldaver, LeBel and Rothstein) found that the release of wiretaps to foreign states does not infringe the right, protected by section 8 of the Charter, “to be secure against unreasonable search or seizure”; one (the Chief Justice) found that section 8 was not engaged at all; and three (Justices Karakatsanis, Abella, and Cromwell) found that it was indeed infringed.

Section 193 of the Criminal Code prohibits the release of “intercepted” “private communication[s],” subject to a number of exceptions. One of these, par. 193(2)(e), applies

where disclosure is made to a peace officer or prosecutor in Canada or to a person or authority with responsibility in a foreign state for the investigation or prosecution of offences and is intended to be in the interests of the administration of justice in Canada or elsewhere.

Mr. Wakeling argued that this exception suffered from a number of constitutional defects: it was, he said, overbroad and vague, and lacked any accountability mechanisms. (He raised some other arguments as well, which all the judges rejected, and which I will not address here.)

***

Before getting there, however, he had to establish that the Charter was engaged at all. The Chief Justice thought that it was not, because “sharing information obtained under warrant for law enforcement purposes with foreign law officers does not violate s. 8,” [96] except in cases where the disclosure will used abusively (for example “for rendition to a foreign country … or public titillation” [95] or to enable torture or mistreatment).

Justice Moldaver, however, accepted that s. 8 of the Charter was engaged, despite the fact that the disclosure of an already-intercepted communication is not a “search” (as Mr. Wakeling claimed). In his view,

[t]he highly intrusive nature of electronic surveillance and the statutory limits on the disclosure of its fruits suggest a heightened reasonable expectation of privacy in the wiretap context. Once a lawful interception has taken place and the intercepted communications are in the possession of law enforcement, that expectation is diminished but not extinguished. [39]

The test for deciding whether the disclosure infringes s. 8, similar to the one applicable to a search, is

(1) whether the Impugned Disclosure was authorized by law; (2) whether the law authorizing the Impugned Disclosure is reasonable; and (3) whether the Impugned Disclosure was carried out in a reasonable manner. [42]

In this case, the first prong of the test was obviously satisfied, and the focus was almost entirely on the second.

Mr. Wakeling’s first arguement against the reasonableness of par. 193(2)(e) of the Criminal Code was that it was overbroad in authorizing “near-limitless” disclosures. Justice Moldaver rejected this claim because the Code “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” [55]. He also rejected additional arguments concerning the scope of par. 193(2)(e) made by the BC Civil Liberties Association. To the latter’s claim that it was not reasonable to authorize disclosure in the interest of the administration of justice in a foreign state rather than in Canada, Justice Moldaver answered that Canada also benefits from international co-operation, which has to be reciprocal. To the assertion that authorizing disclosure for improper purposes, or with knowledge that it would be used to torture or otherwise abuse people, he replied that “the disclosing party must subjectively believe that disclosure will further the interests of justice in Canada and/or the foreign state. The belief must be an honest one, genuinely held” [59], a criterion that would probably not be met if the disclosing party does not know how the information disclosed would be used, and still less if it know that it will be used to commit human rights violations.

Mr. Wakeling’s next argument was that the requirement that disclosure to foreign authorities be for the purposes of “the administration of justice” is unconstitutionally vague. Not so, said Justice Moldaver. “Administration of justice,” he said, “means that disclosure must be for a legitimate law enforcement purpose,” and that’s precise enough to guide legal debate.

