Wakeling v. United States of America

Wakeling v. United States of America
Collection
Supreme Court Judgments
Date
2014-11-14
Neutral citation
2014 SCC 72
Report
[2014] 3 SCR 549
Case number
35072
Judges
McLachlin, Beverley; LeBel, Louis; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache
On appeal from
British Columbia
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 35072
Decision Content
SUPREME COURT OF CANADA
Citation: Wakeling v. United States of America, 2014 SCC 72, [2014] 3 S.C.R. 549
Date: 20141114
Docket: 35072
Between:
Andrew Gordon Wakeling
Appellant
and
Attorney General of Canada on behalf of the United States of America and
Attorney General of British Columbia
Respondents
And Between:
Andrew Wakeling
Appellant
and
Attorney General of Canada on behalf of the Minister of Justice
Respondent
- and -
Attorney General of Ontario, Attorney General of Quebec, Canadian Civil Liberties Association, British Columbia Civil Liberties Association, Information and Privacy Commissioner of Ontario and Privacy Commissioner of Canada
Interveners
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
Reasons for Judgment:
(paras. 1 to 82)
Concurring Reasons:
(paras. 83 to 101)
Dissenting Reasons:
(paras. 102 to 151)
Moldaver J. (LeBel and Rothstein JJ. concurring)
McLachlin C.J.
Karakatsanis J. (Abella and Cromwell JJ. concurring)
wakeling v. united states of america, 2014 SCC 72, [2014] 3 S.C.R. 549
Andrew Gordon Wakeling Appellant
v.
Attorney General of Canada on behalf of
the United States of America and
Attorney General of British Columbia Respondents
and
Andrew Wakeling Appellant
v.
Attorney General of Canada on behalf of the Minister of Justice Respondent
and
Attorney General of Ontario,
Attorney General of Quebec,
Canadian Civil Liberties Association,
British Columbia Civil Liberties Association,
Information and Privacy Commissioner of Ontario and
Privacy Commissioner of Canada Interveners
Indexed as: Wakeling v. United States of America
2014 SCC 72
File No.: 35072.
2014: April 22; 2014: November 14.
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Charter of Rights — Search and seizure — Fundamental justice — Interception of communications — Exemption from offence of disclosing intercepted private communication without consent — Provision of Criminal Code exempting disclosure of lawfully intercepted private communication to person or authority with responsibility in a foreign state for investigation or prosecution of offences if disclosure is intended to be in the interests of the administration of justice in Canada or elsewhere — Whether provision unjustifiably infringes s. 7 or 8 of the Canadian Charter of Rights and Freedoms — Criminal Code, R.S.C. 1985, c. C-46, s. 193(2) (e).
Criminal law — Interception of communications — Disclosure of information — Exemption from offence — Whether exemption provision which authorizes sharing of lawfully obtained wiretap information between Canadian and foreign law enforcement agencies is constitutional — Canadian Charter of Rights and Freedoms, ss. 7 , 8 — Criminal Code, R.S.C. 1985, c. C-46, s. 193(2) (e).
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 (Abella, Cromwell and Karakatsanis JJ. dissenting): 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 by s. 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, s. 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 the Criminal 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 Code makes 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 the Charter .
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 Parliament’s goals.
Cases Cited
By Moldaver J.
Distinguished: R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531; referred to: British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473; R. v. Duarte, [1990] 1 S.C.R. 30; Imperial Oil v. Jacques, 2014 SCC 66, [2014] 3 S.C.R. 287; R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; R. v. Samson (1982), 37 O.R. (2d) 237; R. v. Finlay (1985), 52 O.R. (2d) 632.
By McLachlin C.J.
Referred to: R. v. Colarusso, [1994] 1 S.C.R. 20; R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; Imperial Oil v. Jacques, 2014 SCC 66, [2014] 3 S.C.R. 287.
