R. v. Tse (Y.F.A.) et al., (2012) 429 N.R. 109 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Modaver and Karakatsanis, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 13, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 429 N.R. 109 (SCC);2012 SCC 16;257 CRR (2d) 295;429 NR 109;JE 2012-794;[2012] SCJ No 16 (QL);344 DLR (4th) 599;99 WCB (2d) 750;280 CCC (3d) 423;91 CR (6th) 223;321 BCAC 1;[2012] 1 SCR 531;[2012] EXP 1459

R. v. Tse (Y.F.A.) (2012), 429 N.R. 109 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] N.R. TBEd. AP.009

Her Majesty The Queen (appellant) v. Yat Fung Albert Tse, Nhan Trong Ly, Viet Bac Nguyen, Huong Dac Doan, Daniel Luis Soux and Myles Alexander Vandrick (respondents) and Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Criminal Lawyers' Association (Ontario), British Columbia Civil Liberties Association and Canadian Civil Liberties Association (intervenors)

(33751; 2012 SCC 16; 2012 CSC 16)

Indexed As: R. v. Tse (Y.F.A.) et al.

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Modaver and Karakatsanis, JJ.

April 13, 2012.

Summary:

Section 184.4 of the Criminal Code permitted any peace officer, without prior judicial authorization, to intercept private communications in urgent circumstances where (1) he believed on reasonable grounds that he could not first, with reasonable diligence, obtain judicial authorization, (2) the interception was immediately necessary to prevent an unlawful act that would cause serious harm to any person or property, and (3) either the originator or recipient of the communication was the person who would perform the unlawful act likely to cause serious harm or was the victim, or the intended victim, of the harm. The police used s. 184.4 to intercept telephone calls from an alleged kidnapping victim to his daughter stating that he was being held for ransom. Approximately 24 hours later, the police obtained judicial authorization under s. 186 to continue the interceptions.

The British Columbia Supreme Court, in a judgment reported [2008] B.C.T.C. Uned. 839, declared s. 184.4 was unconstitutional where it constituted an unreasonable search and seizure (Charter, s. 8) and was not saved as a reasonable limit prescribed by law under s. 1. The Crown appealed directly to the Supreme Court of Canada.

The Supreme Court of Canada dismissed the appeal, affirming the constitutional invalidity of s. 184.4. Section 184.4, as drafted, failed to strike a reasonable balance between the right to be free from unreasonable search and seizure and society's interest in preventing serious harm. Section 184.4 infringed s. 8 because it lacked a mechanism for oversight and, more particularly, because it failed to require notice to persons whose private communications were intercepted. The declaration of invalidity was suspended for 12 months to allow Parliament to redraft a constitutionally compliant provision.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See first Criminal Law - Topic 5273.6 ].

Civil Rights - Topic 3107

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Void for vagueness doctrine - [See second Criminal Law - Topic 5273.6 ].

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Overbreadth principle - [See second Criminal Law - Topic 5273.6 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - [See first Criminal Law - Topic 5273.6 ].

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - [See first Criminal Law - Topic 5273.6 ].

Criminal Law - Topic 5273.5

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Emergency wiretap authorization - Section 188 of the Criminal Code "permits temporary authorizations (for up to 36 hours) by specially appointed judges, on the application of specially designated peace officers, if the urgency of the situation requires interception of private communications before an authorization could, with reasonable diligence, be obtained under s. 186." - The Supreme Court of Canada stated that "we conclude that s. 188 is available for urgent situations without the requirement of a written affidavit. This does not, however, obviate the need for unauthorized emergency interceptions under s. 184.4. ... applications under s. 188 may be made orally. The evidence in support of an oral application should be given on oath or solemn affirmation. ... the proceedings should be memorialized, by way of a verbatim recording or some other means." - See paragraphs 22, 40.

Criminal Law - Topic 5273.6

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Emergency wiretap based on urgency prior to judicial authorization - Section 184.4 of the Criminal Code permitted any peace officer, without prior judicial authorization, to intercept private communications in urgent circumstances where (1) he believed on reasonable grounds that he could not first, with reasonable diligence, obtain judicial authorization, (2) the interception was immediately necessary to prevent an unlawful act that would cause serious harm to any person or property, and (3) either the originator or recipient of the communication was the person who would perform the unlawful act likely to cause serious harm or was the victim, or the intended victim, of the harm - The Supreme Court of Canada held that "section 184.4 contains a number of legislative conditions. Properly construed, these conditions are designed to ensure that the power to intercept private communications without judicial authorization is available only in exigent circumstances to prevent serious harm. To that extent, the section strikes an appropriate balance between an individual's s. 8 Charter rights and society's interests in preventing serious harm. However, in our view, s. 184.4 falls down on the matter of accountability because the legislative scheme does not provide any mechanism to permit oversight of the police use of this power. Of particular concern, it does not require that notice be given to persons whose private communications have been intercepted. For this reason, we believe that s. 184.4 violates s. 8 of the Charter. We are further of the view that the breach cannot be saved under s. 1 of the Charter. Accordingly, we would declare the section to be unconstitutional. By way of remedy, we have concluded that the declaration should be suspended for a period of 12 months to afford Parliament sufficient time to bring the section into conformity with the Charter." - See paragraphs 10 to 11.

