R. v. Thompson  2 S.C.R. 1111: Interception of private communications -- Validity of authorization -- Sufficiency of description -- Places of interception: public pay phones and residential premises -- Authorizations permitting private communications to be intercepted at all places resorted to by named persons within the province -- Whether authorizations valid -- Surreptitious entry into residential premises to install intercepting devices ---- No conditions included in authorizations to protect public interest -- Whether authorizations violate s. 8 of the Canadian Charter
Present: Dickson C.J. and Lamer C.J. and McIntyre, Wilson, La Forest,
L'Heureux-Dubé and Sopinka JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law -- Interception of private communications -- Validity of authorization -- Sufficiency of description -- Places of interception: public pay phones and residential premises -- Authorizations permitting private communications to be intercepted at all places resorted to by named persons within the province -- Whether authorizations valid -- Whether public pay telephones should be specifically mentioned on face of authorizations -- Criminal Code, R.S.C. 1970, c. C-34, ss. 178.12(1)(e), 178.13(2)(c), 178.16(1).
Criminal law -- Interception of private communications -- Validity of authorization -- Renewal or new authorization -- Police obtaining new authorization prior to expiration of original authorization -- New authorization including new parties and locations for surveillance -- Whether appropriate to seek new authorization rather than renewal -- Criminal Code, R.S.C. 1970, c. C-34, Part IV.1.
Criminal law -- Interception of private communications -- Admissibility of evidence -- Proof of resorting to a place -- Authorizations permitting private communications to be intercepted at all places resorted to by named persons within the province -- Whether intercepted private communication in itself can afford evidence that a person resorted to "a place" -- Criminal Code, R.S.C. 1970, c. C-34, Part IV.1.
Constitutional law -- Charter of Rights -- Unreasonable search and seizure -- Interception of private communications -- Authorizations permitting private communications to be intercepted at all places resorted to by named persons within the province -- Surreptitious entry into residential premises to install intercepting devices -- Intercepting devices installed on public pay telephones -- No conditions included in authorizations to protect public interest -- Whether authorizations violate s. 8 of the Canadian Charter of Rights and Freedoms -- If so, whether communications intercepted under authorizations should be excluded pursuant to s. 24(2) of the Charter -- Criminal Code, R.S.C. 1970, c. C-34, Part IV.1.
The appellants were charged with conspiracy to import marijuana. The Crown's case consisted principally of private communications which were intercepted under three judicial authorizations. Paragraph (c) of these authorizations permitted the interception of telephone communications at the addresses of the persons named in the authorizations "or elsewhere in the Province of British Columbia resorted to" by these persons. The first authorization named the appellants T, A and R, and the affidavit filed with it before the authorizing judge revealed that the police intended to intercept communications at public pay telephones. Acting under this authorization, the police installed intercepting equipment at several residences, hotel rooms and public pay telephones. A second authorization overlapped the first authorization by two days. It named ten persons, including all appellants except M. Prior to the expiry of the second authorization, a third authorization was granted naming twelve persons, including all appellants except M. Under the second and third authorizations, intercepting equipment was installed on other pay telephones. The equipment installed during the first authorization remained in place in most of the pay telephones until the end of the investigation. This interception capability was not mentioned in the subsequent authorizations. On some occasions during the investigation, tape recorders installed on pay telephones were left on "automatic play mode" overnight, intercepting the conversations of persons not covered by the authorizations. The trial judge, on a voir dire, held all but nine interceptions inadmissible. The Crown called no evidence before the jury and the trial judge directed the jury to acquit the appellants. The Crown's appeal was allowed and a new trial ordered. This appeal is to determine (1) whether an authorization permitting the interception of private communications at all places resorted to by named persons within the province was lawful; (2) whether such places could include public pay telephones; (3) whether new authorizations, rather than renewals, were permissible; (4) whether an intercepted communication could in itself provide evidence that a person resorted to a place at which communications were intercepted; and (5) whether unsupervised electronic surveillance of public pay telephones and surreptitious entry into private dwellings constituted unreasonable searches or seizures contrary to s. 8 of the Canadian Charter of Rights and Freedoms.
