Wiretap Reference

Wiretap Reference
Collection
Supreme Court Judgments
Date
1984-12-20
Report
[1984] 2 SCR 697
Case number
18224
Judges
Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio
On appeal from
Alberta
Subjects
Criminal law
Notes
SCC Case Information: 18224
Decision Content
SUPREME COURT OF CANADA
Wiretap Reference, [1984] 2 S.C.R. 697
Date: 1984-12-20
IN THE MATTER OF a Reference Pursuant to Section 27(1) of the Judicature Act, Chapter J-1 of the Revised Statutes of Alberta, 1980, as amended, referred by Order in Council (O.C. 84/83) of the Lieutenant Governor in Council dated the 2nd day of February, A.D. 1983, to the Court of Appeal of Alberta
File No.: 18224.
1984: March 26 and 27; 1984: December 20.
Present: Ritchie*, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA
Criminal law — Wiretaps — Authorization — Entry without consent to plant bug — Whether or not authorization implied power to plant device through illegal means — Whether or not illegal means for planting device can be sanctioned by term of judge's authorization — Criminal Code, R.S.C. 1970, c. C-34, ss. 25(1), 178.1, 178.11(1), (2), 178.12(1), 178.13(1), (2), 178.16, 178.18(1), 178.2 — Interpretation Act, R.S.C. 1970, c. I-23, s. 26(2).
A judge of the Alberta Court of Queen's Bench gave an authorization to intercept private communications but refused to grant an order authorizing entry upon private premises to install and to remove the microphone. The Alberta Government, as a result of this judgment, referred two questions to the Alberta Court of Appeal raising the issues of (1) whether, in Part IV.1 of the Criminal Code, Parliament intended by necessary implication to empower police officers to enter private property to install listening devices when they act under an authorization to intercept private communications and (2) whether a judge may expressly authorize such entry when he grants an authorization for an interception of private communications. The Alberta Court of Appeal answered both questions in the negative.
Held (Dickson and Chouinard JJ. dissenting): The appeal should be allowed and the two questions should be answered in the affirmative.
Per Beetz, Estey, McIntyre and Lamer JJ.: An authorization given by a judge under Part IV.1 of the Criminal Code authorizes by necessary implication any person acting under the authorization to enter any place at which private communications are to be intercepted
[page 698]
to install or to service a permitted listening device—provided such entry is required to implement the particular authorization—unless the authorization includes limitations on or prohibitions of such entry. A judge in giving an authorization has jurisdiction to expressly authorize a person acting under the authorization to enter any place at which private communications are to be intercepted to install or service a device, provided such entry is required to implement the particular authorization.
Per Dickson and Chouinard JJ. dissenting: Parliament did not intend that an authorization to intercept private communications should accord, by necessary implication, the person acting under its power to enter any place to install, monitor, repair or remove a listening device. At common law, entry into a person's private premises without either consent or specific legal authorization has always been unlawful. Unless authorized by law, a police officer has no more right than an ordinary citizen to interfere with a person's property. The Court has recently reaffirmed the longstanding protection the common law accords to rights of property in Colet v. The Queen, [1981] 1 S.C.R. 2, where it unanimously held that a statutory power to seize firearms did not carry with it, by necessary implication, a power to enter and search. This decision is a particular application of a larger canon of statutory interpretation: in general, it will be presumed in the absence of express statutory language that a legislative body did not intend to authorize an act unlawful at common law.
While Parliament clearly intended oral communications should be the subject of interception, there was nothing to indicate that such communications could not be effectively intercepted without an implied power of entry. The fact that oral communications could be intercepted more frequently and more conveniently if a power of entry was inferred does not justify the implication of such a power. The omission of this power by Parliament from the otherwise detailed statutory scheme of Part IV.1 is strong indication that it did not consider such a power either essential or necessary to give effect to an authorization to intercept oral communications.