By Karakatsanis J. (dissenting)
R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554; R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; Brown v. The Queen, 2013 FCA 111, 2013 D.T.C. 5094; R. v. Mills, [1999] 3 S.C.R. 668; R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66; R. v. Colarusso, [1994] 1 S.C.R. 20; Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Thompson, [1990] 2 S.C.R. 1111; R. v. Oakes, [1986] 1 S.C.R. 103; Schachter v. Canada, [1992] 2 S.C.R. 679; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203.
Statutes and Regulations Cited
Act to amend the Criminal Code , the Crown Liability and Proceedings Act and the Radiocommunication Act, S.C. 1993, c. 40.
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 8 , 24 .
Criminal Code, R.S.C. 1985, c. C-46 , Part VI, ss. 183, 184.1, 184.2, 184.4, 185, 186, 193, 195, 196, 487.01(5).
Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56, s. 8(1).
Privacy Act, R.S.C. 1985, c. P-21, s. 8 .
Response to the Supreme Court of Canada Decision in R. v. Tse Act, S.C. 2013, c. 8 .
Authors Cited
Austin, Lisa M. “Information Sharing and the ‘Reasonable’ Ambiguities of Section 8 of the Charter ” (2007), 57 U.T.L.J. 499.
Canada. Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar. Report of the Events Relating to Maher Arar: Analysis and Recommendations. Ottawa: Public Works and Government Services, 2006.
Franklin, Ben A. “Wiretaps reveal Dr. King feared rebuff on nonviolence”, The New York Times, September 15, 1985.
Roach, Kent. “Overseeing Information Sharing”, in Hans Born and Aidan Wills, eds., Overseeing Intelligence Services: A Toolkit. Geneva: Geneva Centre for the Democratic Control of Armed Forces, 2012, 129.
Sanchez, Julian. “Wiretapping’s true danger”, Los Angeles Times, March 16, 2008.
United Kingdom. Intelligence and Security Committee. Rendition. London: The Committee, 2007.
APPEAL from a judgment of the British Columbia Court of Appeal (Low, Groberman and MacKenzie JJ.A.), 2012 BCCA 397, 328 B.C.A.C. 174, 558 W.A.C. 174, 293 C.C.C. (3d) 196, 267 C.R.R. (2d) 279, [2012] B.C.J. No. 2057 (QL), 2012 CarswellBC 3067, affirming a decision of Ross J., 2011 BCSC 165, 268 C.C.C. (3d) 295, 228 C.R.R. (2d) 239, [2011] B.C.J. No. 212 (QL), 2011 CarswellBC 1468. Appeal dismissed, Abella, Cromwell and Karakatsanis JJ. dissenting.
Gregory P. Delbigio, Q.C., for the appellant.
W. Paul Riley and Jeffrey G. Johnston, for the respondent the Attorney General of Canada on behalf of the United States of America and on behalf of the Minister of Justice.
M. Joyce DeWitt-Van Oosten, Q.C., for the respondent the Attorney General of British Columbia.
Joan Barrett, for the intervener the Attorney General of Ontario.
Jean-Vincent Lacroix, Dominique A. Jobin and Émilie-Annick Landry-Therriault, for the intervener the Attorney General of Quebec.
Peter M. Rogers, Q.C., and Jane O’Neill, for the intervener the Canadian Civil Liberties Association.
Michael A. Feder and Emily MacKinnon, for the intervener the British Columbia Civil Liberties Association.
David Goodis and Stephen McCammon, for the intervener the Information and Privacy Commissioner of Ontario.
Mahmud Jamal, Patricia Kosseim and Jennifer Seligy, for the intervener the Privacy Commissioner of Canada.
The judgment of LeBel, Rothstein and Moldaver JJ. was delivered by
Moldaver J. —
I. Introduction
[1] The ability to share information between law enforcement agencies, including lawfully intercepted wiretap information, facilitates the effective investigation of both domestic and multi-jurisdictional crime. But the effective investigation of crime must proceed in accordance with the rights guaranteed by the Canadian Charter of Rights and Freedoms . The main issue in this appeal is whether federal legislation which authorizes the sharing of lawfully obtained wiretap information between Canadian and foreign law enforcement agencies is constitutional — specifically, whether the legislation falls short of the constitutional standards mandated by the Charter .