Held (Wilson and La Forest JJ. dissenting): The appeal should be dismissed.
Per Dickson C.J. and Lamer C.J. and L'Heureux-Dubé and Sopinka JJ.: The authorizations complied with the requirements of Part IV.1 of the Criminal Code. The authorizations did not permit the interception of communications of anyone anywhere within the province. They contained limitations. Paragraph (c) was limited to named persons and paragraph (d) was limited to persons who resort to or use named premises or communicated with named persons. As to place, each was limited to places resorted to by five named individuals. Paragraphs (c) and (d), therefore, did not delegate to the police the determination as to whether the interceptions would assist in the investigation. This determination was made by the authorizing judge on the basis of the connection to the target persons.
The authorizations were not invalid because they failed to list pay telephones as places where private communications could be intercepted. A more specific description could have been given in view of the fact that the police knew that the named persons intended to resort to pay telephones. However, subject to its effect on s. 8 of the Charter, this in itself does not render the authorizations unlawful. Section 178.13(2)(c) of the Code does not state that it must be the most specific description. It requires only a general description.
The police should apply to renew an existing authorization when they want to extend its term and leave its other provisions unchanged. Where the authorization has expired or where it is sought to extend the scope of surveillance, however, the proper course is to seek a new authorization. Here, the second and third authorizations widened the scope of the first authorization, adding between them nine new targets for interception. It was therefore proper for the Crown to apply, under Part IV.1 of the Code, for new authorizations instead of renewals.
On a proper interpretation of the "resort to" clause, the police can only intercept communications of the target person at a place if they have evidence to believe, on reasonable and probable grounds, that this place was resorted to or would be resorted to by the target. An intercepted communication cannot in itself provide evidence that a person "resorted to" a particular place, bringing that interception into compliance with the authorizations. Before the evidence of the conversation can be admitted, there must be other evidence before the trial judge indicating that the location was a place resorted to or used by the accused. This can be established through a previously lawfully authorized interception. In this case, the interceptions made under paragraph (c) of the authorizations are lawful under Part IV.1 of the Code, provided that the police acted upon sufficient evidence that a person "resorted to" a place. The interceptions made at places for which such evidence was absent were unlawful and, therefore, inadmissible under s. 178.16(1) of the Code.
Electronic surveillance constitutes a "search or seizure" within the meaning of s. 8 of the Charter. Paragraph (c) of the authorizations did not per se violate the s. 8 requirement of prior judicial authorization demanded under Hunter. The "resort to" clause did not enable the police to usurp the function of the judge. The authorizing judge's determination as to whether there are reasonable and probable grounds to believe that the interception of an individual's private communications will assist the investigation can be made with respect to certain classes of places under s. 178.13 of the Code. To require a determination by the police officers that they have reasonable and probable grounds for believing that the place complies with the general description before the authorization is acted upon is an additional safeguard to the dictates of s. 178.13. From the perspective of the rights of a person who is a target of the authorization, if it is reasonable to intercept the communication of a person at a specified address, it is equally reasonable to intercept his communication at another place to which he resorts. The nature of the invasion of a person's privacy does not change with that person's location.
However, while the nature of the invasion of a person's privacy is constant, what changes with that person's location is the possible effect on third parties. Where the police are aware, prior to seeking an authorization, that the targets make extensive use of pay telephones, the authorizations, to comply with s. 8, must at a minimum provide that conversations at a pay telephone should not be intercepted unless there are reasonable and probable grounds for believing that a target is using the telephone at the time that the listening device is activated. The police cannot simply install a listening device and leave it running indiscriminately in hope that a target may come along. While the failure to impose conditions protecting the public interest under s. 178.13(2)(d) of the Code is not unlawful because the power is discretionary, the failure to do so in the present circumstances was unreasonable. Therefore, any evidence obtained as a result of interceptions at pay telephones in the absence of reasonable and probable grounds for believing that a target was using the telephone was obtained in contravention of s. 8.
