R. v. Duarte

R. v. Duarte
Collection
Supreme Court Judgments
Date
1990-01-25
Report
[1990] 1 SCR 30
Case number
20542
Judges
Dickson, Robert George Brian; Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; McLachlin, Beverley
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Evidence
Notes
SCC Case Information: 20542
Decision Content
R. v. Duarte, [1990] 1 S.C.R. 30
Mario Duarte Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General for Ontario and
the Attorney General of Quebec Interveners
indexed as: r. v. duarte
File No.: 20542.
1989: October 4, 5; 1990: January 25.
Present: Dickson C.J and Lamer, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and McLachlin JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search and seizure ‑‑ Evidence obtained by electronic surveillance conducted without authorization ‑‑ Conversation recorded with consent of a party to it ‑‑ Recording of conversation entered into evidence ‑‑ Whether s. 178.11(2)(a) infringed Charter right to freedom from unreasonable search and seizure ‑‑ If so, whether or not it was justified by s. 1 of the Charter ‑‑ Whether unauthorized interception by police, even if not a criminal offence, would violate s. 8 of the Charter ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 178.11(1), (2)(a), 178.16(1)(a), (b) ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 8 .
Constitutional law ‑‑ Charter of Rights ‑‑ Evidence -- Admissibility -- Evidence obtained as result of breach of Charter inadmissible if administration of justice would be brought into disrepute ‑‑ Evidence obtained as result of unintentional Charter breach ‑‑ Whether or not admission of evidence would bring administration of justice into disrepute ‑‑ Canadian Charter of Rights and Freedoms, s. 24(2) .
Evidence ‑‑ Admissibility ‑‑ Evidence obtained by electronic surveillance conducted without authorization ‑‑ Conversation recorded with consent of a party to it ‑‑ Recording of conversation entered into evidence ‑‑ Whether s. 178.11(2)(a) infringed Charter right to freedom from unreasonable search and seizure ‑‑ If so, whether or not it was justified by s. 1 of the Charter ‑‑ Whether unauthorized interception by police, even if not a criminal offence, would violate s. 8 of the Charter ‑‑ Whether or not admission of evidence, if obtained in breach of Charter , would bring administration of justice into disrepute.
Criminal Law ‑‑ Electronic surveillance ‑‑ Evidence obtained by electronic surveillance conducted without authorization ‑‑ Conversation recorded with consent of a party to it ‑‑ Recording of conversation entered into evidence ‑‑ Whether s. 178.11(2)(a) infringed Charter right to freedom from unreasonable search and seizure ‑‑ If so, whether or not it was justified by s. 1 of the Charter ‑‑ Whether unauthorized interception by police, even if not a criminal offence, would violate s. 8 of the Charter .
As part of an investigation into drug trafficking, the police rented an apartment for a police informer who was working with an undercover police officer. The apartment was equipped with audio‑visual recording equipment installed in a wall. Prior to the installation of the equipment, the informer and the undercover officer consented to the interception of their conversations, pursuant to the provisions of s. 178.11(2) (a) of the Criminal Code . Appellant discussed a cocaine transaction with the undercover officer and the informer at the apartment. The undercover officer made notes of these and a subsequent conversation based upon a review of the tapes of the conversations.
The appellant was later charged with conspiracy to import a narcotic. At trial, he challenged, on a voir dire, the validity of s. 178.11(2)(a) of the Code which excepts the interception of conversations to which one of the parties consents from the prohibition of unauthorized electronic surveillance. The trial judge held that the actions of the authorities infringed the appellant's rights to be secure from unreasonable search and seizure under s. 8 of the Charter and that the evidence thereby obtained was held not admissible. The Crown appealed to the Ontario Court of Appeal which unanimously allowed the appeal, set aside the acquittal and ordered a new trial.
The constitutional questions stated in this Court queried whether s. 178.11(2) (a) of the Criminal Code infringed or denied the rights and freedoms guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms , and if so, whether or not it was justified by s. 1 of the Charter . During argument, the position was advanced that the constitutionality of s. 178.11(2) (a) might not really arise in that this provision was really an exception to the criminal prohibition against the interception of private communications set forth in s. 178.11(1) . Action contemplated by that exception could not be made criminal by a Charter attack on its validity. The real question, then, became whether, even though such action may not constitute a criminal offence, it would nonetheless, when undertaken by an instrumentality of the state, such as the police, violate s. 8 of the Charter . Finally, if this action was indeed an unjustifiable infringement of a Charter right, were communications intercepted as a result of this practice admissible under s. 24(2) of the Charter ?
