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Canada Communications Privacy The Courts Your Rights Online

Canada: Police Do Not Have Power To Wiretap Without Warrant 133

Posted by Soulskill from the unless-it's-on-opponents-of-the-maple-leafs dept.
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."
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Canada: Police Do Not Have Power To Wiretap Without Warrant More

Canada: Police Do Not Have Power To Wiretap Without Warrant

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  • Don't get your hopes up just yet (Score:5, Funny)

    by Anonymous Coward on Friday April 13, 2012 @12:46PM (#39676597)

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

    • It was my understanding that US law already supersedes all international law and laws created by sovereign nations. Why would they need to overrule it if they do not acknowledge the validity of Canadian courts in the first place?

    • Re: (Score:1)

      by Anonymous Coward

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

      Doesn't matter. We have Obama protecting our rights, he who PROMISED to overturn the draconian Patriot Act.

    • They will not bother, US Surpreme court or any is just to slow and it gets leaked to the world.

      RCMP and CSIS are above the law. This is more like a ruse to come clean. Wasn't just USA that had McCarthyism. Canada is a statism state, between Saudi and USA. Government in Canada has monitored Canadians without warrants for 5+ decades at least.

      Cops here can spy on anyone except the corrupt MPs, judges and the well connected. General population is wide open.

      BTW, RCMP only get their man if it is politically

  • Yay Canada (Score:4, Insightful)

    by drwho ( 4190 ) on Friday April 13, 2012 @12:50PM (#39676661) Homepage Journal

    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!

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

      • I grew up in NS. The only problem is if you work in a sector like most of us do here on Slashdot, you are pretty much regulated to working in the one city Halifax. Those kinds of jobs just do not exist outside of there. Unless of you want to try and open up an independent PC shop or something, or can somehow convince your employer to telecommute.

        It is pretty great there and I hope to eventually move back some time (Ontario now).

    • PEI is the same as NS, only more potatoes.
      • And nicer beaches
        • 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 (Score:4, Interesting)

            by Walking The Walk ( 1003312 ) on Friday April 13, 2012 @02:31PM (#39678135)

            [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 [accreon.com].[/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 [michaelgeist.ca], for keeping us abreast of all the government's IT shenanigans!

    • Re: (Score:1, Insightful)

      by Anonymous Coward

      We don't want you. We want you to stay home and get involved and sort out your country. That would have a greater beneficial effect, here and there.

      Put it this way: it's nice to be good neighbours with good neighbours.

      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.

      • Re: (Score:3)

        by tqk ( 413719 )

        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.

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

      • And it's not all that hard to qualify if you're in IT - even without a degree, if you have experience to compensate.

        (Just got my Canadian permanent residence a month ago; three years in the country from there, and you can apply for citizenship - much easier and faster than in U.S.)

    • 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 $100,0

      • Re: (Score:1)

        by Anonymous Coward

        America doesn't have real freedom of speech. To claim otherwise is to ignore the obvious current events, with lawsuits (defamation) or PR problems. You can say what you want, as long as you are willing to be black listed, jobless, in jail, or killed. It is freedom of speech, Lenin-style.

      • Re: (Score:1)

        by Anonymous Coward

        Non sense... Several books have been banned previously by the United States federal government. For instance, the title: "China's Destiny" . It was banned because of the anti-Western sentiment expressed in the book.

      • Ya, I am not sure about the specifics of the US but they do have more Freedoms of speech.
        In Canada all we have, basically is: You can say whatever you want, unless it offended someone, he charges you, and a judge finds that what you have said is unreasonably offensive.
        The law is worded loosely enough that anything can be considered illegal to say, if the judge finds it so.

      • 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.

        Arrested for wearing a t-shirt: USA! USA!

        Tazered and arrested for asking a question at an open mic question period: USA! USA!

        Accused of hate speech: CANADA HAS NO FREEDOMZ! OMG!

      • There may be a lot of farming in PEI, but our two main population centres have plenty of IT opportunities. My company [accreon.com] is looking for a half dozen more senior Java developers, CGI employs twenty times more staff than we do (at various skill levels), and the local government has been advertising the island [islandedition.ca] as a good near-shore location. It's pretty nice to be able to buy a house near the beach, for a reasonable price, and commute to downtown in only 15-20 minutes. And get paid almost what I would get in Ot

    • Re: (Score:2)

      by Nemyst ( 1383049 )

      Better hurry, things are getting uglier by the day...

    • If you want good tech prospects and an economy that just won't quit, try Calgary.

    • We don't need people with degrees, we have plenty of our own. We need "skilled laborers" who will take jobs Canadians don't want, sorry.

      But I am surprised that Harper allowed such a strike against the big brother state, something is not right here. It's a trap.

  • 24 hours to get a warrant under dire circumstances? That's just asking for problems.