Interceptions obtained by means of surreptitious entry into residential premises which were not specifically mentioned on the face of the authorizations also violated s. 8 of the Charter. In the absence of express mention of a private residence in the authorizations, the authorizing judge could not under s. 178.13(2)(d) of the Code impose conditions to safeguard the public's interest in privacy within the sanctuary of a private dwelling.
Unlawful interceptions -- in the sense of non-compliance with the provisions of Part IV.1 of the Code -- must be excluded under s. 178.16(1) of the Code. Interceptions which fall within the terms of the Code but nonetheless violate s. 8 of the Charter are inadmissible only if their admission would bring the administration of justice into disrepute. In this case, interceptions at places for which the Crown cannot adduce sufficient evidence of "resorting to" are unlawful and, hence, inadmissible. The interceptions obtained at pay telephones and residential premises in contravention of s. 8 of the Charter are admissible. The breach of s. 8 was not deliberate, wilful or flagrant. The police officers acted entirely in good faith. They were acting in accordance with what they had good reason to believe was the law at the time. The fact that the telephone number of some of the persons named in the first authorization was for a pay telephone was before the authorizing judge. The police acted in accordance with authorizations which complied with the provisions of the Code. The admission of evidence gathered in these circumstances would not bring the administration of justice into disrepute.
Per Wilson J. (dissenting): Because the tapping of public pay phones gives rise per se to massive violations of the rights of third parties to be free from unreasonable searches as guaranteed by s. 8 of the Charter, an order made pursuant to Part IV.1 of the Code, which is intended by the judge to authorize the tapping of such phones, must do so expressly and not by implication under a general "resort to" clause. When the authorizing judge expressly states in the authorization precisely what he intends to permit the police to do, he shows on the face of the authorization that he has turned his mind to the extent of the invasion of privacy sought by the police and has considered whether in the particular circumstances before him such an invasion is warranted. Unless the issuing authority does this, it cannot be known under the Wilson regime whether the authorizing judge exercised a judicial discretion in granting the authorization or whether he intended or did not intend the "resort to" clause to cover the tapping of public pay phones. The validity of an authorization made under s. 178.13 of the Code, therefore, should be determined not by asking whether it can on its face conceivably be construed as authorizing what was done but by asking whether it is clear from the face of the authorization that the authorizing judge in fact authorized what was done in the exercise of a discretion based on all the relevant facts. If that question is answered in the negative, or if there is any doubt about the answer, then the authorization and the interceptions made pursuant to it are invalid and the evidence acquired is inadmissible pursuant to s. 178.16(1) of the Code.
La Forest J.'s reasons on the matters not specifically addressed here were agreed with.
Per La Forest J. (dissenting): Under the Criminal Code, the "resort to" clauses are not ipso facto invalid. Section 178.13(2)(c) of the Code gives a judge a discretion to insert such a clause in an authorization to electronically intercept private communications. This discretion, however, should not be routinely exercised. Rather, it must be exercised consistently with the purpose of Part IV.1 of the Code, which is to protect the privacy of individuals. The discretion must also be read to conform with the Charter. When an invasion of privacy becomes necessary in the course of an investigation, the police must, under Part IV.1, seek an authorization and give the judge highly specific information so that he can properly exercise his discretion to set limits on unnecessary intrusions on privacy. Section 178.13(2)(c) requires a description of the place of interceptions where possible and interceptions should accordingly be limited, in all but the narrowest of circumstances, to places for which information was available at the time of the application for the authorization. An authorization may properly incorporate a "resort to" clause, but only where the police are not in a position to give a general description of the places of interceptions.
Surreptitious electronic interception of private communications constitutes a "search or seizure" within the meaning of s. 8 of the Charter. These interceptions strike at the heart of the privacy rights s. 8 is designed to protect. While Part IV.1 of the Code, read as a whole, is constitutional, the granting of a particular authorization may offend s. 8. A "resort to" clause does not generally meet the standard of reasonableness set forth in Hunter for such a clause is effectively a delegation to the police of the discretion which under the Hunter standard must, where feasible, be exercised by a judge or other independent person. It is only reasonable to insert a "resort to" clause in those limited circumstances where Parliament, under Part IV.1 of the Code, intended that a judge could grant an authorization to intercept communications in an unspecified place. When a "resort to" clause has been properly included in an authorization, the police must themselves act reasonably to comply with the high standard set by s. 8. This includes the duty to act on the basis of reasonable and probable cause in placing intercepts under a "resort to" clause.