Held: The appeal should be dismissed. Section 178.11(2) (a) of the Criminal Code , does not infringe or deny the rights and freedoms guaranteed by s. 8 of the Charter , but the interception of private communications by an instrumentality of the state with the consent of the originator or intended recipient thereof, without prior judicial authorization, does infringe the rights and freedoms guaranteed by s. 8 . It was not necessary to answer the second question.
Per Dickson C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and McLachlin JJ.: Surreptitious electronic surveillance of the individual by an agency of the state constitutes an unreasonable search or seizure under s. 8 of the Charter .
The regulation of electronic surveillance is not directed at protecting a person from the risk that someone will repeat his words but from the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit his words. If the state were free, at its sole discretion, to make permanent electronic recordings of a person's private communications, there would be no meaningful residuum to the right to live free from surveillance. A reasonable balance must therefore be struck between the right of individuals to be left alone and the right of the state to intrude on privacy in the furtherance of its responsibilities for law enforcement.
Part IV.1 of the Code strikes an appropriate balance. It meets the high standard of the Charter which guarantees the right to be secure against unreasonable search and seizure by subjecting the power of the state to record private communications to external restraint and requiring that action to be justified by application of an objective criterion. The imposition of an external and objective criterion affords a measure of protection to any citizen whose private communications have been intercepted.
Privacy may be defined as the right of the individual to determine when, how, and to what extent he or she will release personal information. A reasonable expectation of privacy demands that an individual may proceed on the assumption that the state may only violate this right by recording private communications on a clandestine basis when it has established to the satisfaction of a detached judicial officer that an offence has been or is being committed and that interception of private communications stands to afford evidence of the offence.
The assessment of the constitutionality of a search and seizure must focus on its `reasonable' or `unreasonable' impact on the subject of the search or the seizure, and not simply on its rationality in furthering some valid government objective. Applying this standard, if the surreptitious recording of private communications is a search and seizure within the meaning of s. 8 of the Charter , it is because the law recognizes that a person's privacy is intruded on in an unreasonable manner whenever the state, without a prior showing of reasonable cause before a neutral judicial officer, arrogates to itself the right surreptitiously to record communications that the originator expects will not be intercepted by anyone other than the person intended by its originator to receive them.
By contrast to the general provisions on electronic surveillance, the Code places no restriction on participant surveillance, i.e., where one of the parties to the conversation consents. The police may employ this practice in their absolute discretion, against whom they wish and for whatever reasons they wish, without any limit as to place or duration. There is a total absence of prior judicial supervision of this practice.
There is no logical distinction between third party electronic surveillance and participant surveillance. Where persons have reasonable grounds to believe their communications are private communications, the unauthorized surreptitious electronic recording of those communications is an intrusion on a reasonable expectation of privacy. Our perception that we are protected against arbitrary interceptions of private communications ceases to have any real basis once it is accepted that the state is free to record private communications, without constraint, provided only that it has secured the agreement of one of the parties to the communication. The risk of being recorded is not simply a variant of the risk of having one's words disclosed by the person to whom we speak. Surreptitious electronic recording annihilates the very important right to choose the range of our listeners.
Whether or not to allow participant surveillance is a policy decision fraught with the gravest of implications. Countenancing participant surveillance, strikes not only at the expectations of privacy of criminals but also undermines the expectations of privacy of all those who set store on the right to live in reasonable security and freedom from surveillance, be it electronic or otherwise. It has long been recognized that this freedom not to be compelled to share our confidences with others is the very hallmark of a free society. The sole effect of requiring a warrant would be to ensure that police restrict "participant monitoring" to cases where they can show probable cause for a warrant. It would not hamper their ability to combat crime effectively.
Participant surveillance infringes s. 8 of the Charter . It leaves all the conditions under which conversations are intercepted to the sole discretion of the police and therefore cannot be held to meet the definition of "reasonable" in the context of s. 8 of the Charter . Its large‑scale use by police could by‑pass any judicial consideration of the entire police procedures and make the entire scheme in Part IV.1 of the Code largely irrelevant. Indeed, the constitutionality of Part IV.1 of the Code is predicated on the numerous safeguards designed to prevent the possibility that the police view recourse to electronic surveillance as a routine administrative matter.