II. Background
[2] Andrew Gordon Wakeling was the subject of a Canadian drug investigation. Over the course of the investigation, the RCMP lawfully monitored and recorded communications between Mr. Wakeling and others. These communications revealed a plot to transport drugs across the Canada-U.S. border. Canadian authorities provided this information to U.S. authorities (the “Impugned Disclosure”), who used it to intercept and seize 46,000 ecstasy pills at the International Falls, Minnesota border crossing on April 5, 2006.
[3] The U.S. sought Mr. Wakeling’s extradition from Canada for his involvement in the ecstasy shipment. At the extradition hearing, Mr. Wakeling submitted that the legislation authorizing the Impugned Disclosure was unconstitutional. Specifically, he argued that the provisions breach ss. 7 and 8 of the Charter , and that the wiretap information provided to U.S. law enforcement authorities should therefore not be admitted as evidence against him.
[4] The extradition judge, Ross J., rejected Mr. Wakeling’s arguments and issued a committal order. That order was upheld by the British Columbia Court of Appeal. Before this Court, Mr. Wakeling requests that the committal order be quashed and that a new extradition hearing be held.
[5] For the reasons that follow, I would dismiss Mr. Wakeling’s appeal.
III. Statutory Provisions
[6] Section 193 of the Criminal Code, R.S.C. 1985, c. C-46 , states:
193. (1) Where a private communication has been intercepted by means of an electro-magnetic, acoustic, mechanical or other device without the consent, express or implied, of the originator thereof or of the person intended by the originator thereof to receive it, every one who, without the express consent of the originator thereof or of the person intended by the originator thereof to receive it, wilfully
(a) uses or discloses the private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof, or
(b) discloses the existence thereof,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
(2) Subsection (1) does not apply to a person who discloses a private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof or who discloses the existence of a private communication
. . .
(b) in the course of or for the purpose of any criminal investigation if the private communication was lawfully intercepted;
. . .
(e) 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; or
. . .
[7] Section 8 of the Privacy Act, R.S.C. 1985, c. P-21 , states:
8. (1) Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section.
(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed
. . .
(b) for any purpose in accordance with any Act of Parliament or any regulation made thereunder that authorizes its disclosure;
. . .
(f) under an agreement or arrangement between the Government of Canada or an institution thereof and the government of a province, the council of the Westbank First Nation, the council of a participating First Nation — as defined in subsection 2(1) of the First Nations Jurisdiction over Education in British Columbia Act — , the government of a foreign state, an international organization of states or an international organization established by the governments of states, or any institution of any such government or organization, for the purpose of administering or enforcing any law or carrying out a lawful investigation;
. . .
[8] Finally, ss. 7 and 8 of the Charter state:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
8. Everyone has the right to be secure against unreasonable search or seizure.
IV. Judicial History
A. Supreme Court of British Columbia, 2011 BCSC 165, 268 C.C.C. (3d) 295 (Ross J.)
[9] At his extradition hearing, Mr. Wakeling restricted his constitutional challenge to s. 193(2) (e) of the Criminal Code and s. 8(2) (f) of the Privacy Act . He made a variety of broad and sweeping submissions in support of his contention that the impugned provisions do not pass constitutional muster.
[10] Mr. Wakeling submitted that transparency, accountability and the rule of law are principles of fundamental justice under s. 7 of the Charter and that the provisions in question are unconstitutional because the disclosure they authorize does not comply with these principles (trial judgment, at para. 42). He also argued that both provisions breach s. 7 of the Charter because they are vague and overbroad. With respect to s. 193(2) (e), he submitted that it “provides virtually unlimited discretion to law enforcement” to disclose wiretap communications and he criticized the subjective nature of the test it employs (ibid., at para. 99). He further submitted that the phrase “the interests of the administration of justice . . . elsewhere” is “incapable of framing legal debate within Canada” and that it does not have a “constant and settled meaning” (ibid.). In his view, the effect of these uncertainties is that decision-makers are given “unrestricted latitude . . . to disclose intercepted private communications or the substance of the communications, and to be exempt from the application of the offence provisions of Part VI” (ibid.).
