Canada: Police Do Not Have Power To Wiretap Without Warrant

omega6 sends this excerpt from The Star: "The Supreme Court of Canada struck down Friday warrantless wiretap powers that police have in cases of emergency. ... Ruling in a 2006 British Columbia kidnapping case, the country’s top court said a 1993 provision of the Criminal Code is unconstitutional because there is no accountability or oversight for the warrantless searches, either to the person wiretapped or in reports to Parliament. The unanimous ruling was written by rookie judges Michael Moldaver and Andromache Karakatsanis. The case revolves around police intercepting the calls of the family of Peter Li, the kidnap victim."

Comments

Don't get your hopes up just yet

[Anonymous Coward]

I'm sure the U.S. Supreme Court will just overrule them.

Yay Canada

[drwho]

Yes, I am ready to move there, if they'll take me. NS or PEI I'd like. Now, le tme in! I am smart and have a degree from a good college!

Re:Yay Canada

[modernzombie]

I live in NS, it is very nice. Lots of scenic rural areas and you're never that far from the [only] city.

Re:Yay Canada

[needs2bfree]

PEI is the same as NS, only more potatoes.

Re:Yay Canada

[TheSpoom]

You can check your eligibility at Citizenship and Immigration Canada. They even have a self-assessment test to see if you qualify as a Skilled Worker.

Re:Yay Canada

[needs2bfree]

Good point. I guess you never appreciate what you have till it's gone. BTW, my company in PEI needs senior web developers and project manager (I know, who doesn't). Mail me at magic_man87 at hot mail dot com. (spam account which i check once a week)

Re:Yay Canada

[cpu6502]

Actually Canada is less free than the U.S. in many respects. I'm too lazy to dig-up the details, so I'll just pull it out of my memory, from when I read the articles 2 years ago.

There was an author wrote a book that he considered inoffensive but a Muslim priest filed a charge anyway. No big deal; it's protected as free speech right? Nope. He found himself drug into the Canadian court for charges of hate speech. They did eventually let him go, but not until he had wasted half-a-decade and nearly $100,000 fighting the charges. LINK - http://www.nypost.com/p/news/opinion/editorials/item_6dD0aACtm0IHKpZ76wqqaM

Also PEI? You won't find much use for your college degree there. That's a farming state... I mean province. They have about as much electronic industry as Maine.

Re:Yay Canada

[Beerdood]

Nah, trust me, move as soon as you can, it's not nearly as bad as it seems here. We certainly don't like Harper & the conservative government - but the level of crazy in the conservatives here doesn't even come close to a Bachman / Santorum level.

There have been numerous conservative scandals in the news in the last year or so, but I've still yet to hear a fellow Canuck say "That's it! I'm sick of this country - I'm moving to America!"

Re:Yay Canada

[Walking The Walk]

[offtopic_shameless_plug]My company in also needs some senior developers for our PEI office, mostly for Java client/server work. Don't email me, just click the Careers link on our website.[/offtopic_shameless_plug]

On topic, I'm glad to see at least some of our justices are taking their jobs seriously. Appointed by Stephen Harper, yet curtailing government invasion into private lives. A nice breath of fresh air in a recent gale of anti-privacy legislation. (Thanks Michael Geist, for keeping us abreast of all the government's IT shenanigans!

Re:Yay Canada

[tqk]

Saying "fuck it, I'm moving" is the same stripe of "I've got mine, jack" that's at the root of much of what's gone wrong down there. By moving, you making it worse, twice.

Voting with his feet is all that's left to him, and likely lots more effective than trying to change anything via his nanoscopically valuable vote. The US won't be fixed short of outright revolt and revolution. It's way too far gone and has been for decades. We're just seeing the fruit of it culminating now.

Besides, Canada can always use smart people to help pay for the welfare state.

Re:Yay Canada

[realityimpaired]

Obviously you haven't lived in a province where then NDP has ran the show before. They have knack for running things into the ground and getting shown the curb rather unceremoniously. The PCs in Alberta going to find out how that feels in a few weeks.

Ontario was the only province where they fucked things up, and that NDP leader was Bob Rae.... guess who he's running with now.

Spending money on education and health care end up costing the economy much less in the long term than cutting them... the cons would rather mortgage the future for a short term gain than actually fix anything.

This is madness!

[Jawnn]

If we strike down unconstitutional laws, and give back to the people their rights under that constitution, the terrorists... lose?! But the (alarmist lawmakers) said that if we didn't suspend all those rights the terrorists would win...

more and more

[v1]

Canada is looking like a good alternative to the USA. At least when "bad laws" do manage to get passed, they bother to get rid of them from time to time. Here anyway, anything that makes the police's job easier is apparently considered an OK exception to the constitution. :(

Re:more and more

[flyingfsck]

Well, the underground railroad has always run *from* the USA *to* Canada. The US may have a big statue of Libertas in the New York harbour, but the US has never really been the land of the free. That title belongs to Canada.

Re:more and more

[w_dragon]

That's only a problem in the winter. The other 3 months of the year are great!

Re:more and more

[Galestar]

I'm from Canada and I love the legal system but hate the weather. I've joked several times that Canada needs to buy a large strip of land in California and create a new province.