The simple fact that the police could employ the same investigatory tool with or without a warrant destroys any argument that participant surveillance can be upheld as a reasonable limit to the right to be secure from unreasonable search and seizure.
Section 178.16(1) of the Code makes certain types of evidence inadmissible. It does not make a communication admissible. If it is admissible, it is by virtue of the common law. The communication would be admissible as relevant evidence at common law, but since it was obtained contrary to s. 8 , it will not, by virtue of s. 24(2) of the Charter , be admissible if to do so would bring the administration of justice into disrepute. Many factors can be considered in determining if the administration of justice will be brought into disrepute. Of cardinal importance in assessing these factors is the fairness of the process, and in particular, its impact on the fairness of the trial.
The breach here infringed an important Charter right and the evidence could have been obtained without breaching the Charter . It was, however, in no way deliberate and it stemmed from an entirely reasonable misunderstanding of the law by the police officers who would otherwise have obtained the necessary evidence to convict the accused in any event. The admission of this evidence would not bring the administration of the law into disrepute.
Per Lamer J.: The appeal should be dismissed for the reasons of the Ontario Court of Appeal. It was consequently unnecessary to address the issue of whether the evidence should be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms .
Cases Cited
By La Forest J.
Considered: United States v. White, 401 U.S. 745 (1971); Lopez v. United States, 373 U.S. 427 (1963); R. v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48, leave to appeal refused, [1986] 1 S.C.R. ix; State v. Glass, 583 P.2d 872 (Alaska 1978); Holmes v. Burr, 486 F.2d 55 (1973); Commonwealth v. Schaeffer, 536 A.2d 354 (Penn. 1987); referred to: Katz v. United States, 389 U.S. 347 (1967); R. v. Wong (1987), 34 C.C.C. (3d) 51; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Dyment, [1988] 2 S.C.R. 417; Commonwealth v. Thorpe, 424 N.E.2d 250 (Mass. 1981); Millar v. Taylor (1769), 4 Burr. 2303, 98 E.R. 201; R. v. Playford (1987), 40 C.C.C. (3d) 142; R. v. Collins, [1987] 1 S.C.R. 265.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 8 , 24(2) .
Criminal Code, R.S.C. 1970, c. C‑34, ss. 178.1, 178.11(1) , (2) (a), 178.12(1), 178.13(1), (2)(e), 178.16(1)(a), (b), 178.22(1), 178.23(1).
Authors Cited
Canada. Law Reform Commission. Working Paper 47. Electronic Surveillance. Ottawa: Law Reform Commission, 1986.
Carr, James G. The Law of Electronic Surveillance. New York: Clark Boardman, 1977.
APPEAL from a judgment of the Ontario Court of Appeal sub nom. R. v. Sanelli (1987), 61 O.R. (2d) 385, 38 C.C.C. (3d) 1, 60 C.R. (3d) 142, 33 C.R.R. 360, allowing an appeal from a judgment of Trotter J. Appeal dismissed. Section 178.11(2) (a) of the Criminal Code , does not infringe or deny the rights and freedoms guaranteed by s. 8 of the Charter , but the interception of private communications by an instrumentality of the state with the consent of the originator or intended recipient thereof, without prior judicial authorization, does infringe the rights and freedoms guaranteed by s. 8 . It was not necessary to answer the second question.
Alan D. Gold, for the appellant.
R. W. Hubbard, for the respondent.
Jeff Casey, for the intervener the Attorney General for Ontario.
Jean‑François Dionne, for the intervener the Attorney General of Quebec.
//La Forest J.//
The judgment of Dickson C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier and McLachlin JJ. was delivered by
LA FOREST J. -- This appeal is concerned with the protection accorded by s. 8 of the Canadian Charter of Rights and Freedoms against electronic recording of the conversations of individuals with the police and informers in the absence of judicial authorization.
