CBC News is reporting that between 2000 and 2008, Canadian police forces used secret warrantless wiretaps in at least 267 cases. In Canada, emergency wiretaps can be conducted outside of any system of oversight, leading to concern over potential abuse.
Typically, police wiretaps must be supervised by a court, but in cases of emergency the Criminal Code grants police special powers under Section 184.4:
Interception in exceptional circumstances
184.4 A peace officer may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication where
(a) the peace officer believes on reasonable grounds that the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained under any other provision of this Part;
(b) the peace officer believes on reasonable grounds that such an interception is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property; and
(c) either the originator of the private communication or the person intended by the originator to receive it is the person who would perform the act that is likely to cause the harm or is the victim, or intended victim, of the harm.
The use of emergency wiretaps is not new, and as in the case of Graham McMynn discussed in the article, often important. However, what is disturbing in the Canadian implementation is the absence of transparency and accountability.
- Transparency: With ordinary wiretaps, there is a requirement to notify the target of the intercept once the investigation has been completed. There is no such requirement for emergency wiretaps, meaning that the targets will only discover they have been wiretapped if the case goes to court and the wiretap is used in evidence. Additionally, we have no clear picture of how often these secret wiretaps are used, or what they are used for. Police agencies must report their court ordered wiretapping activities to Parliament yearly, detailing the number of wiretaps authorized and the kinds of cases they were authorized for.
- Accountability: In the United States, wiretaps can be started without a court order in the case of an emergency, but law enforcement must seek authorization from a judge within three days of starting the intercept, bringing the emergency powers under the control of the court. There are no such provisions in Canada. Just as we have no way to know how often s. 184.4 wiretaps are used, we have no way to know if they are used appropriately.
As the Ministry of Public Safety pushes for broader police "lawful access" powers, it is important to examine the powers they already do have. As it stands, the surveillance powers afforded Canadian police are overly broad, and should be brought within a system of accountability and oversight.