Criminal Law - Topic 5273.6

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Emergency wiretap based on urgency prior to judicial authorization - Section 184.4 of the Criminal Code permitted any peace officer, without prior judicial authorization, to intercept private communications in urgent circumstances where (1) he believed on reasonable grounds that he could not first, with reasonable diligence, obtain judicial authorization, (2) the interception was immediately necessary to prevent an unlawful act that would cause serious harm to any person or property, and (3) either the originator or recipient of the communication was the person who would perform the unlawful act likely to cause serious harm or was the victim, or the intended victim, of the harm - The Supreme Court of Canada rejected the submission that the terms "urgency of the situation", "reasonable diligence", "unlawful act" and "serious harm" in s. 184.4 were vague and overbroad - The court stated that "while s. 184.4 is sufficiently flexible to provide for different urgent circumstances that may arise, it is far from vague when properly construed" - See paragraphs 29 to 30.

Criminal Law - Topic 5273.6

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Emergency wiretap based on urgency prior to judicial authorization - Section 184.4 of the Criminal Code permitted any peace officer, without prior judicial authorization, to intercept private communications in urgent circumstances where (1) he believed on reasonable grounds that he could not first, with reasonable diligence, obtain judicial authorization, (2) the interception was immediately necessary to prevent an unlawful act that would cause serious harm to any person or property, and (3) either the originator or recipient of the communication was the person who would perform the unlawful act likely to cause serious harm or was the victim, or the intended victim, of the harm - The Supreme Court of Canada rejected the submission that the police, when intercepting private communications under s. 184.4, must immediately apply for judicial authorization - The court stated that "each case will depend on its own circumstances. However, if the police have not proceeded to seek the appropriate authorization when circumstances allow, they risk non-compliance if they continue intercepting under s. 184.4. ... once s. 184.4 has been invoked, the police must, where possible, move with all reasonable dispatch to obtain a judicial authorization under Part VI of the Code." - See paragraphs 38, 61.

Criminal Law - Topic 5273.6

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Emergency wiretap based on urgency prior to judicial authorization - Section 184.4 of the Criminal Code permitted any peace officer, without prior judicial authorization, to intercept private communications in urgent circumstances where (1) he believed on reasonable grounds that he could not first, with reasonable diligence, obtain judicial authorization, (2) the interception was immediately necessary to prevent an unlawful act that would cause serious harm to any person or property, and (3) either the originator or recipient of the communication was the person who would perform the unlawful act likely to cause serious harm or was the victim, or the intended victim, of the harm - The Supreme Court of Canada held that "the word 'necessary' does not in our view require that unauthorized interception is the only effective means - or even the most effective means available to police. Section 184.4 is not available only as a last resort. ... While the phrase 'immediately necessary' ensures that this power is not available unless there is an emergency, it does not require police to exhaust all other investigative means." - See paragraph 43.

Criminal Law - Topic 5273.6

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Emergency wiretap based on urgency prior to judicial authorization - Section 184.4 of the Criminal Code permitted any peace officer, without prior judicial authorization, to intercept private communications in urgent circumstances where (1) he believed on reasonable grounds that he could not first, with reasonable diligence, obtain judicial authorization, (2) the interception was immediately necessary to prevent an unlawful act that would cause serious harm to any person or property, and (3) either the originator or recipient of the communication was the person who would perform the unlawful act likely to cause serious harm or was the victim, or the intended victim, of the harm - The Supreme Court of Canada held that "we, too, have reservations about the wide range of people who, by virtue of the broad definition of 'peace officer', can invoke the extraordinary measures permitted under s. 184.4. The provision may be constitutionally vulnerable for that reason. That said, we lack a proper evidentiary foundation to determine the matter. Any conclusion must await a proper record. The case at hand involves police officers and no one questions their right to invoke s. 184.4." - See paragraph 57.

Cases Noticed:

Brais v. R., 2009 QCCS 1212, refd to. [para. 4, footnote 1].

R. v. Riley (T.), [2008] O.T.C. Uned. E81; 174 C.R.R.(2d) 250 (Sup. Ct.), agreed with [para. 5].

R. v. Riley (T.), [2008] O.T.C. Uned. E79; 174 C.R.R.(2d) 288 (Sup. Ct.), refd to. [para. 5, footnote 2].

R. v. Deacon (D.) et al., [2008] O.T.C. Uned. T31 (Sup. Ct.), refd to. [para. 5, footnote 3].

R. v. Moldovan (B.), [2009] O.T.C. Uned. P92 (Sup. Ct.), refd to. [para. 5, footnote 3].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 16].

R. v. Duarte - see R. v. Sanelli, Duarte and Fasciano.

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322, refd to. [para. 17].

