Privacy Advisor

CANADA—Bill Would Allow for Warrantless Communication Interception

May 1, 2013


By John Jager, CIPP/US, CIPP/G, CIPP/C

In February, the government of Canada introduced Bill C-55 in response to the Supreme Court’s decision in R. v. Tse. The bill amends the Criminal Code relating to the authority to intercept private communications without prior judicial authorization. It received royal assent on March 27 and comes into force six months after that date.

Background

In Tse, the Supreme Court found that section 184.4 of the Criminal Code, which allows for the interception of private communications without a warrant in exigent circumstances that pose a serious risk of serious harm, is unconstitutional. Although lawful in scope—there are stringent conditions to ensure the provision is only used in exigent circumstances—the provision fell down on the matter of accountability, thereby violating Section 8 of the Charter of Rights and Freedoms, as there is no requirement for an "after-the-fact" notice to persons whose private communications have been intercepted or any other kind of accountability or oversight mechanism—such as a requirement to keep records of interceptions or a report to Parliament. The court concluded that section 184.4 is constitutionally invalid legislation, but the declaration of invalidity was suspended for 12 months to allow Parliament to redraft a constitutionally compliant provision.

Bill C-55

Bill C-55 provides a legal basis for police officers to intercept communications without a warrant when the situation is urgent, the need is immediate or when it is required to prevent serious harm. However, it restricts this power to police officers; previously, section 184.4 granted this power to “peace officers,” which can include mayors or wardens, justices of the peace, bailiffs, prison guards and customs inspectors.

The bill amends subsection 195(1) of the Criminal Code to require the federal Minister of Public Safety and Emergency Preparedness to prepare an annual report relating to interceptions made under Section 184.4, “if the interceptions relate to an offense for which proceedings may be commenced by the Attorney General of Canada.” The report is to include, inter alia, the number of interceptions made, the number of parties subject to interception against whom proceedings were commenced, the number of parties who became subject to proceedings as a result of interceptions to whom they were not a party and duration of each interception and the aggregate duration of all interception related to an investigation. Section 195(5) of the Criminal Code is also amended to require the Attorney General of each province to make available to the public a report that includes the same information.

The bill adds a new section to the Criminal Code requiring that a notice is to be provided to any person who is subject to an interception of a private communication. The notice must be provided within 90 days, but extensions may be granted by a superior court judge. However, each extension must not exceed three years.

Some Thoughts from the Office of the Privacy Commissioner of Canada

During her testimony to the Senate Standing Committee for Legal and Constitutional Affairs, Chantal Bernier, assistant privacy commissioner, noted that Bill C-55 represents a “positive development for privacy” by making it clear that only police officers may make use of section 184.4—and only in instances of certain serious crimes—by requiring transparency “through ongoing public reporting” and imposing an accountability mechanism, by requiring notification to affected individuals. The Office of the Privacy Commissioner believes that Bill C-55 is an effective response to the Supreme Court’s decision in Tse.

John Jager, CIPP/US, CIPP/G, CIPP/C, is vice president of research services at Nymity, Inc., which offers web-based privacy support to help organizations control their privacy risk. He may be reached at john.jager@nymity.com.