[11] With respect to s. 8 of the Charter , Mr. Wakeling submitted that the Impugned Disclosure re-engaged s. 8 such that a second judicial authorization was needed before the disclosure could occur. In this regard, he submitted that his privacy interests at the disclosure stage were the same as those he enjoyed at the interception stage and deserved the same protection (trial judgment, at para. 68). Hence, he argued that a second judicial authorization should be required prior to disclosure, and that the provisions in question are unreasonable because they do not provide for this. He also submitted that the provisions are unreasonable because they do not contain sufficient accountability mechanisms such as a police record-keeping requirement, a requirement to report to Parliament about the disclosures, or an obligation to provide notice of the disclosure to the person whose communications were intercepted. Finally, he took issue with the fact that Canadian authorities have little control over the subsequent use of the disclosed information (para. 116).
[12] The extradition judge considered and rejected all of Mr. Wakeling’s arguments. In her view, the constitutionality of s. 8(2) (f) of the Privacy Act did not need to be considered because s. 193(2) (e) of the Criminal Code “expressly governs disclosure of private communications intercepted under Part VI of the Criminal Code to foreign law enforcement authorities” and “[t]he more general information sharing rules in the Privacy Act are subject to the specific provisions of [the Criminal Code ]” (para. 21).
[13] Turning to Mr. Wakeling’s constitutional arguments, the extradition judge concluded that the Impugned Disclosure did not re-engage s. 8 of the Charter , as the Impugned Disclosure was “not conduct that interferes with a reasonable expectation of privacy in the circumstances” (para. 75). Thus, the disclosure did not amount to “a search or seizure that engages s. 8 of the Charter ” (ibid.). In the alternative, she reasoned that if the Impugned Disclosure engaged s. 8, s. 193(2)(e) is a reasonable law.
[14] The extradition judge also rejected Mr. Wakeling’s submission that transparency and accountability are principles of fundamental justice that apply to s. 193(2) (e). In her view, “[e]ven if these concepts could be characterized as principles of fundamental justice in some contexts, they could not realistically be applied to the manner in which police investigate criminal activity” (para. 48).
[15] The extradition judge similarly rejected Mr. Wakeling’s submission that s. 193(2) (e) is vague and overbroad, noting that
in making the arguments on vagueness and overbreadth that he does, the applicant demands a level of drafting precision from Parliament that is neither constitutionally mandated, nor realistic. By necessity, the wording of s. 193(2) (e) had to be kept fairly broad to capture the myriad of ways in which a need to disclose “in the interests of the administration of justice” might arise. The law must retain flexibility since laws must of necessity govern a variety of different circumstances and situations. [para. 108]
[16] Lastly, the extradition judge rejected Mr. Wakeling’s rule of law argument. Relying on this Court’s decision in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, she found Mr. Wakeling’s submissions to be “circular, since the measures are themselves embodied in the law” (para. 53).
[17] Having rejected Mr. Wakeling’s legal arguments, the extradition judge considered the evidence and found that it was sufficient to warrant his committal.
B. British Columbia Court of Appeal, 2012 BCCA 397, 328 B.C.A.C. 174 (Low, Groberman and MacKenzie JJ.A.)
[18] On appeal, Mr. Wakeling reiterated his challenge to the constitutionality of s. 193(2) (e) of the Criminal Code and s. 8(2) (f) of the Privacy Act . The B.C. Court of Appeal, per Low J.A., agreed with the extradition judge that s. 193(2) (e) was the governing provision for the specific disclosure at issue. Hence, the court found it unnecessary to consider the constitutionality of s. 8(2) (f) of the Privacy Act .
[19] In addressing Mr. Wakeling’s s. 8 claim, Low J.A. concluded that the state conduct did not interfere with any reasonable privacy expectation to which Mr. Wakeling could lay claim. The court thus rejected Mr. Wakeling’s s. 8 argument. As the Impugned Disclosure did not re-engage s. 8 of the Charter , no second judicial authorization was needed.