The committee reports which were before Parliament at the time of the introduction of the Protection of Privacy Act, 1973-74 (Can.), c. 50, cannot be used to interpret Part IV.1 of the Code and, in any event, they
[page 699]
do not provide any substantial support for the view that Parliament intended by necessary implication to authorize entry in aid of interception.
Subsection 25(1) of the Criminal Code cannot support a right of entry by the police to effect an authorization to intercept oral communications; this subjection does not augment the powers of the police beyond those accorded them by the Criminal Code or at common law.
At common law, the police have never been entitled to exercise a general right of entry as part of their powers. Unless specifically authorized by law, a police officer has no right to enter upon the private property of another without consent. The situations where entry has been authorized at common law are exceptional and few in number. R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), does not stand for the proposition that a power of entry to private property for the purpose of installing a listening device can arise simply by virtue of a policeman's general duty to detect crime and enforce the law. Furthermore, Waterfield provides no assistance where the conduct of the police is of itself unlawful and has been initiated with full knowledge of its potential illegality.
Subsection 26(2) of the Interpretation Act, R.S.C. 1970, c. I-23, is a general deeming provision which cannot supply authority for conduct that is otherwise unlawful and, in any event, the conditions for its operation are not fulfilled.
Since Parliament has neither explicitly nor implicitly granted a person acting under an authorization to intercept private communications a right of entry, there can be no power in a judge to expressly grant such power as a term of an authorization pursuant to s. 178.13(2). A judge acting under a statutory scheme is limited by the authority accorded under the statute.
The two questions posed in this reference should be answered in the negative.
[Lyons v. The Queen, [1984] 2 S.C.R. 633, followed.]
APPEAL from a judgment of the Alberta Court of Appeal (1983), 5 D.L.R. (4th) 601, on a reference made pursuant to s. 27(1) of the Judicature Act (Alta.) Appeal allowed, Dickson and Chouinard JJ. dissenting.
B. R. Fraser, Q.C., and Earl Wilson, for the appellant.
[page 700]
R. B. White and E. A. Johnson, representing the opposite view.
Julius Isaac, Q.C., and Shelagh Creagh, for the intervener the Attorney General of Canada.
David Watt, Q.C., and Michael Anne MacDonald, for the intervener the Attorney General for Ontario.
Claude Provost, for the intervener the Attorney General of Quebec.
Stuart Whitley, for the intervener the Attorney General of Manitoba.
The reasons of Dickson and Chouinard JJ. were delivered by
DICKSON J. (dissenting)—The issues this reference presents are (1) whether in Part IV.1 of the Criminal Code Parliament intended by necessary implication to empower police officers to enter private property to install listening devices when they act under an authorization to intercept private communications and (2) accordingly, whether a judge may expressly authorize such entry when he grants an authorization for an interception of private communications.
These questions raise the substantial issue of the limits Parliament intended to impose upon the interception of private communications by the police in aid of criminal law enforcement. Equally important, this reference compels the Court to inquire into societal interests in conversational privacy protected by the Criminal Code as well as the breadth of every citizen's common law right to the exclusive and unimpaired enjoyment of property.
I Background
In 1982, an application for an authorization to intercept private communications was made before Mr. Justice D.C. MacDonald of the Alberta Court of Queen's Bench pursuant to s. 178.12(1) of the Criminal Code.
Justice MacDonald gave the authorization after he was satisfied that the requirements for the grant of an authorization established by s. 178.13(1)
[page 701]
of the Criminal Code were fulfilled. At the same time, an order authorizing the entry upon private premises for the purpose of installing and removing a microphone or microphones was also sought. MacDonald J. refused to include such power in the authorization and he gave written reasons at a later date in support of his refusal. See Re Application for Authorization to Intercept Private Communications (1982), 31 C.R. (3d) 31 (Alta. Q.B.)