    • Re: (Score:2, Interesting)

      by History's Coming To ( 1059484 )
      The sensible thing to do would be to allow retrospective permission from a judge within 24 hours. The officers concerned should have to be able to explain to the judge what their very important reasons were, and if the judge doesn't think they were justified then a hefty sum should be payable to the tapee or other punitive actions should apply.

      There's plenty of similar applications with other laws - eg here in the UK I can commit a crime, explain to the judge that it was the only way to prevent a greate

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

    • Maybe you're right, and that's something they should address separately. Or perhaps they could've just gotten permission from the family directly...? ianal, and all that.

      But either way, it sounds like they had the good sense to avoid doing something stupid under bogus pretenses.

  • This is madness! (Score:3)

    by Jawnn ( 445279 ) on Friday April 13, 2012 @12:53PM (#39676713)
    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 (Score:5, Informative)

    by v1 ( 525388 ) on Friday April 13, 2012 @12:54PM (#39676733) Homepage Journal

    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 (Score:4, Insightful)

      by flyingfsck ( 986395 ) on Friday April 13, 2012 @01:02PM (#39676841)
      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: (Score:1)

      by Anonymous Coward

      O Rly? [torontosun.com]

      • You cannot own a gun in Canada? Seriously?

        • You can own rifles without registration and get permits for handguns.

          You can't buy grenades, flamethrowers, or rocket launchers, although you can find them on the side of the road from time to time.

        • Re:more and more (Score:5, Informative)

          by Synesthes ( 1351729 ) on Friday April 13, 2012 @01:43PM (#39677525)

          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.

          • So nobody can carry a pistol?

            • So nobody can carry a pistol?

              Only cops, soldiers and private security with the right paperwork.

              And since recently, and quietly, cops and soldiers of the U.S. of A.

          • 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.

            There won't be a "prohibited" class for civilian firearm ownership permit, but prohibited weapons are still restricted to military and paramilitary, and cannot be purchased even if you have a license for ownership.

            Also, a PAL (for non-restricted weapons) is fairly easy to get. They basically just do a police records check and fingerprint check, in addition to writing the exam, and you get your license. It can be had in about a week.

        • Re: (Score:1)

          by Desler ( 1608317 )

          The thing is, he guy didn't own a gun. He was arrested purely by the drawing.

    • Re: (Score:1)

      by Anonymous Coward

      From TFA,

      OTTAWAâ"The Supreme Court of Canada struck down Friday warrantless wiretap powers that police have in cases of emergency.

      The high court has given Parliament a year to re-write the law.

      Ruling in a 2006 British Columbia kidnapping case, the countryâ(TM)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.

      So the ruling says the law is unconstitutional. Now, Parliament has 1 YEAR to fix it - it means police can continue to use unconstitutional law as is for 1 YEAR. But the most troubling part is this is a 1993 law! 20 years to "fix it"???? 20 YEARS???

      That's like hailing some judicial decisions in 1950s that the Nazi party didn't have legal rights to issue laws they did in the 1930s... I'm sorry, but 20 years is snail pace.

      The moral of the story is, if the politicians don't give a fuck about the const

    • 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.

      • The Turks and Caicos have been asking to join Canada for years. We can't let them in because:

        They don't speak French. It's Quebec fucking over the rest of the country again.

        • If you were raised in Canada, there really is no one but yourself to blame if you don't know french. Why anyone would rail against the opportunity to be bilingual is beyond me. BTW, its not just Quebec that made french one of our national languages, LARGE parts of Ontario and half the maritimes are also mostly bilingual. Its just the right wing in Canada that likes to point fingers at them.

          • Malheursement, j'ne sais pas une mot francais.

            I learned French in high school in Canada; it's a requirement for graduation. Of course, the rules run by a bureaucrat somewhere (I'm guessing from Ontario) made it so that we learn formal French from France, not Quebecois, which is what they actually speak in Quebec.

            Now, over in BC, there are very very few chances to speak any other language but English. Those of my friends that speak ExL {x| 2 or more} don't like to speak to me in their native tongues. One,

        • Re: (Score:1)

          by Anonymous Coward

          Blame Quebec, it's easy right? In Quebec, there's a minority of bigots who blame English speakers. Let's just keep at it for a few more centuries until things escalate way out of hands again.

          So you know, instead of blaming French Canadian speaker who live in Quebec like me, and who despise the bigotry of a minority who fear the Borg assimilation from English speakers, maybe you should target idiots from both side. People who just like to think their side is better, and who just like to pretend that the real

        • Cut the bullshit or back that up with a citation. The issues related to annexing new territories are more complex than your simplistic and baseless statement would claim, particularly for a country that is not in the habit of colonizing.

          http://en.wikipedia.org/wiki/Turks_and_Caicos_Islands#Proposed_union_with_Canada [wikipedia.org]

          If you want to talk baseless rumour, the dirt (from a politician-friend) is that the acquisition is still on the table. If T&C can show that they can keep their crime and local political issu

    • The Montreal Gazette of today, Saturday April 14th, reported that the Canadian Constitution has displaced the American one, when it comes to models of constitutions for other countries. Africa, Egypt and other countries are modelling their constitution after Canada's.

