As the Canadian Charter of Rights and Freedoms nears its 30th anniversary, a balanced decision on crime and wiretapping shows a Supreme Court attuned to the need for community safety, but willing to prod Parliament to ensure police can be held accountable when given extra powers.
The law at issue allows police to listen to someone else’s telephone conversation without seeking a judge’s authorization – in life-or-death situations such as bomb threats, children at risk or hostage-takings in which asking for that authorization would not be practical. The case at hand, R. v. Tse, involved the daughter of an alleged kidnapping victim in British Columbia who began receiving phone calls from her father, saying he was being held for ransom. Police tapped the phone calls, and within 24 hours asked for and received judicial permission to continue to do so.
It’s a good law. Privacy isn’t absolute and doesn’t exist in a vacuum. The right to life, liberty and security of the person in serious danger is also a constitutional right, as the Supreme Court pointed out, refreshingly. The two newest judges on the court, Mr. Justice Michael Moldaver and Madam Justice Andromache Karakatsanis, who co-wrote the unanimous ruling, cited former chief justice Antonio Lamer, who wrote that the interests of someone who needs police are “closer to the core of the values of dignity, integrity and autonomy than the interest of the person who seeks to deny entry to police who arrive in response to the call for help.”
The trial judge in this case had seemed to suggest that police could have made a fast oral statement to a judge and received authorization, but the Supreme Court wisely dismissed that notion as “highly unrealistic.”
Still, the court, like the trial judge, balked at the lack of accountability. Even after-the-fact notice to those involved would create a useful and constitutionally necessary check on wrongful use of this police power, the court said. Sensibly, it would not insist on imposing other forms of accountability, such as an annual report to Parliament on uses of these warrantless wiretaps.
This is a law that applies when every minute counts. It is not the beginnings of a police state, and the Supreme Court, with 30 years of Charter cases under its belt, struck the right balance.