Facts
As part of an investigation into drug trafficking, the Ontario Provincial Police and the Metropolitan Toronto Police rented an apartment in Mississauga which was to be occupied by a police informer who was working with an undercover police officer. The apartment was equipped with audio-visual recording equipment installed in a wall. Prior to the installation of the equipment, the informer and the undercover officer consented to the interception of their conversations, pursuant to the provisions of s. 178.11(2)(a) of the Criminal Code, R.S.C. 1970, c. C-34. As a result of the operation, the undercover officer met a man named Paul Vidotto. Some days after the meeting, Vidotto, the appellant Mario Duarte, and two others attended at the apartment and discussed a cocaine transaction with the undercover officer and the informer. The undercover officer made notes of these and a subsequent conversation which he acknowledged were based upon a review of the tapes of the conversations.
The appellant was later charged with the offence of conspiracy to import a narcotic. At trial, he challenged, on a voir dire, the validity of s. 178.11(2)(a) of the Code which excepts from the prohibition of unauthorized electronic surveillance, the interception of conversations to which one of the parties consents. The trial judge, Trotter J., held that the actions of the authorities infringed the appellant's rights to be secure from unreasonable search and seizure under s. 8 of the Charter and that the evidence thereby obtained was held not admissible.
The Crown appealed to the Ontario Court of Appeal which unanimously allowed the appeal, set aside the acquittal and ordered a new trial. In reasons that I shall review later, Cory J.A. (as he then was) following American authorities dealing with the Fourth Amendment to the American Constitution, concluded that the interception of private conversations without a warrant but with the consent of one of the participants does not violate s. 8 of the Charter ((1987), 61 O.R. (2d) 385).
Notice of Appeal was then filed in this Court and the following constitutional questions were stated:
1.Does section 178.11(2)(a) of the Criminal Code , legalizing the interception of private communications with the consent of the originator or intended recipient thereof, without the need for judicial authorization, infringe or deny the rights and freedoms guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms ?
2.If section 178.11(2)(a) of the Criminal Code does infringe or deny the rights and freedoms guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms , is it justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982 ?
The Attorneys General for Ontario and Quebec intervened to support the constitutionality of s. 178.11(2)(a).
During the argument, counsel for the appellant, however, advanced the position that the constitutionality of s. 178.11(2)(a) might not really arise. That provision, he noted, was really an exception to the criminal prohibition against the interception of private communications set forth in s. 178.11(1), an exception applicable both to the police and members of the public. Action contemplated by that exception could not be made criminal by a Charter attack on its validity. The real question, then, becomes whether, even though such action may not constitute a criminal offence, it would nonetheless, when undertaken by an instrumentality of the state, such as the police, violate s. 8 of the Charter . In my view, that is the correct approach to the matter and I shall deal with it on this basis.
The Issues
The principal issue in this appeal is whether the commonly styled "consent" or "participant" surveillance ‑- i.e., electronic surveillance in which one of the parties to a conversation, usually an undercover police officer or a police informer, surreptitiously records it ‑- infringes the right under s. 8 of the Charter to be secure against unreasonable search and seizure. This raises the subsidiary issues of whether such infringement is justifiable under s. 1 of the Charter and whether the recorded conversation can nonetheless be admitted into evidence against an accused. I should at the outset note that "consent surveillance" is an unhappy term to describe a practice where only one party to a conversation has agreed to have it recorded. As put by the United States Supreme Court in Katz v. United States, 389 U.S. 347 (1967), at p. 358: "the very nature of electronic surveillance precludes its use pursuant to the suspect's consent." I shall, therefore, use the term "participant surveillance".
The importance of the issues can hardly be gainsaid. Carr, The Law of Electronic Surveillance, points out, at pp. 3-61, that in the United States this mode of surveillance is without question "the most widely used and most frequently practiced [sic] mode of eavesdropping". Though I have found no data on the relative frequency of this practice in Canada, the cases would indicate that it is also widespread here. The extensive use of electronic surveillance in this country is documented. The Law Reform Commission of Canada's working paper on Electronic Surveillance reports at p. 10 that on a relative basis, Canadian law enforcement authorities request twenty times more authorizations to conduct electronic surveillance than their American counterparts.
Canada, in common with the United States, has taken important steps to ensure judicial supervision of electronic surveillance by Part IV.1 of the Criminal Code . Section 178.11(1) makes it an offence to engage in this activity. It reads:
178.11 (1) Every one who, by means of an electromagnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for five years.
Under Part IV.1, the police generally may only conduct electronic surveillance once in possession of an authorization issued by a superior court judge and are bound to conduct such surveillance in strict accordance with the terms and conditions of the authorization. By contrast, participant surveillance is left entirely to the discretion of the police. Section 178.11(2)(a) of the Code provides the following exception to s. 178.11(1):
178.11 ...