Thereafter, pursuant to s. 27(1) of the Judicature Act, R.S.A. 1980, c. J-1, the following questions were referred to the Alberta Court of Appeal by order of the Lieutenant Governor in Council (O.C. 84/83), dated February 2, 1983:
Does an authorization given by a judge under Part IV.1 of the Criminal Code (Canada), by necessary implication, authorize any person acting under the authorization to enter any place at which private communications are proposed to be intercepted under the authorization for the purpose of installing, monitoring, repairing or removing any electromagnetic, acoustic, mechanical or other device?
Does a judge have jurisdiction, in giving an authorization under Part IV.1 of the Criminal Code (Canada), to expressly authorize any person acting under the authorization to enter any place at which private communications are proposed to be intercepted under the authorization for the purpose of installing, monitoring, repairing or removing any electromagnetic, acoustic, mechanical or other device?
For the purpose of hearing and considering the above questions, words and expressions defined in Part 1V.1 of the Criminal Code (Canada) have the meanings given to them in that Part.
The Court of Appeal (McGillivray C.J. and Laycraft, Harradence, Belzil and Stevenson JJ.A.) answered both questions in the negative: Reference re an Application for an Authorization (1983), 5 D.L.R. (4th) 601. The five member panel was unanimous in its negative response to the first question. The majority of the Court also answered the second question in the negative. Chief Justice McGillivray and Justice Harradence each rendered separate dissenting reasons for answering the second question in the affirmative.
[page 702]
The Attorney General of Alberta has now brought an appeal from this decision by virtue of s. 37 of the Supreme Court Act, R.S.C. 1970, c. S-19, as amended. He seeks an affirmative answer to both questions. The Attorney General of Canada, as well as the Attorneys General of Ontario and Manitoba and the Attorney General of Québec have all intervened in support of the position advanced by the Attorney General of Alberta. By order of Chief Justice McGillivray, Mr. R. B. White was appointed to act as counsel to represent the opposite view; he appeared in this Court as well.
II Part IV.1 of the Criminal Code
Prior to the amendment of the Criminal Code by the Protection of Privacy Act, 1973-74 (Can.), c. 50, the interception of private communications was not regulated by Parliament. Part IV.1 of the Criminal Code now contains a complete legislative statement of the legal limits to the invasion of privacy permitted in the conduct of an investigation.
A review of this legislation reveals that Parliament has struck a balance between the privacy interest of the individual and the competing interest of the public in law enforcement: R. v. Commisso, [1983] 2 S.C.R. 121, at pp. 124-25, per Lamer J. The interpretation this legislation should receive in light of this balance of competing interests has been aptly described by Zuber J.A. in R. v. Welsh and lannuzzi (No. 6) (1977), 32 C.C.C. (2d) 363 (Ont. C.A.), at p. 369:
It is apparent that in enacting the Protection of Privacy Act, 1973-74 (Can.), c. 50, now Part IV.1 of the Code, Parliament had two objectives. The first was to protect private communications by prohibiting interception and to render inadmissible evidence obtained in violation of the statute. The second objective, which balances the first, was to recognize the need to allow the appropriate authorities, subject to specific controls, to intercept private communications in the investigation of serious crime, and to adduce the evidence thus obtained.
This legislation must be viewed and interpreted with a full, fair and realistic appreciation of both these objectives.
[page 703]
The right to private communication cannot be diluted simply because unlawful interceptions are made by honest men whose motives are simply to detect crime.
The main features of the regulatory scheme Parliament chose to accomplish these competing objectives are readily apparent. First, a group of indictable offences has been created prohibiting: (a) the interception of private communications by anyone by means of any form of listening device (s. 178.11(1)); (b) the purchase, sale or possession of a listening device (s. 178.18(1)); (c) the disclosure of any private communication intercepted by the use of any such device (s. 178.2). Additionally, a court may order punitive damages up to $5,000 be paid to any person aggrieved by the unauthorized interception of private communication or the improper disclosure of them. Secondly, Parliament has created, as exceptions to these prohibitions, procedures subject to judicial control for the lawful interception of private communications in limited circumstances (ss. 178.11(2), 178.12, 178.13). Finally, Parliament has established rules regarding the admissibility of evidence obtained by the interception of private communications (s. 178.16).