  • BUT.... (Score:1)

    by Anonymous Coward

    Canadian authorities DO have the right to come into your house and take your Kraft Dinner without a warrant if they're hungry! :(

  • A step in the right direction (Score:5, Insightful)

    by bobwrit ( 1232148 ) on Friday April 13, 2012 @01:03PM (#39676857) Homepage Journal
    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 [wikipedia.org] ), but we just need to get rid of this idea. Just because we're in war, doesn't mean that we're not human.

  • This is common sense.

    The fact that this even has to be discussed is reprehensible. A warrant should always be required for any breach of privacy.

    We've become far too lax in letting "authority" into our lives.

  • If you have to do shortcuts like that then you are doing the LEO thing wrong.

    What you want to do is deliver supplies of Bourbon/Whiskey and or %Critter% to a few of your local judges so that you can show up at His/Her house to get your warrant without having a gavel or something thrown at you.

  • Maybe it is time to move back ... (Score:5, Informative)

    by Impish ( 669369 ) on Friday April 13, 2012 @01:54PM (#39677693)
    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 ....
    • You hang out with idiots. Many (most?) of us feel differently.

      • Re: (Score:1)

        by Impish ( 669369 )
        You would think that from their response, but I like my friends and I don't deal well with idiots. They're all university educated and lawyers or IT workers, so I figured they'd be smart, critical thinkers. You would be surprised (obviously) about how people tend not to think critically about things when emotions / loyalty gets in the way.
        It doesn't help that the government is feeding the fear all the time. /sigh

  • Written by "rookie" judges? (Score:5, Informative)

    by Walking The Walk ( 1003312 ) on Friday April 13, 2012 @02:22PM (#39678027)
    They may be new to the supreme court, but they're hardly rookie judges! Michael Moldaver [wikipedia.org] was a judge on the Supreme Court of Ontario 20 years ago, and Andromache Karakatsanis [wikipedia.org] was a judge on the same court 10 years ago, after being Deputy Attorney General of Ontario.

  • I heard about this on CBC today at lunch.

    I have to say I am a bit conflicted.

    Usually I am the one beating the privacy drum and less impingement on individual rights, however in this particular case, it does make me think.

    This is an instance where the kidnappers let the captives phone family, the family contacted police, the police did apply for a warrant, but knowing it would take 24 hours or something to get, they went ahead and tapped the line anyway because they were fearful something might happen to the

    • Re:Conflicted (Score:4, Informative)

      by DM9290 ( 797337 ) on Friday April 13, 2012 @06:54PM (#39681209) Journal

      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.

    • the police did apply for a warrant, but knowing it would take 24 hours or something to get, they went ahead and tapped the line anyway because they were fearful something might happen to the family

      One solution to this problem is to let the police wiretap without warrants. The better solution is to have a system where a judge can be woken up in the middle of the night with a warrant to sign - if it's truly urgent enough and valid, he can sign it. If it isn't, he can give the cops an earful and tell them to stuff it.

  • I am proud to be a Canadian.

    • Re: (Score:2)

      by doston ( 2372830 )

      I am proud to be a Canadian.

      Except for section 13, right? Got that repealed yet?

      • Except for section 13, right? Got that repealed yet?

        13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

        What is your problem with that?

        Yaz

        • Re: (Score:2)

          by doston ( 2372830 )

          Except for section 13, right? Got that repealed yet?

          13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

          What is your problem with that?

          Yaz

          Oh please. http://en.wikipedia.org/wiki/Canadian_Human_Rights_Commission_free_speech_controversy [wikipedia.org]

          • Oh please.

            Please yourself. We are a nation with many statutes, a very significant number of which have a "Section 13". It's entirely your own fault you didn't bother to specify which Act you were referring to.

            Yaz

            • Re: (Score:2)

              by doston ( 2372830 )

              Oh please.

              Please yourself. We are a nation with many statutes, a very significant number of which have a "Section 13". It's entirely your own fault you didn't bother to specify which Act you were referring to.

              Yaz

              The point was, your government has its flaws, like any power system (maybe a little more hypocitical) and will do what it takes to keep the reigns. And you share some of the blame for not simply asking for clarification. I'm not an expert on the Canadian government, but know it's another government power system and they all have a few ugly things in common. You smug Canadians can get off of your high horses now.

  • Two important facts. (Score:3)

    by BitterOak ( 537666 ) on Friday April 13, 2012 @04:08PM (#39679479)

    If you read the decision [lexum.org], 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.

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