(2) Subsection (1) does not apply to
(a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it;
The police are thus free to make the decision to conduct this type of surveillance on whom they wish, where they wish, and for as long as they wish (in the present case, for example, the operation lasted some two years).
The Risk Analysis of the Court of Appeal
In upholding the legality of participant surveillance, the Court of Appeal relied heavily on American authorities, citing several decisions of that country's Supreme Court, notably United States v. White, 401 U.S. 745 (1971), a plurality decision which has been interpreted as giving that court's imprimatur to the practice, though the specific legislative provisions authorizing it were not directly placed in issue; see Carr, op. cit., at pp. 3-62. Cory J.A., at p. 390, accurately summarized the logic of those decisions as resting on the notion that "the consent to the interception by the recipient may be looked upon as no more than an extension of the powers of recollection of the recipient of the communication". In essence, the starting point for the analysis is the proposition that the person who divulges any confidence always runs the risk that his interlocutor will betray the confidence. As Cory J.A. put it, at p. 393: "The expression of the idea and the assumption of the risk of disclosure are therefore concomitant."
The argument is then developed by pointing out that disclosures of this nature have always been admissible in a court of law. It is but a small step to the conclusion that constitutional expectations of privacy would therefore not operate to prohibit the interception of conversations which one of the participants is surreptitiously recording. As Cory J.A. put it, at pp. 393-94:
Given that it is accepted that the informant may testify in this manner as to pertinent conversations, the admission of electronic recordings of those conversations would seem to be a reasonable, logical and sequential step in trial proceedings. In this regard, the accurate transcript of the conversation should so often benefit the accused as the informant.
The same point, but with an added twist, was made by the Supreme Court of the United States in the following passage in Lopez v. United States, 373 U.S. 427 (1963), at pp. 438-39:
Once it is plain that Davis could properly testify about his conversation with Lopez, the constitutional claim relating to the recording of that conversation emerges in proper perspective.
...
Stripped to its essentials, petitioner's argument amounts to saying that he has a constitutional right to rely on possible flaws in the agent's memory, or to challenge the agent's credibility without being beset by corroborating evidence that is not susceptible of impeachment. For no other argument can justify excluding an accurate version of a conversation that the agent could testify to from memory. We think the risk that petitioner took in offering a bribe to Davis fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording. [Emphasis added.]
The decision in Lopez v. United States proceeds on the basis that participant surveillance is inherently less offensive than third party surveillance because the agent of the state hears nothing that his interlocutor did not intend him to hear. As the court there put it, at p. 439:
... the device was used only to obtain the most reliable evidence possible of a conversation in which the Government's own agent was a participant and which that agent was fully entitled to disclose. And the device was not planted by means of an unlawful physical invasion of petitioner's premises under circumstances which would violate the Fourth Amendment. It was carried in and out by an agent who was there with petitioner's assent, and it neither saw nor heard more than the agent himself.
Thus, for the Court of Appeal, inasmuch as the police are subjected to no warrant requirement in their use of informers or in their efforts to insinuate themselves into the confidence of a suspect, the use of electronic surveillance, as an adjunct to that process, is of no constitutional significance. In other words, if there has been a violation of privacy on the part of the state, it is complete when the confidence of the person under suspicion is gained. The Charter cannot purport to protect us if we don't know how to choose our "friends".
In summary, the risk analysis that is at the heart of the Court of Appeal's judgment rejects the notion that any distinction grounded on constitutional concerns should be drawn between evidence gained through the testimony of a participant to a conversation, and evidence gained through a surreptitious electronic recording of that conversation. A person who has voluntarily chosen to confide his wrongdoing to another, and who, by happenstance, has had the misfortune (from his perspective) of doing so in the presence of a microphone, should not be able to invoke the Charter to prevent divulgation of the confidence in a court of law. Incriminating statements and confessions of wrongdoing are not per se constitutionally protected communications; provided the accused spoke of his own free will, there is no constitutional significance to be accorded the manner in which the evidence was gained. In effect, the court chose to treat the risk that an interlocutor will divulge one's words and the risk that he will make a permanent electronic record of them at the behest of the state as being of the same order of magnitude.
This argument is not without weight: the fact that it counts among its adherents the Supreme Court of the United States and many state appellate courts testifies to that.