The provisions of Part IV.1 of particular relevance to this appeal are as follows:
178.1 In this Part,
"authorization" means an authorization to intercept a private communication given under section 178.13 or subsection 178.15(2);
"electromagnetic, acoustic, mechanical or other device" means any device or apparatus that is used or is capable of being used to intercept a private communication, but does not include a hearing aid used to correct subnormal hearing of the user to not better than normal hearing;
[…]
"private communication" means any oral communication or any telecommunication made under circumstances in which it is reasonable for the originator thereof to expect that it will not be intercepted by any person other than the person intended by the originator thereof to receive it;
[…]
[page 704]
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.
(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;
(b) a person who intercepts a private communication in accordance with an authorization or any person who in good faith aids in any way a person whom he has reasonable and probable grounds to believe is acting with any such authorization;
[…]
178.12 (1) An application for an authorization shall be made ex parte and in writing to a judge of a superior court of criminal jurisdiction, or a judge as defined in section 482 and shall be signed by the Attorney General of the province in which the application is made or the Solicitor General of Canada or an agent specially designated in writing for the purposes of this section by
(a) the Solicitor General of Canada personally, if the offence under investigation is one in respect of which proceedings, if any, may be instituted at the instance of the Government of Canada and conducted by or on behalf of the Attorney General of Canada, or
(b) the Attorney General of a province personally, in respect of any other offence in that province,
and shall be accompanied by an affidavit which may be sworn on the information and belief of a peace officer or public officer deposing to the following matters, namely:
(c) the facts relied upon to justify the belief that an authorization should be given together with particulars of the offence;
(d) the type of private communication proposed to be intercepted;
(e) the names, addresses and occupations, if known, of all persons, the interception of whose private communications there are reasonable and probable grounds to believe may assist the investigation of the offence, a general description of the nature and location of the place, if known, at which private communications are proposed to be intercepted and a general description of the manner of interception proposed to be used;
[…]
178.13 (1) An authorization may be given if the judge to whom the application is made is satisfied
(a) that it would be in the best interests of the administration of justice to do so; and
(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.
[…]
(2) An authorization shall
(a) state the offence in respect of which private communications may be intercepted;
(b) state the type of private communication that may be intercepted;
(c) state the identity of the persons, if known, whose private communications are to be intercepted, generally describe the place at which private communications may be intercepted, if a general description of that place can be given, and generally describe the manner of interception that may be used;
(d) contain such terms and conditions as the judge considers advisable in the public interest;
[…]
III The Issues
The first issue the reference poses is whether Parliament intended, by necessary implication, that an authorization given by a judge should accord the person acting under the authorization power to enter any place to install, monitor, repair or remove a listening device. The second question asks whether a judge may, in granting the authorization, expressly empower the police to make such entry.
Chief Justice McGillivray initially requested that all counsel address whether the Canadian Charter of Rights and Freedoms had any impact on these two questions. The Alberta Court of Appeal did not deal with this point and it was not canvassed in argument before this Court. Consequently,
[page 706]
in this reference, I intend to consider only the questions of statutory interpretation raised.
IV The Existence of Implied Authority
(A) The Nature of the Issue
It is the submission of the Attorney General and his supporting interveners (hereinafter "the appellants") that the power to enter to install a listening device is accorded by necessary implication to any person acting under an authorization granted pursuant to Part IV.1 of the Criminal Code. Nothing in Part IV.1 expressly provides that when an authorization to intercept private communications is made, the power to enter in aid of the interception is included. The Attorney General of Alberta has been compelled to ask, therefore, whether the statute produces that result by implication and to argue accordingly.