Re:more and more

[Synesthes]

You cannot own a gun in Canada? Seriously?

No, you certainly can.

There are three classes of firearms licenses:
- Non-Restricted - things like rifles and shotguns
- Restricted - Handguns, short rifles/shotguns, and some other random restrictions (scary looking guns, for example)
- Prohibited - Short barrel handguns, fully automatic rifles, etc

To get your firearms license, you have to (optionally) take a firearms safety course and then write (or challenge) the exam, where you demonstrate safe handling and use of the firearms, as well as knowledge of the firearms regulations.

To get a permit for a restricted license, there's an additional course and exam. Also, restricted firearms are limited to government approved firing ranges - no taking them out into the bush to shoot cans.

Prohibited licenses are not issued, only given to people 'grandfathered' in to the licensing system. Once they die off, there will be no more prohibited class.

For any of these, you submit ID, proof of exam, personal questionnaire, and $$$ to the government, where they perform a criminal record check and reference check. Fired from your job recently? They'll look into that. On anti-depressants? They'll look into that. And yes, they do check your references - they checked mine.

So yes, you can. But it's a lengthy process.

A step in the right direction

[bobwrit]

Hopefully, Canada will begin to take a slightly more critical look to the whole concept of 'Emergency Powers'. I mean, here in the US(as an example), we've entertained the concept that if we're in a war, or the president has been given war powers, that he has the right to suspend the population's rights. Albeit, this isn't new(we suspended a lot of rights during WWII, at least. see here: http://en.wikipedia.org/wiki/Japanese_American_internment ), but we just need to get rid of this idea. Just because we're in war, doesn't mean that we're not human.

Maybe it is time to move back ...

[Impish]

I've been in the U.S.A. for seven years now and it seems to have gone more and more downhill.

- I was sitting in a room with a bunch of Americans during Thanksgiving and mentioned how much I disliked the TSA and the new scanners (back when they were new) and to a man they all said "We need the better security."
- I then tried to steer the conversation towards their rights to travel between states (in regards to if you refuse the pat down/scan they won't let you travel) and they said inter-state travel was a privilege. I was gobsmacked.

The socialist leaning, big government Canadian was more worried about his personal rights then the freedom loving Americans! Now if only the housing prices would recover ....

Written by "rookie" judges?

[Walking The Walk]

They may be new to the supreme court, but they're hardly rookie judges! Michael Moldaver was a judge on the Supreme Court of Ontario 20 years ago, and Andromache Karakatsanis was a judge on the same court 10 years ago, after being Deputy Attorney General of Ontario.

Re:Too long

[Hamsterdan]

Since when are police officers punished for breaking the law? at worse they're gonna be suspended *with* pay or relegated to other duties.

Re:C-30 your next

[Scrameustache]

The supreme court suggested that the law be chaged so that after the facts the cops need to fill out a form explaining why they did it. C-30 already includes a provision requiring the cops to rubber stamp their own actions afterwards.

Re:C-30 your next

[Scrameustache]

Someone tried to assassinate the prime minister in the 90's, but couldn't get past Canada's final boss: The prime minister's wife wielding an Inuit soapstone carving. True story.

Two important facts.

[BitterOak]

If you read the decision, you'll see two very important things.

First, the justices didn't say the concept of the law is unconstitutional. Because the provision only applies in exigent circumstances, where "an officer believes on reasonable grounds that the interception is immediately necessary to prevent an unlawful act that would cause serious harm, provided judicial authorization could not be obtained with reasonable diligence", the justices said the provision would be constitutional on those grounds. However they ruled it unconstitutional on the grounds there is no oversight provision built into statute, and therefore police could use it to silently intercept all sorts of communications and no one would be the wiser. Only if someone is charged criminally, would they be (1) made aware of the intercept and (2) be able to challenge it in court. The justices did say that if parliament added a notice provision to the statute, in which the intercepted party were notified after the fact then the statute would be constitutional.

Second, the court suspended the application of their judgement for 12 months to give Parliament the opportunity to amend the statute to bring in line with the constitution, which they will most likely do.

Re:Conflicted

[DM9290]

you don't understand the law or what happened here.

in this case the evidence obtained by the warrantless tap was PERMITTED at trial. The police were following the law, and acting in good faith, and their actions were in the public good, and it would not bring the administration of justice into disrepute to allow the evidence.

The court found that the provisions allowing warrantless tapping in those limited emergency situations were CONSTITUTIONALLY VALID. i.e. Warrantless wiretapping is OK in limited emergency circumstances where it would be impossible to get a warrant fast enough.

However the court found the law to be defective because the government made no provision for any kind of supervision of these wiretaps. No reporting to anybody. No oversight by anybody. The wiretaps just take place and then nobody knows.

The court said the law should have provisions for reporting and oversight on such wiretaps, so that the subject of the wiretap can challenge them and the public can be confident they are not being abused. The court voided the law but suspended the ruling for 12 MONTHS, so that the government could fix the law.

the current law essentially allows SECRET warrantless wiretaps. that is unconstitutional.

The court never ruled that warrantless wiretaps themselves are never justified, merely that the government can't go around doing it without oversight and reporting.