In the present case, the police were aware from the outset that those under investigation resorted to and made use of pay phones, and that they used a code to advise one another of the locations where they could be reached. While this type of scheme warrants the granting of an authorization that includes a "resort to" clause, in spite of the fact that interceptions could be placed at several known locations, the present authorizations did not respect the requirements of Part IV.1 of the Code or of s. 8 of the Charter and are therefore void. Interceptions of public pay phone conversations have serious implications for the privacy of third parties. The authorizing judge should have directed his mind to these considerations and exercised his discretion to limit the powers of the police by setting them out in the authorizations. Nothing in the authorizations indicates any exercise of the discretion. Simply authorizing the police, in their sole discretion, to use any electronic means of interception anywhere the suspects may go is incompatible with the Code and unreasonable under the Charter. This effectively amounts to a failure on the judge's part to exercise his discretion and a delegation of that discretion to the police. The authorizations should have made specific reference to pay phones. What the authorizations permit must not be left to guesswork or interpretation by the police.
An intercepted communication cannot in itself provide evidence that a person "resorted to" a particular place, bringing that interception into compliance with the authorizations. The existence of extrinsic evidence is always necessary.
The police should have applied for renewals instead of fresh authorizations with respect to the persons and addresses stated in the first authorization. On a proper interpretation of s. 178.13 of the Code, an application for renewal should be made if continued surveillance is contemplated and fresh authorizations should be sought only with respect to persons or places added to the investigation. Section 178.13(3) has been carefully tailored to permit a judge to assess whether the electronic search should continue or whether it has become overly prolonged and unwarranted. Accordingly, as regards the persons and places contemplated in the first authorization, any evidence gained during the course of the subsequent authorizations is inadmissible. The second and third authorizations may be severed, however, and, if otherwise lawfully obtained, are valid in respect of the persons and places therein added.
The information obtained from the pay phones known at the time of the second and third authorizations is inadmissible. A "resort to" clause cannot cover specific locations that are already known by the police. Under s. 178.13(2)(c) of the Code, Parliament requires that a description of the place of interception must be given to the judge authorizing the interception where this is possible at the time. To ignore this requirement defeats Parliament's intention that electronic invasions of privacy, necessary in the interests of law enforcement, be authorized by a judge. Further, for an authorization to comply with s. 8 of the Charter, all the proposed places of interception known to the police when the application is made must be described in reasonably specific terms. If a place is intercepted under a "resort to" clause following that authorization, it must similarly be described in any subsequent authorization or renewal. It is incumbent on the police, as agents of the state, to supply this information. There is no question that it was feasible in this case for the police to supply the information regarding the pay phones they had already "bugged" when they applied for the second and third authorizations. These authorizations fail to meet the Hunter requirement that a search and seizure requires pre-authorization by a judicial officer where this is feasible, and are therefore unreasonable.
Interceptions obtained by means of surreptitious entry into residential premises which were not specifically mentioned on the face of the authorizations also violated s. 8 of the Charter. There is a clear distinction between a breach of privacy occasioned by an interception accompanied by surreptitious entry and one that is not. Surreptitious entry strikes at a right that, though bound up to some degree with the privacy rights protected by Part IV.1 of the Code, is nevertheless an independent and distinct right. Given that two distinct constitutionally protected interests are engaged when surreptitious entry is effected pursuant to an authorization to intercept private communications under s. 178.13(1) of the Code, it follows that invasion of either right should be countenanced solely on the basis of the Hunter standard. Accordingly, the authorizing judge must be placed in a position to consider the matter.
Since the evidence in this case was obtained in violation of the provisions of Part IV.1 of the Code, it is inadmissible under s. 178.16 of the Code. It is thus unnecessary to consider whether the admission of this evidence would be also inadmissible for breach of the Charter under circumstances that would bring the administration of justice into disrepute as provided by s. 24 of the Charter.
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