The neutral language used by the Lieutenant Governor in Council belies the real significance of the first question and the far-reaching consequences of an affirmative answer to it. Put plainly, the argument is that Parliament intended, although it did not expressly so specify, to sanction otherwise unlawful conduct on the part of the police by permitting them to trespass to intercept private communications.
The police are entitled to take any lawful action in aid of law enforcement. Thus the power of the police to enter to install a listening device when to do so would involve no violation of the law cannot be disputed, so long as this does not conflict with any of the terms imposed in the authorization. There is no need for Parliament to approve either expressly or by implication an otherwise lawful entry undertaken by the police and I do not understand the first question to place this in issue. It is rather the issue of whether Parliament has authorized an illegal entry that lies at the heart of the question.
The appellants' claim that police officers are permitted to enter private premises to install listening devices is broad and indiscriminate. It is worthwhile to examine briefly the consequences of
[page 707]
accepting that such a sweeping right exists. The power so granted would go much further than authorizing surreptitious entry and would allow the police to act openly and utilize whatever means to achieve entry they found most expedient. Thus, access could be obtained by forcing doors or windows or through trickery or coercion. Further, if police acting under Part IV.1 are implicitly authorized to make entry, s. 25 of the Code would permit them to effect such entry by overcoming force a property owner is normally entitled to assert, to prevent anyone, including the police, from entering the premises without permission. If the right exists, it must exist in respect of premises of persons who, at the time the entry is made, are innocent of any offence as well as those who have more than passing acquaintance with the criminal process.
(B) The Common Law of Trespass and Statutory Interpretation
Prima facie, every invasion of property, be it ever so minute and negligible, is a trespass and therefore unlawful. Such trespass may not amount to crime since "breaking the close" simpliciter is not a criminal offence. Nonetheless, entry into the premises of another without either consent or specific legal authorization has always been tortious and unlawful. It is an interference with the common law right to peaceful enjoyment of one's property that has been recognized at least since Semayne's Case (1604), 5 Co. Rep. 91 a; 77 E.R. 194 (K.B.), where it was said at p. 195: "That the house of every one is to him as his castle and fortress, as well as for his defence against injury and violence, as for his repose .... "
As well, it is the gist of the following oft-quoted passage from the great case Entick v. Carrington (1765), 2 Wils. K.B. 275; 95 E.R. 807, at p. 817:
... our law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser, though he
[page 708]
does no damage at all; if he will tread upon his neighbour's ground, he must justify it by law.
The inviolability of a person's property has from earliest times been vigorously asserted and resolutely defended by the courts. Unless lawfully authorized, a police officer has no more right than an ordinary citizen to interfere with a person's property.
The long standing protection the law has accorded rights of property was reaffirmed recently by this Court in Colet v. The Queen, [1981] 1 S.C.R. 2. The issue in Colet was whether a statutory power to seize firearms carried with it, by necessary implication, a power to enter and search. Ritchie J., writing for the unanimous Court, concluded it did not. In his opinion, the police were not entitled to invade the private rights of individuals unless they were expressly authorized to do so.
In rejecting the argument of the Crown that a right of entry and a power of search should be implied, Ritchie J. had this to say, at pp. 8 and 9:
In the final analysis this appeal raises the all important question of whether the property rights of the individual can be invaded otherwise than with specific statutory authority. It is true that the appellant's place of residence was nothing more than a shack or shelter which no doubt was considered inappropriate by the city of Prince Rupert, but what is involved here is the longstanding right of a citizen of this country to the control and enjoyment of his own property, including the right to determine who shall and who shall not be permitted to invade it. The common law principle has been firmly engrafted in our law since Semayne's case....
[…]
. . . it would in my view be dangerous indeed to hold that the private rights of the individual to the exclusive enjoyment of his own property are to be subject to invasion by police officers whenever they can be said to be acting in the furtherance of the enforcement of any section of the Criminal Code although they are not armed with express authority to justify their action.
