R. v. Wise [1992] 1 S.C.R. 527: -- Electronic surveillance -- Tracking devices -- Police installing unauthorized electronic tracking device in accused's car to monitor his whereabouts -- Whether use of device infringed accused's right to be secure against unreasonable search and seizure -- whether admission of evidence so obtained would bring administration of justice into disrepute

Present: Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Stevenson and Iacobucci JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Constitutional law -- Charter of Rights -- Unreasonable search and seizure -- Electronic surveillance -- Tracking devices -- Police installing unauthorized electronic tracking device in accused's car to monitor his whereabouts -- Whether use of device infringed accused's right to be secure against unreasonable search and seizure -- Canadian Charter of Rights and Freedoms, s. 8.

Constitutional law -- Charter of Rights -- Admissibility of evidence -- Bringing administration of justice into disrepute -- Police installing unauthorized electronic tracking device in accused's car to monitor his whereabouts -- Accused's right to be secure against unreasonable search and seizure infringed -- Whether admission of evidence so obtained would bring administration of justice into disrepute -- Canadian Charter of Rights and Freedoms, s. 24(2).

Criminal law -- Electronic surveillance -- Tracking devices -- Police installing unauthorized electronic tracking device in accused's car to monitor his whereabouts -- Whether use of device infringed guarantee against unreasonable search and seizure in s. 8 of Canadian Charter of Rights and Freedoms -- If so, whether admission of evidence so obtained would bring administration of justice into disrepute under s. 24(2) of Charter.

Appellant was charged with mischief to property. The Crown sought to introduce evidence of his whereabouts obtained through the use of an electronic tracking device (a "beeper") installed in his car. The police had had appellant under surveillance for some time since they suspected him of involvement in a recent murder believed to be linked to a series of similar killings. On July 14, 1987, they had obtained a warrant to search his home and vehicle, but had found nothing to link him to any of the homicides. The police had towed the car to the police station to carry out the search. While it was there, but after the warrant had expired, they installed the beeper. On August 15, the day of the alleged offence, the police had been able to trace the location of appellant's car using the beeper and established surveillance on a vehicle resembling his parked in a driveway. About two hours later, the police heard a loud crashing sound, caused by the felling of a communications tower. Soon after, they observed another vehicle, which was in fact appellant's, pull out of a laneway in a nearby field. On August 26 the police obtained a warrant to search appellant's vehicle. When the car was vacuumed, melted pieces of metal, consistent with the metal guy wires of the communications tower, were found. The constant electronic surveillance was maintained until mid-November, when appellant was arrested on the mischief charge. The trial judge excluded all evidence obtained through the use of the beeper, on the ground that it had been obtained in violation of appellant's right to be secure against unreasonable search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms. He acquitted appellant. The Court of Appeal set aside the acquittal and ordered a new trial.

Held (La Forest, Sopinka and Iacobucci JJ. dissenting): The appeal should be dismissed.

Per Lamer C.J. and Gonthier, Cory and Stevenson JJ.: The installation of the beeper inside the appellant's vehicle constituted an unreasonable search in violation of s. 8 of the Charter. Since the subsequent monitoring of the vehicle invaded a reasonable expectation of privacy, it also constituted a search, and, in the absence of prior authorization, violated s. 8. The search was only minimally intrusive, however. The expectation of privacy in a motor vehicle is much less than in one's home or office. As well, the device used was unsophisticated and inaccurate. It was a very rudimentary extension of physical surveillance, and was attached to the appellant's vehicle, not to the appellant. The police also had a bona fide belief that they were protecting the public when the device was installed, in view of the series of homicides in the rural area in which the appellant lived.

The admission of the evidence in this case would not bring the administration of justice into disrepute. The evidence as to the location of the car would not affect the fairness of the trial. This evidence was real, not conscriptive. There was no police compulsion or enticement which required appellant to enter or drive his car. The beeper merely helped the police to gather evidence which, to a great extent, they had obtained by visually observing the vehicle. The police also acted in good faith in this case. They had reasonable and probable grounds for searching appellant's vehicle when they installed the beeper. While the prolonged electronic monitoring after the metal filings were discovered is difficult to justify, the police obtained the evidence as to the location of the vehicle within a 30-day period, and this was not an unreasonable length of time to maintain surveillance, particularly in light of their obligation to protect the community from the suspected serial killer. There was clearly a pervasive threat of violence and a sense of urgency here. Moreover, the offence in this case is a serious one. The evidence pertaining to the metal pieces should also be admitted, for the same reasons.

Per Sopinka and Iacobucci JJ. (dissenting): The installation of the tracking device in appellant's automobile constituted an unreasonable search in violation of s. 8 of the Charter. It is not necessary to consider whether the surveillance itself would violate s. 8. The admission of the evidence would bring the administration of justice into disrepute. The police knowingly committed an illegal trespass. While they suspected appellant of a serious offence, mere suspicion cannot be used to redeem Charter violations. There is no appreciable distinction between this case and R. v. Kokesch, [1990] 3 S.C.R. 3.

Per La Forest J. (dissenting): The installation of the tracking device in appellant's car constituted an unlawful trespass and violates his privacy rights under s. 8 of the Charter. The use of the device to monitor his movements also violated s. 8. An individual has a reasonable expectation of privacy not only in the communications he makes, but in his movements as well, even when travelling on a public road. This is not a case where the police are monitoring the roads for the purpose of regulating or observing what goes on there. It is a case of tracking the movements of an individual. There is an important difference between courting the risk that our activities may be observed by other persons and the risk that agents of the state, in the absence of prior authorization, will track our every move. It is constitutionally unacceptable that the state should be allowed to rest a justification for the unauthorized electronic surveillance of a given person on the mere fact that that person had been in a situation where he could be the object of scrutiny on the part of private individuals. Whether a person whose movements were surreptitiously tracked had a reasonable expectation of privacy in given circumstances must not be made to depend on the degree to which that person took measures to shield his or her activities from the scrutiny of other persons.

The grave threat to individual privacy posed by surreptitious electronic tracking of one's movement is such as to require prior judicial authorization. The issuance of a search warrant will ordinarily call for an objective showing of reasonable and probable cause, and this should generally be required of those seeking to employ electronic tracking devices in the pursuit of an individual. Since this means of surveillance, if properly controlled, is somewhat less intrusive than electronic audio or video surveillance, it may be possible to establish that judicial officers should be empowered in certain circumstances to accept a somewhat lower standard, such as a "solid ground" for suspicion, if it can be established that such a power is necessary for the control of certain types of dangerous or pernicious crimes.

The evidence obtained through the use of the tracking device should be excluded under s. 24(2) of the Charter. Such evidence would not have existed without the device because visual contact had been lost. Since the violation in this case was intrusive and long-lasting, it was serious. The electronic surveillance continued day and night over many months. The violation was not mitigated by good faith on the part of the police. The police certainly knew they needed a warrant to search the car, and that the warrant they had obtained did not permit what they did, and in fact had expired. The police did not have reasonable and probable cause, but were acting on mere suspicion. The long-term consequences of admitting evidence obtained in such circumstances on the integrity of our justice system outweigh the harm done by this accused being acquitted.

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