R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127, refd to. [para. 18].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 18].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 18].

R. v. Zundel (No. 2), [1992] 2 S.C.R. 731; 140 N.R. 1; 56 O.A.C. 161, refd to. [para. 20].

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 248; 322 N.R. 205; 199 B.C.A.C. 45; 326 W.A.C. 45; 2004 SCC 42, refd to. [para. 20].

R. v. Wiggins, [1990] 1 S.C.R. 62; 103 N.R. 118, refd to. [para. 24].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 30].

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 33].

R. v. Silveira (A.), [1995] 2 S.C.R. 297; 181 N.R. 161; 81 O.A.C. 161, refd to. [para. 35].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 35].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 35, footnote 4].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 44].

Jones v. Smith, [1999] 1 S.C.R. 455; 236 N.R. 201; 120 B.C.A.C. 161; 196 W.A.C. 161, refd to. [para. 47].

Child and Family Services of Winnipeg Central v. K.L.W. et al., [2000] 2 S.C.R. 519; 260 N.R. 203; 150 Man.R.(2d) 161; 230 W.A.C. 161; 2000 SCC 48, refd to. [para. 47].

R. v. McCraw, [1991] 3 S.C.R. 72; 128 N.R. 299; 49 O.A.C. 47, refd to. [para. 47].

R. v. Galbraith and Saikaly (1989), 98 A.R. 241; 49 C.C.C.(3d) 178 (C.A.), refd to. [para. 68].

R. v. Laudicina (1990), 53 C.C.C.(3d) 281 (Ont. H.C.), refd to. [para. 69, footnote 5].

R. v. Finlay and Grellette (1985), 11 O.A.C. 279; 52 O.R.(2d) 632 (C.A.), refd to. [para. 77].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 96].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, consd. [para. 100].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 184.4 [para. 14]; sect. 186(1)(b), sect. 188(1), sect. 188(2) [para. 60].

Authors and Works Noticed:

Canada, Standing Committee on Legal and Constitutional Affairs, No. 5, 3rd Sess., 34 Parl. (June 2, 1993), p. 44:10 [para. 28].

Canada, Standing Committee on Legal and Constitutional Affairs, No. 5, 3rd Sess., 34 Parl. (June 15, 1993), p. 48:16 [para. 28].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 20].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 461 [para. 20].

Counsel:

Trevor Shaw and Samiran Lakshman, for the appellant;

Simon R. A. Buck and Dagmar Dlab, for the respondent, Yat Fung Albert Tse;

Brent V. Bagnall, for the respondent, Nhan Trong Ly;

Howard Rubin, Q.C., and David Albert, for the respondent, Viet Bac Nguyen;

Kenneth S. Westlake, Q.C., for the respondent, Huong Dac Doan;

Ian Donaldson, Q.C., for the respondents, Daniel Luis Soux and Myles Alexander Vandrick;

Cheryl J. Tobias, Q.C., and Nancy Dennison, for the intervenor, the Attorney General of Canada;

Michal Fairburn and Grace Choi, for the intervenor, the Attorney General of Ontario;

Brigitte Bussières and Gilles Laporte, for the intervenor, the Attorney General of Quebec;

Joseph S. Wilkinson and Fredrick Schumann, for the intervenor, the Criminal Lawyers' Association (Ontario);

Roy W. Millen and Laura M. Cundari, for the intervenor, the British Columbia Civil Liberties Association;

Christopher A. Wayland and H. Michael Rosenberg, for the intervenor, the Canadian Civil Liberties Association.

Solicitors of Record:

Attorney General of British Columbia, Vancouver, B.C., for the appellant;

Wilson, Buck, Butcher & Sears, Vancouver, B.C., for the respondent, Yat Fung Albert Tse;

Brent V. Bagnall, Vancouver, B.C., for the respondent, Nhan Trong Ly;

Howard Rubin, Q.C., Vancouver, B.C., for the respondent, Viet Bac Nguyen;

Kenneth S. Westlake, Q.C., Vancouver, B.C., for the respondent, Huong Dac Doan;

Donaldson's, Vancouver, B.C., for the respondents, Daniel Luis Soux and Myles Alexander Vandrick;

Attorney General of Canada, Vancouver, B.C., for the intervenor, the Attorney General of Canada;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;

Attorney General of Quebec, Sainte-Foy, Quebec, for the intervenor, the Attorney General of Quebec;

Lacy Wilkinson, Toronto, Ontario; Stockwoods, Toronto, Ontario, for the intervenor, the Criminal Lawyers' Association (Ontario);

Blake, Cassels & Graydon, Vancouver, B.C., for the intervenor, the British Columbia Civil Liberties Association;

McCarthy Tétrault, Toronto, Ontario, for the intervenor, the Canadian Civil Liberties Association.

This appeal was heard on November 18, 2011, before McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Modaver and Karakatsanis, JJ., of the Supreme Court of Canada.

On April 13, 2012, the following judgment was delivered in both official languages jointly by Moldaver and Karakatsanis, JJ.