[page 709]
The decision in Colet is a particular application of a larger canon of statutory interpretation. This canon embodies the presumption in favour of vested rights (see Duff C.J. in Spooner Oils Ltd. v. Turner Valley Gas Conservation Board, [1933] S.C.R. 629, at p. 638) as well as the presumption that express language must be found to demonstrate that a legislative body intended to authorize an act otherwise unlawful at common law. On the necessity of express language see also: S.G.G. Edgar, Craies on Statute Law (7th ed. 1971), pp. 121-22; E.A. Driedger, The Composition of Legislation (1957), p. 127; P. St.J. Langan, Maxwell on Interpretation of Statutes (12th ed. 1969), p. 116.
The requirement for express language was recently invoked by the House of Lords in Morris v. Beardmore, [1980] 2 All E.R. 753. This case raised a question analogous to the one at hand. It involved the power of a constable to require a person to undergo a breath test and the constable's purported right to enter and remain on the person's property to enforce that requirement. The submission was made there, as it is made here, that because there was no express provision prohibiting such entry the right should be inferred. Lord Diplock disposed of this argument in these words, at p. 757:
But, with respect, the boot is on the other leg; if Parliament intends to authorise the doing of an act which would constitute a tort actionable at the suit of the person to whom the act is done, this requires express provision in the statute ... .
The presumption is that in the absence of express provision to the contrary Parliament did not intend to authorise tortious conduct ....
See also the opinions of Lord Edmund-Davies, at p. 759, and Lord Scarman, at p. 763.
To the same effect is the statement of Lord Keith in Finnigan v. Sandiford, [1981] 2 All E.R. 267 (H.L.), at p. 271, in reference to a purported power to enter, " . . . Parliament cannot be taken to have authorised any further inroads on the rights of individual citizens than it specifically enacted".
[page 710]
To overcome this Court's decision in Colet and the broad principle of statutory interpretation it reflects, the appellants advanced several arguments. I propose now to examine each of these in turn.
(C) The Appellants' Arguments
(1) Right of Entry Essential to Give Effect to Parliament's Intent
The appellants submit that the authority to intercept oral communications, as distinct from telecommunications, is unworkable without the right to enter to install listening devices. Such a power should therefore be implied.
There has been no material presented to this Court to support the suggestion that oral communications cannot be effectively intercepted without the power to trespass to install listening devices. Justice MacDonald in Re Application for Authorization to Intercept Private Communications, supra, at p. 46, refused to "accept as a fact that without trespassory entry almost all electronic bugging would be impossible.... " Mr. Justice Stevenson in the Court of Appeal labelled this assertion, correctly in my respectful opinion, "an appeal to convenience" (at p. 633).
I also find the argument singularly unpersuasive. Parliament intended oral communications, as well as telecommunications, should be the proper subject of interception. That much is made clear by the disjunctive definition of "private communications" in s. 178.1; in this regard, see Goldman v. The Queen, [1980] 1 S.C.R. 976.
I am not convinced, however, that the interception of oral communications contemplated by Part IV.1 cannot be accomplished without a trespass. It may well be that, absent covert entry, electronic bugging would be much more difficult, but it is not correct to say that oral communications cannot be intercepted without a power of entry. See Lopez v. United States, 373 U.S. 427 (1963), at pp. 467-68, per Brennan J. dissenting.
[page 711]
If the police obtain the cooperation of a person who does have a legal right of access to a place, there is no need to commit a trespass to install a listening device. Unlawful entry can also be avoided when oral communications are intercepted with the aid of a person fitted with a body pack who enters a place with consent or by the use of a long range parabolic microphone. It seems to me that there are many occasions when oral communications can be effectively intercepted without a power of entry.
The strongest indication that Parliament considered a power of entry was not essential to give effect to an authorization to intercept oral communications is the omission of this power from the extremely detailed provisions of Part IV.1. The fact that they could perhaps be intercepted more frequently and more conveniently if there were such a power constitutes, in my view, scant justification for inferring such a power.