[20] Low J.A. similarly concluded that Mr. Wakeling’s fundamental justice submissions pertaining to transparency and accountability were without merit:
The impugned provision does not have to be transparent by requiring prior notice and there is no need for a reporting requirement of some sort after the fact. The information gathered by lawful electronic interception becomes law enforcement intelligence. In my opinion, it is no different than information obtained from a police informer or information contained in documents that lawfully come into the hands of the police. If disclosure is in the interests of the administration of justice, there is no need for prior judicial approval or for notice or for reporting. Such requirements would formalize and hamper the inter-jurisdictional investigation of crime and sometimes the prevention of crime. Control of the use of lawfully-gathered police intelligence by foreign authorities is not practical and would be presumptuous. What is practical and necessary for both crime detection and crime prevention is the ability of police officers to lawfully inform their counterparts in other jurisdictions about impending criminal activity, as occurred in the present case, or past criminal activity. [para. 43]
[21] Finally, the court rejected Mr. Wakeling’s vagueness and overbreadth arguments, noting that “[t]he administration of justice is a concept that is well understood and needs no clarification or narrowing” (para. 44). In the result, the court dismissed the appeal.
C. Issues
[22] On appeal to this Court, Mr. Wakeling renews his constitutional attack on s. 193(2) (e) of the Criminal Code and s. 8(2) (f) of the Privacy Act , relying on the same arguments he made below. He also raises for the first time, with leave of the Court, the constitutionality of s. 193(2)(b) of the Code. He maintains that all of these provisions infringe his rights under ss. 7 and 8 of the Charter , and that the infringements are not justified under s. 1 .
V. Analysis
[23] I propose initially to explain why this appeal turns on the constitutionality of s. 193(2) (e) of the Criminal Code and not s. 193(2)(b) of the Code or s. 8(2) (f) of the Privacy Act . I will then address Mr. Wakeling’s Charter arguments as they relate to s. 193(2) (e).
A. The Privacy Act Does Not Apply
[24] The Privacy Commissioner of Canada, an intervener, submits that contrary to the lower court decisions, the RCMP must comply with both the Criminal Code and the Privacy Act when disclosing intercepted private communications to a foreign state, as “[n]othing in the Criminal Code relieves the RCMP from their duty to comply with the Privacy Act ” (factum, at para. 13). According to the Privacy Commissioner, s. 193(2)(e) of the Criminal Code “limits the breadth of the criminal prohibition” set out in s. 193 , “[b]ut this exemption neither authorizes a disclosure under the Privacy Act nor is itself a source of police power” (para. 14).
[25] With respect, I do not agree. The federal Privacy Act is a statute of general application. Section 8(2) of the Act sets out the circumstances in which personal information under the control of a government institution may be disclosed. That section explicitly states that it is “[s]ubject to any other Act of Parliament”. Therefore, prior to considering the disclosure contemplated by s. 8(2) , it must first be determined whether another Act of Parliament addresses the particular disclosure in issue. In this case, the Impugned Disclosure (involving lawfully intercepted private communications) is specifically addressed by another Act of Parliament — the Criminal Code .
[26] Part VI of the Criminal Code represents a comprehensive scheme dealing with the interception of private communications. The individual right to privacy stands in tension with our collective need for effective law enforcement, and the safeguards layered into the wiretap provisions show Parliament’s efforts to “reconcile these competing interests” (R. v. Duarte, [1990] 1 S.C.R. 30, at p. 45). As noted by the extradition judge,
Part VI . . . creates a specific regime for the protection of privacy interests in relation to intercepted communications by creating specific offences, setting out procedures for authorized interception of private communications in the investigation of specific crimes, and delineating the circumstances under which intercepted communications may be disclosed. [para. 22]
This level of detail and specificity in Part VI indicates that Parliament intended this framework to be the exclusive regime governing the interception and use of private communications for law enforcement purposes.[1]
[27] Section 193(2)(e) deals directly with the issue at hand — namely, the cross-border disclosure of wiretap information. Admittedly, s. 193(2) is not structured as an explicit authorizing provision. Rather, it takes the form of a series of exemptions to the criminal offence identified in s. 193(1) . Nonetheless, I am satisfied that it represents Parliament’s attempt to regulate the disclosure of intercepted communications and specify the circumstances in which such disclosures may lawfully be made. Succinctly put, s. 193(2)(e) implicitly authorizes the disclosure of wiretap information in accordance with the conditions prescribed therein.