Finally, Mr. Wakeling contended that par. 193(2)(e) did not provide sufficient accountability mechanisms, whether notice to the target of the wiretap, record-keeping, reporting to Parliament, or mandatory imposition of conditions on the ways in which the recipients of disclosure would use the information in question (known as “caveats”). Justice Moldaver rejected these claims, on the basis that the existing accountability mechanisms are enough. Additional safeguards may be desirable and worth encouraging; their existence or application to a particular case may even be relevant to determining whether a given disclosure was authorized by law or reasonable; but they are not constitutionally required. Justice Moldaver seems to have been concerned about imposing, as a constitutional matter, excessively rigid rules in the area of foreign relations and co-operation between law enforcement agencies. He concluded this part of his reasons by

emphasizing that this Court’s task is not to determine whether there may be better or additional accountability measures or stricter language that could be put in place with respect to the cross-border disclosure of wiretap communications. Any attempt to micromanage Parliament in this context must be approached with great care. The task at hand is to determine whether s. 193(2)(e) passes constitutional muster. [77]

It is worth noting here that, although she did not formally reach this question because of her conclusion that s. 8 was not engaged at all, the Chief Justice opined that “[t]hese are difficult questions more redolent of policy than of law. Parliament has considered them and answered with the offence provisions and exemptions of s. 193,” [100] and suggested that Parliament’s choices deserve deference.

The final prong of the s. 8 test asks whether the disclosure at issue was itself carried out in a reasonable manner. There was no real dispute that this requirement was satisfied here. However, Justice Moldaver pointed out that in other cases, “[w]here 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” [80], the requirement that disclosure be carried out in a reasonable manner could entail the imposition of caveats or other precautionary measures ― or, in the more extreme case, may operate to prevent disclosure at all.

For her part, Justice Karakatsanis disagreed with Justice Moldaver on the matter of accountability requirements. She worried that “[w]hen information is shared across jurisdictional lines, the safeguards that apply in domestic investigations lose their force,” which “can create serious risks to individual privacy, liberty and security of the person interests.” [118] To mitigate these concerns, Justice Karakatsanis would have made mandatory the imposition of caveats that would

provide some assurance to our law enforcement agencies that disclosed information will only be used to advance legitimate law enforcement objectives, in accordance with respect for due process and human rights and will not be shared further except as agreed to by the disclosing party. [133]

Furthermore, Justice Karakatsanis would have required the implementation of some form of record-keeping and notice-giving mechanisms applicable specifically to cross-border disclosures. The fact that such mechanisms apply to the general fact of the interception of communications was not enough, in her view, because cross-border disclosure comes with its own set of privacy risks. However, Justice Karakatsanis did not specify the form that such mechanisms ought to take, leaving it to Parliament to figure this out.

Having found that par. 193(2)(e) is not a “reasonable” law and thus infringes s. 8 of the Charter, Justice Karakatsanis summarily rejected the possibility that it might be justified under s. 1, on the basis that it is minimally impairing, since alternatives more respectful of privacy interests are available to Parliament.

***

I do not have any particularly deep thoughts about the substance of the Supreme Court’s decision. (Craig Forcese does, mostly about what it means for Canada’s security services, and what Parliament should do to address the somewhat uncertain situation in which they now find themselves. Do read what he has to say.) I will, however, make a couple of observations.

The 1-3-3 split in Wakeling, following similar multi-way splits in cases such as R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 SCR 3, seems to indicate that s. 8 and privacy rights more broadly remain an area on which the Supreme Court, so inclined towards consensus on most topics, still cannot agree. Yet it is worth noting that the splits do not involve consistent “camps” that would suggest irreconcilable differences of views. Indeed, in Wakeling, Justices Moldaver and Karakatsanis go out of their way to acknowledge each other’s concerns ― to an extent remarkable even by the Court’s usually polite standards.

This, to me, seems to suggest that we are in an area of reasonable disagreement between people debating in good faith. And that, in turn, might mean that Justice Moldaver’s and the Chief Justice’s appeals for deference to Parliament are especially appropriate. At least insofar as Parliament considers the interests at stake and tries to strike a balance between them, judges should probably hesitate before upsetting this balance. This is all the more so if they have limited evidence about how cross-border information-sharing actually operates, which may well have been the case in Wakeling. That said, Parliament should not get the benefit of deference if it fails to study and debate the issues before it with some degree of care and honesty. Unfortunately, the legislative practices of the current government do not inspire much confidence on that front.

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