The Opposing Approach
With respect, it seems to me, the Court of Appeal failed to deal with the true issue raised in this appeal. The real question, as I see it, is whether our constitutional right to be secure against unreasonable search and seizure should be seen as imposing on the police the obligation to seek prior judicial authorization before engaging in participant surveillance, or whether the police should be entirely free to determine whether circumstances justify recourse to participant surveillance and, having so determined, be allowed an unlimited discretion in defining the scope and duration of participant surveillance. This Court is accordingly called on to decide whether the risk of warrantless surveillance may be imposed on all members of society at the sole discretion of the police.
I begin by stating what seems to me to be obvious: that, as a general proposition, surreptitious electronic surveillance of the individual by an agency of the state constitutes an unreasonable search or seizure under s. 8 of the Charter . The Ontario Court of Appeal has so held on at least two occasions; R. v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48, at p. 61 (leave to appeal refused, [1986] 1 S.C.R. ix); R. v. Wong (1987), 34 C.C.C. (3d) 51, at p. 58. Accordingly, the Crown conceded this point in the courts below and did not seriously press the matter here. The Attorney General for Ontario, for its part, assumed though it did not concede the point, and the Attorney General of Quebec did not deal with it at all.
It should come as no surprise that these parties shied away from engaging in such an unequal contest. Hunter v. Southam Inc., [1984] 2 S.C.R. 145, instructs us that the primary value served by s. 8 is privacy, and, as I noted in R. v. Dyment, [1988] 2 S.C.R. 417, at p. 426, the spirit of s. 8 must not be constrained by narrow legalistic classifications. If one is to give s. 8 the purposive meaning attributed to it by Hunter v. Southam Inc., one can scarcely imagine a state activity more dangerous to individual privacy than electronic surveillance and to which, in consequence, the protection accorded by s. 8 should be more directly aimed, an issue I shall more fully develop as I go along.
Not surprisingly, then, the Crown sought to focus more sharply on participant surveillance and to draw a distinction between it and other types of electronic surveillance. If that endeavour is to succeed, however, one must proceed on the assumption that the factors that support the imposition of a requirement for an authorization in the third party interception (i.e., non-participatory surveillance) of private communications hold no currency where participant surveillance is concerned. This proposition takes one back to the rationale for the regulation of electronic surveillance generally, and I shall now deal with it at greater length.
The rationale for regulating the power of the state to record communications that their originator expects will not be intercepted by anyone other than the person intended by the originator to receive it (see definition section of Part IV.1 of the Code) has nothing to do with protecting individuals from the threat that their interlocutors will divulge communications that are meant to be private. No set of laws could immunize us from that risk. Rather, the regulation of electronic surveillance protects us from a risk of a different order, i.e., not the risk that someone will repeat our words but the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit our words.
The reason for this protection is the realization that if the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance. The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private. A society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning. As Douglas J., dissenting in United States v. White, supra, put it, at p. 756: "Electronic surveillance is the greatest leveler of human privacy ever known." If the state may arbitrarily record and transmit our private communications, it is no longer possible to strike an appropriate balance between the right of the individual to be left alone and the right of the state to intrude on privacy in the furtherance of its goals, notably the need to investigate and combat crime.
This is not to deny that it is of vital importance that law enforcement agencies be able to employ electronic surveillance in their investigation of crime. Electronic surveillance plays an indispensable role in the detection of sophisticated criminal enterprises. Its utility in the investigation of drug related crimes, for example, has been proven time and again. But, for the reasons I have touched on, it is unacceptable in a free society that the agencies of the state be free to use this technology at their sole discretion. The threat this would pose to privacy is wholly unacceptable.
It thus becomes necessary to strike a reasonable balance between the right of individuals to be left alone and the right of the state to intrude on privacy in the furtherance of its responsibilities for law enforcement. Parliament has attempted to do this by enacting Part IV.1 of the Code. An examination of Part IV.1 reveals that Parliament has sought to reconcile these competing interests by providing that the police must always seek prior judicial authorization before using electronic surveillance. Only a superior court judge can authorize electronic surveillance, and the legislative scheme sets a high standard for obtaining these authorizations. A judge must be satisfied that other investigative methods would fail, or have little likelihood of success, and that the granting of the authorization is in the best interest of the administration of justice. I share the approach of Martin J.A. in R. v. Finlay and Grellette, supra, at pp. 70 et seq., that this latter prerequisite imports as a minimum requirement that the issuing judge must be satisfied that there are reasonable and probable grounds to believe that an offence has been, or is being, committed and that the authorization sought will afford evidence of that offence. It can, I think, be seen that the provisions and safeguards of Part IV.1 of the Code have been designed to prevent the agencies of the state from intercepting private communications on the basis of mere suspicion.
