Thursday » July 24 » 2008
Court limits police wiretaps
B.C. ruling makes emergency surveillance illegal without judge's approval
Neal Hall
Vancouver Sun
Tuesday, February 26, 2008
CREDIT: Ian Lindsay/Vancouver Sun Files
Graham McMynn, joined by his mother Joanne and father Robert, answers questions about his state of mind at the happy end of his eight-day kidnap ordeal.
In a ruling that has national ramifications, a B.C. Supreme Court judge has struck down a section of the Criminal Code that allowed police to intercept private conversations without a judge's authorization.
The section applied to emergency situations when a person's life is in danger.
Justice Barry Davies ruled last Friday that Section 184.4 of the code is unconstitutional because it violates the "Section 8" rights of six people accused of kidnapping.
Section 8 of the Charter of Rights and Freedoms covers the right to be free from unreasonable search and seizure.
Since the ruling was made by a justice of a superior court, it applies across Canada. But it will not take effect immediately.
While Davies declared the law was constitutionally invalid, he decided his ruling will not take effect for either 18 months, or 30 days after the charges in the case in question have been resolved, whichever is longer. That will give Parliament time to fix the deficiencies in the law.
In an excerpt of his ruling made public Monday, Davies said he was particularly concerned about the lack of a requirement for notice to be given to persons whose communications have been intercepted, and the lack of any requirement for police to report to the government justice officials when they have used the section.
Notice would at least provide a constitutional safeguard, he said.
He imposed a ban on details of the kidnapping case that led to the ruling.
It was identified only as the case of "Six Accused Persons," because evidence will be heard at a jury trial next fall. The judge said he wanted to "avoid any tainting of any jury pool or any prejudice to a fair trial."
Sec. 184.4 was introduced in 1993 by then-justice minister Perrin Beatty in a package of Criminal Code amendments concerning electronic wiretapping.
It allows police to intercept private communications without judicial authorization if there are "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."
The finding that the law breaches Canada's constitution could affect the current Vancouver trial of five men accused of kidnapping former University of B.C. student Graham McMynn, who was held for eight days in 2006 before he was rescued by police.
The police investigating that case used an emergency wiretap without a judge's authorization.
McMynn has testified in the trial that his kidnappers threatened to kill him.
Defence lawyers are expected to argue at the McMynn trial that since Sec. 184.4 is unconstitutional, emergency wiretap evidence gathered by Vancouver police should be excluded.
Police and prosecutors said Monday they were reviewing the judge's 170-page decision to determine how it will affect policing and other cases before the courts.
"We're reviewing it right now," said Const. Tim Fanning of the Vancouver police department, adding police would make no other immediate comment.
The RCMP were also reviewing the ruling, said Const. Annie Linteau.
"We're in the midst of a comprehensive review," chimed in Crown counsel Stan Lowe of the criminal justice branch, a division of the attorney-general's ministry that oversees criminal prosecutions in B.C.
"It's going to take some time to assess the ramifications of this decision, not only in the current case but in other cases," Lowe said.
The branch won't decide yet whether an appeal is warranted because it is an interim ruling that will require further argument at trial to see if the wiretap evidence can be saved under another section of the Charter, Lowe added.
Defence lawyer Simon Buck said the defence in the McMynn case plans to argue that the emergency wiretap evidence should be excluded.
He added Sec. 184.4 is a very useful tool for police and is being used more often in kidnapping cases.
"With the proliferation of kidnapping cases in B.C., we're seeing it used more often," Buck said. "We've got three cases just in our office."
The ruling by Justice Davies is available on the Internet at:
http://www.courts.gov.bc.ca/Jdb-txt/SC/08/02/2008
BCSC0212.htm
