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Judicial Authorization for Wiretap - An Illusory Protection

NCJ Number
79947
Journal
Ottawa Law Review Volume: 12 Issue: 1 Dated: (1980) Pages: 215-226
Author(s)
F M Valeriote
Date Published
1980
Length
12 pages
Annotation
The privacy protection provided by the judicial authorization for wiretap in Canada is examined.
Abstract
Apart from the dispute over the morality of wiretap itself, judicial authorization for a police wiretap is the most controversial of the few exceptions to the criminal code's general prohibition against the interception of otherwise private communications. In fact, judicial authorizations for wiretaps in Canada have become an illusory protection for police abuses of privacy. The authorization process begins with an application by a designated investigator to his/her superiors. Approval of the application is then required by the solicitor or attorney general, depending on the legislation that will be contravened. Finally, the consent of a judge of a superior court of criminal jurisdiction or a county court judge, satisfied of the necessity of the interception, must be obtained. Authorization is granted on a showing of reasonable suspicion that a crime has been or will be committed and that all other means of obtaining sufficient evidence have been exhausted. Authorization hearings are heard ex parte and in camera. In practice, the police seek out judges who will offer little challenge to their evidence of suspicion and the exhaustion of all other means of investigation. In such circumstances, the judge plays only a ministerial role. Granted that giving the accused the possibility of contesting the evidence presented at the hearing would undermine the secrecy required for an effective wiretap, there should be provision for a defendant to challenge the validity of the wiretap authorization evidence upon which subsequent criminal proceedings may be based. Currently, this is not allowed. Whether through a voir dire or a pretrial review, the court should be permitted to go behind the face of the authorization document to determine its lawfulness. Failure to show such lawfulness would result in the exclusion of any evidence obtained in the wiretap. A total of 85 footnotes are listed.

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