(2) Legislative Background
The appellants invited the Court to look at the material which led up to the introduction of the Protection of Privacy Act in order to determine the intention and objectives present to the minds of the legislators. Particular reference was made to the report of the Canadian Committee on Correction (the Ouimet Committee — 1969) as well as the minutes of the Standing Committee of the House of Commons on Justice and Legal Affairs. In their view, these materials made clear that Parliament was well aware of the fact that surreptitious entry into private premises for the purpose of concealing electronic listening devices was an integral part of electronic surveillance.
Several recent judgments of this Court discuss the admissibility of extrinsic materials where issues of statutory interpretation are raised: Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, at pp. 721-24; Law Society of Upper Canada v. Skapinker, [19841 1 S.C.R. 357; Re: Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297. It is clear from these cases that extrinsic
[page 712]
evidence is not receivable as an aid to the construction of a statute. This is of course true whether or not the case raises a constitutional issue. No direct assistance can be derived, therefore, from the materials relied upon by the appellant in deciding whether Parliament intended by necessary implication to authorize entry.
In any event, I find the committees' reports inconclusive. Nowhere can I find any substantial support for the view that the proponents of the legislation intended implicitly to endorse trespass in aid of authorized interceptions.
I conclude therefore that the legislative background cannot be used as an aid to the construction of Part IV.1 and that, in any event, it does not support the appellants' position.
(3) Dalia v. United States
Considerable reliance was placed upon Dalia v. United States, 441 U.S. 238 (1979), by the parties. Dalia involved constitutional issues as well as questions of statutory interpretation; I shall refer only to the latter which closely parallel the questions in the present appeal.
Part IV.1 of the Criminal Code resembles Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. paras. 2510-2520. Like Part IV.1, Title III does not expressly authorize covert entry to effect authorized interceptions. The majority of the Supreme Court of the United States, per Powell J. (Burger C.J., White, Blackmun and Rehnquist JJ. concurring), held that a power of entry was implicitly included. Justices Stevens, Brennan and Marshall dissented, finding a covert entry to install a bug to be unlawful under the statute. Justice Stewart, the ninth member of the Court, disposed of the matter on constitutional grounds and therefore did not reach the question of statutory construction.
[page 713]
Justice Powell, for the majority, gave three reasons for his holding. His first argument was that Congress had enacted a detailed scheme to authorize interception of private communications, and there was nothing to suggest that authority was limited to cases in which covert entry would not be required. The same could be said about Part IV.1 of the Criminal Code. I agree, however, with the dissenting opinion of Justice Stevens that this argument actually works the other way. Where a legislative scheme speaks in considerable detail about most aspects of an issue, but is silent on one aspect, that silence is particularly telling. To imply permission from silence, in the words of Stevens J. at p. 263, "converts silence into thunder". Parliament's silence cannot be taken to sanction what amounts to breaking and entering. The careful attempt in Part IV.1 of the Code to circumscribe invasions of privacy cannot be seen as an indication of a parliamentary intent to legalize break-ins.
Justice Powell's second argument was that the legislative history of Title III confirmed that Congress meant to authorize covert entries. The dissenting judges drew exactly the opposite conclusion. I have already indicated why I do not consider the legislative context in which Part IV.1 was enacted useful to the resolution of this case.
Justice Powell argued finally that a limitation having the effect of prohibiting covert entry would thwart congressional intention because most bugging requires covert entries. The difficulty with this argument is that it assumes what it is trying to prove. If legislative intention is to enable interception of oral communications by whatever means, prohibition of covert entry indeed thwarts legislative intention. I am unwilling, however, to make the assumption this argument requires. I have already expressed my reasons for concluding that a right of entry is not necessary for the effective operation of Part IV.1.