[28] For these reasons, s. 193(2) (e) of the Criminal Code , and not s. 8(2) (f) of the Privacy Act , is the governing provision in this case. Accordingly, I need not consider the constitutionality of s. 8(2) (f).
[29] In concluding that s. 193(2) (e) is an authorizing provision, I do not quarrel with the Chief Justice that, in general, the police may look to the common law for authority to use the fruits of a lawful search for legitimate law enforcement purposes, including disclosures to foreign law enforcement agencies. However, adopting this analysis in the wiretap context poses a problem. Finding that s. 193(2) (e) is not an authorizing provision, but merely an exception to a criminal offence, implies that none of the subparts of s. 193(2) are authorizing provisions, and that authorization for all of the listed disclosures must come from some other source. This, however, does not accord with the Court’s recent decision in Imperial Oil v. Jacques, 2014 SCC 66, [2014] 3 S.C.R. 287, in which the majority held that the exemptions in s. 193(2) “give a person the right to disclose recordings that otherwise could not be disclosed” (para. 43).[2] Therefore, in my view, s. 193(2) (e) is properly read as an authorizing provision.
B. Section 193(2) (b) Need Not Be Considered
[30] As noted, Mr. Wakeling was granted leave to challenge the constitutionality of s. 193(2) (b) of the Criminal Code before this Court. In contrast to s. 193(2) (e), which addresses the cross-border disclosure of wiretap communications, s. 193(2) (b) authorizes the disclosure of wiretap communications “in the course of or for the purpose of any criminal investigation”.
[31] Mr. Wakeling made only cursory mention of s. 193(2) (b) in argument. As his complaint is specific to the issue of international, cross-border sharing of wiretap information for criminal law purposes, it is properly considered under s. 193(2) (e). For that reason — and the fact that Mr. Wakeling did not press s. 193(2) (b) in written or oral argument — I see no need to address its constitutionality.
C. Does the Impugned Disclosure Violate Section 8 of the Charter ?
(1) Is Section 8 Engaged?
[32] Section 8 is typically invoked where police perform a search or seizure and thereby infringe upon an individual’s reasonable expectation of privacy. It is quite evident that the interception of wiretap communications constitutes a search. However, the disclosure of previously intercepted communications — which is what s. 193(2) (e) implicitly authorizes — is not, in my view, a “search” within the meaning of s. 8. Therefore, as a preliminary matter, it is important to clarify precisely how s. 8 is engaged in the present case. I now turn to that issue.
[33] Mr. Wakeling submits that s. 8 is engaged because the disclosure of his intercepted communications pursuant to s. 193(2) (e) amounted to a second search, such that a second judicial authorization was necessary prior to the Impugned Disclosure. Absent such authorization, he argues that the police violated his s. 8 rights.
[34] With respect, I disagree. As the intervener the British Columbia Civil Liberties Association (“BCCLA”) observes, the plain meaning of “search” does not include the disclosure of information by the state. A disclosure is simply the communication to a third party of previously acquired information.
[35] In sum, there was only one search that engaged s. 8 of the Charter on the facts of this case — the original lawful interception of Mr. Wakeling’s private communications. For this reason, to invoke s. 8 , the appellant must rely on some other analytical approach.
[36] The BCCLA frames the s. 8 analysis in a different way. It submits that to the extent s. 193(2) (e) permits disclosure of the fruits of a search, it forms “part of the context in which courts must assess the reasonableness of the law authorizing the search” (factum, at para. 3).
[37] This submission warrants brief elaboration. According to the BCCLA, s. 193(2)(e) is an int