In proceeding in this fashion, Parliament has, in my view, succeeded in striking an appropriate balance. It meets the high standard of the Charter which guarantees the right to be secure against unreasonable search and seizure by subjecting the power of the state to record our private communications to external restraint and requiring it to be justified by application of an objective criterion. The reason this represents an acceptable balance is that the imposition of an external and objective criterion affords a measure of protection to any citizen whose private communications have been intercepted. It becomes possible for the individual to call the state to account if he can establish that a given interception was not authorized in accordance with the requisite standard. If privacy may be defined as the right of the individual to determine for himself when, how, and to what extent he will release personal information about himself, a reasonable expectation of privacy would seem to demand that an individual may proceed on the assumption that the state may only violate this right by recording private communications on a clandestine basis when it has established to the satisfaction of a detached judicial officer that an offence has been or is being committed and that interception of private communications stands to afford evidence of the offence.
This, it seems to me, flows inexorably from the principles enunciated in Hunter v. Southam Inc., supra. In that case, this Court (p. 157) made the important point that the "assessment of the constitutionality of a search and seizure ... must focus on its `reasonable' or `unreasonable' impact on the subject of the search or the seizure, and not simply on its rationality in furthering some valid government objective". Applying this standard, it is fair to conclude that if the surreptitious recording of private communications is a search and seizure within the meaning of s. 8 of the Charter , it is because the law recognizes that a person's privacy is intruded on in an unreasonable manner whenever the state, without a prior showing of reasonable cause before a neutral judicial officer, arrogates to itself the right surreptitiously to record communications that the originator expects will not be intercepted by anyone other than the person intended by its originator to receive them, to use the language of the Code.
By contrast to the general provisions on electronic surveillance, the Code places no restriction on participant surveillance. The police may employ this practice in their absolute discretion, against whom they wish and for whatever reasons they wish, without any limit as to place or duration. There is a total absence of prior judicial supervision of this practice.
I am unable to see any logic to this distinction between third party electronic surveillance and participant surveillance. The question whether unauthorized electronic surveillance of private communications violates a reasonable expectation of privacy cannot, in my view, turn on the location of the hidden microphone. Whether the microphone is hidden in the wall or concealed on the body of a participant to the conversation, the assessment whether the surreptitious recording trenches on a reasonable expectation of privacy must turn on whether the person whose words were recorded spoke in circumstances in which it was reasonable for that person to expect that his or her words would only be heard by the persons he or she was addressing. As I see it, where persons have reasonable grounds to believe their communications are private communications in the sense defined above, the unauthorized surreptitious electronic recording of those communications cannot fail to be perceived as an intrusion on a reasonable expectation of privacy.
The Charter standard just described must, in my view, apply on a uniform basis. To have any meaning, it must be taken to afford protection against the arbitrary recording of private communications every time we speak in the expectation that our words will only be heard by the person or persons to whom we direct our remarks. Section 8 of the Charter guarantees the right to be secure against unreasonable search or seizure. Our perception that we are protected against arbitrary interceptions of private communications ceases to have any real basis once it is accepted that the state is free to record private communications, without constraint, provided only that it has secured the agreement of one of the parties to the communication. Since we can never know if our listener is an informer, and since if he proves to be one, we are to be taken to be tacitly consenting to the risk that the state may be listening to and recording our conversations, we should be prepared to run this risk every time we speak. I conclude that the risk analysis relied on by the Court of Appeal, when taken to its logical conclusion, must destroy all expectations of privacy.
I am unable to see any similarity between the risk that someone will listen to one's words with the intention of repeating them and the risk involved when someone listens to them while simultaneously making a permanent electronic record of them. These risks are of a different order of magnitude. The one risk may, in the context of law enforcement, be viewed as a reasonable invasion of privacy, the other unreasonable. They involve different risks to the individual and the body politic. In other words, the law recognizes that we in