Split court backs police’s powers to share wiretaps with foreign nations

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The Supreme Court of Canada has allowed Canadian police authorities to continue sharing information gathered on wiretaps with foreign countries – for now.

But in a rare three-way split, the court couldn't decide whether such information sharing is constitutionally acceptable, in a case involving allegations of international drug export by a Canadian – perhaps because the shadow of Maher Arar, a Canadian torture victim not even involved in the case, loomed over it.

Mr. Arar, an Ottawa computer engineer, was shipped to Syria by U.S. authorities in 2002, after the RCMP sent faulty intelligence to the United States implicating Mr. Arar as a person of interest in a terrorism investigation. He was held in Syria for a year, and tortured, before being returned to Canada.

The case before the Supreme Court on Friday involved suspected drug trafficker Andrew Wakeling of Lillooet, B.C., who had been ordered extradited to Minnesota on charges of conspiring with others in 2006 to export 46,000 ecstasy pills after Canadian authorities, with a judge's authorization, placed wiretaps on his phone calls. The authorities sent that information to U.S. authorities without explicit approval from a judge.

Mr. Wakeling argued that Canadian police should need to obtain a judge's permission to share wiretap information with foreign countries, and to notify the subject of the wiretaps, to protect the privacy rights of Canadians.

Three Supreme Court judges agreed with him, citing Mr. Arar's case as an example of the dangers. "The torture of Maher Arar in Syria provides a chilling example of the dangers of unconditional information sharing," Justice Andromache Karakatsanis wrote, joined by Justice Rosalie Abella and Justice Thomas Cromwell.

Three judges said the Criminal Code's wiretap provisions are reasonable, and international co-operation is essential to the prevention, detection and prosecution of cross-border crime. They also said those provisions, and Section 8 of the Canadian rights charter, which protects against unreasonable search and seizure, have safeguards against potential dangers.

Where Canadian authorities knew, or should have known, that the information they shared could be used in "unfair trials, to facilitate discrimination or political intimidation, or to commit torture or other human rights violations – concerns rightly expressed by Justice Karakatsanis – S. 8 requires that the disclosure, if permissible at all, be carried out in a reasonable manner," Justice Michael Moldaver wrote, joined by Justice Louis LeBel and Justice Marshall Rothstein. "In the most serious examples, where there are no steps that could be taken to mitigate the danger, S. 8 forbids disclosure entirely."

A seventh judge, Chief Justice Beverley McLachlin, said that the police acted reasonably in Mr. Wakeling's case, and that it was not necessary to deal with the constitutional issues at this point.

The 3-3-1 ruling has the effect of leaving the Criminal Code's wiretap provisions in place. The code allows information from wiretaps to be shared if it is in the interests of the administration of justice, in either Canada or the foreign country that receives it.

"Police can continue to share wiretap information but they're expected to do so responsibly and reasonably, and the police face criminal prosecution or Charter claims if they don't," Michael Feder, a Vancouver lawyer who represented the B.C. Civil Liberties Association in the case, said in an interview. The split between the two camps that addressed constitutionality "is really about whether that is adequate," he said.

The ruling puts at risk the ability of Canada's intelligence agencies to share information abroad in the fight against terrorism, University of Ottawa law professor Craig Forcese says.

Even the group of three judges that accepts the constitutionality of police information sharing says it needs to be expressly authorized by Parliament, he noted. No law, not even a proposed new law expanding the powers of the Canadian Security Intelligence Service to gather information outside of Canada, says directly that Canada's intelligence agencies have the right to share information with other countries, he said.

Jean Paul Duval, a spokesman for the Public Safety department, which oversees CSIS, said it is reviewing the decision, but noted that it said the sharing of lawfully intercepted wiretap information facilitates crime investigation.