The Supreme Court of Canada issued an important decision last week on the wiretap provisions in the Criminal Code that should have an impact on the lawful access/online surveillance bill currently before Parliament. In R. v. Tse , a unanimous court ruled that the current emergency wiretap provision that allows for surveillance without a court order is unconstitutional. The court’s analysis is important because it speaks to one of the major criticisms of Bill C-30 – the lack of accountability. In this particular case, the court rules that warrantless wiretap may be permissible in emergency situations, but that such circumstances make an accountability particularly important:

The jurisprudence is clear that an important objective of the prior authorization requirement is to prevent unreasonable searches. In those exceptional cases in which prior authorization is not essential to a reasonable search, additional safeguards may be necessary, in order to help ensure that the extraordinary power is not being abused. Challenges to the authorizations at trial provide some safeguards, but are not adequate as they will only address instances in which charges are laid and pursued to trial. Thus, the notice requirement, which is practical in these circumstances, provides some additional transparency and serves as a further check that the extraordinary power is not being abused. In our view, Parliament has failed to provide adequate safeguards to address the issue of accountability in relation to s. 184.4. Unless a criminal prosecution results, the targets of the wiretapping may never learn of the interceptions and will be unable to challenge police use of this power.

The emphasis on the need for a reporting requirement – even after the fact – is based on the view that it is perhaps the best form of accountability. The court cites with approval language from the Ontario Criminal Lawyers’ Association that “the right to privacy implies not just freedom from unreasonable search and seizure, but also the ability to identify and challenge such invasions, and to seek a meaningful remedy. Notice would enhance all these interests. In the case of a secret warrantless wiretap, notice to intercepted person stands almost alone as an external safeguard.”

Given the court’s emphasis on notice, it is striking that Bill C-30 moves in precisely the opposite direction. As David Fraser has discussed, the lawful access bill has a gag order the explicitly prohibits disclosure of the warrantless disclosure. The provision is designed to stop telecom and Internet companies from disclosing their mandated disclosures to affected subscribers, even if they ask. In fact, the lack of accountability extends beyond just the statutory gag order on notice. Law enforcement officials – including Competition Bureau investigators – can demand subscriber data without a warrant and without any justification for the demand. Given the missing accountability measures in Bill C-30, last week’s Supreme Court decision sends a strong message that the lawful access bill is constitutionality vulnerable and provides yet another reason to withdraw the bill and hit the reset button.