[page 714]
I agree with the point made in the dissenting opinion of Justice Brennan in Dalia that where private communications have been recorded subsequent to a trespass to install a listening device two invasions of privacy have taken place. The listening to the conversation breaches conversational privacy; the illegal entry breaches physical privacy. A breach of conversational privacy, by itself, is clearly approved of by Part IV.1, provided an authorization has been obtained; a breach of physical privacy is not. I am not prepared to infer that Parliament, by authorizing invasion of privacy in one form, has thereby authorized invasion of privacy in another form.
I would note that scholarly comment on Dalia has been less than panegyrical: Reddick and Westin, Covert Police Break-Ins Create Conflict Among U.S. Circuit Courts, 30 Mercer L. Rev. 707 (1979); Ruffley, Case Comment: Dalia v. United States, 57 J. Urb. L. 588 (1980); Latta, No Requirement of Prior Judicial Approval for Covert Entry to Effect Electronic Surveillance—Dalia v. United States, 29 De Paul L. Rev. 165 (1979); Oshinsky, Judicial Interpretation of Title III—Should Privacy Interests Yield in the Wake of Congressional Silence on Entries to Install Bugs?, 29 Cath. U.L. Rev. 697 (1980); Breaking and Entering into Private Premises to Effect Electronic Surveillance: Dalia v. United States, 39 Md. L. Rev. 754 (1980); Basik, Case comment: Dalia v. United States, 9 Bait. L. Rev. 308 (1980); Cobb, Covert Entry, Electronic Surveillance, and the Fourth Amendment: Dalia v. United States, 40 La. L. Rev. 951 (1980); McNulty, Dalia v. United States: The Validity of Covert Entry, 65 Iowa L. Rev. 931 (1980).
With the greatest respect, I would reject the reasoning of the majority in Dalia.
(4) Section 25 of the Criminal Code
The next submission made by the appellants is that entry to effect an authorization to intercept oral communications is allowed by s. 25(1) of the Criminal Code. Under this view of the matter, s.25(1)
[page 715]
permits such entry because it is required to accomplish an authorized action of the police.
Subsection 25(1) provides:
25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable and probable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
The Alberta Court of Appeal refused to give s. 25(1) the breadth urged by the appellants. Applying my reasoning in Eccles v. Bourque, [1975] 2 S.C.R. 739, Justice Stevenson concluded at p. 632 that s. 25(1) " ... affords a protection for required or authorized acts and the use of force in respect thereof but it begs the question here which is whether someone acting under an 'authorization' is required or authorized by law to trespass."
In Eccles, it was contended that s. 25(1) of the Criminal Code authorized trespass by the police in order to effect an arrest. I responded to this argument in the following terms, at p. 742:
Section 25 does not have such amplitude. The section merely affords justification to a person for doing what he is required or authorized by law to do in the administration or enforcement of the law, if he acts on reasonable and probable grounds, and for using necessary force for that purpose. The question which must be answered in this case, then, is whether the respondents were required or authorized by law to commit a trespass; and not, as their counsel contends, whether they were required or authorized to make an arrest. If they were authorized by law to commit a trespass, the authority for it must be found in the common law for there is nothing in the Criminal Code. [Emphasis added.]
[page 716]
I maintain this view. Subsection 25(1) does not augment the powers of the police beyond those otherwise given to them by the Criminal Code or at common law. Thus, it cannot accord a right of entry. Such a right must be found in Part IV.1 or at common law. Subsection 25(1) is of no assistance to the appellants.
(5) The Common Law Powers of the Police
It was argued that the common law recognizes certain powers inherent in the execution of a police officer's duty. These powers, it is urged, would permit the police to engage in acts necessary to the fulfillment of their duty even though they involve an otherwise unlawful interference with a person's liberty or property, Reliance was placed upon Eccles v. Bourque, supra, and R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), as well as R. v. Stenning, [1970] S.C.R. 631, and Knowlton v. The Queen, [1974] S.C.R. 443.
If a general power of entry existed at common law, it would still be necessary to examine whether such a power could operate in the face of Parliament's failure to include it expressly in the statutory scheme created to regulate the interception of private communications.
I would em