Wakeling v United States of America: Supreme Court Upholds Wiretap Disclosure Provision

In Wakeling v United States of America, 2014 SCC 72, the Supreme Court of Canada (“SCC”) considered the constitutionality of the legislative scheme surrounding the disclosure of information collected through wiretaps to foreign governments. In a 3-1-3 split decision, the Court dismissed this challenge to the Criminal Code, RSC 1985, c C-46. While grappling with a difficult issue, the various judgements highlighted concerns regarding the need to respect Parliament’s role in crafting legislation and the use of information once in the hands of foreign governments.

Facts

The appellant, Andrew Wakeling was a target of a Canadian drug investigation and his conversations were subsequently lawfully monitored and recorded by the RCMP. These recordings were disclosed to the United States and an attempted shipment of 46, 000 ecstasy pills was intercepted. As a result, the United States wanted to extradite Mr. Wakeling from Canada.

At his extradition hearing the appellant argued that this disclosure breached sections 7 and 8 of the Charter and the wiretapped conversations should not be admitted. The extradition judge rejected these arguments and this decision was upheld by the Court of Appeal for British Columbia. Mr. Wakeling then appealed to the SCC.

The sharing of recorded conversations was authorized by section 193 of the Criminal Code. While section 193(1) makes it an offence to disclose wiretapped conversations, subsection (2) states:

Subsection (1) does not apply to a person who discloses a private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof or who discloses the existence of a private communication

[…]

(e) where disclosure is made to a peace officer or prosecutor in Canada or to a person or authority with responsibility in a foreign state for the investigation or prosecution of offences and is intended to be in the interests of the administration of justice in Canada or elsewhere; or….

While Mr. Wakeling also challenged section 193(2)(b) of the Criminal Code, and section 8(2)(f) of the Privacy Act, but all three judgement held that only section 193(2)(e) need be considered.

Issues

1) Does the impugned legislative scheme infringe section 7 of the Charter for being vague and overbroad?
2) Does the impugned legislative scheme infringe section 8 of the Charter as the disclosure constitutes a search?
3) Are these violations saved by section 1?

Analysis

Justice Moldaver – Deference to Parliament’s Legislative Scheme

Writing for himself and Justices Le Bel and Rothstein, Justice Moldaver dismisses Mr. Wakeling’s appeal. In his view, while the disclosure is not a search, section 8 protection should be extended to them because without section 193(2)(e), such disclosures would be illegal. He then went on to apply the section 8 framework to the legislation. The first factor is that a search must be authorized by law and he quickly holds that the disclosure was made to “a person or authority with responsibility in a foreign state for the investigation or prosecution of offences” and that it was “intended to be in the interests of the administration of justice in Canada or elsewhere.”

Next, the law itself must be reasonable. Here, Justice Moldaver holds that the section 7 challenges can be subsumed into the section 8 analysis. In essence, Mr. Wakeling argued three things: that section 193(2)(e) was vague, overbroad, and that it lacked accountability mechanisms. The appellant argued that the legislation allows a limitless scope of communication to be intercepted and disclosed. However Justice Moldaver disagrees; he holds that while broad, there are limits to the type of information that can be disclosed, to whom it can be released, and for what purpose. With regards to vagueness, Justice Moldaver rejects the argument that terms such as “the administration of justice” do not pass constitutional muster.

Finally, Justice Moldaver also dismisses the argument that the legislative scheme requires more robust accountability mechanisms and considers whether annual reports to parliament would be helpful. Expressing concern for the respect of Parliament’s jurisdiction, he states that, “…Parliament could require that disclosures made under section 193(2)(e) be included in an annual report. But that is a policy decision, and it is important that this Court separate policy matters from constitutional imperatives — especially in this context where international relations are involved” (para 71). Further, recognizing the concerns that once released the information may be misused, he states that this risk can never be fully mitigated and that: “Any attempt to micromanage Parliament in this context must be approached with great care” (para 75).

Finally, Justice Moldaver finds no issues with the reasonableness of the disclosure itself, but recognizes that in some cases, where Canada knows, or ought to know that a foreign government would use the information to exploit or harm another Canadian, a failure by the disclosing parties to provide limits and caveats on the disclosure may make it unreasonable. As such, he concludes that there is no section 8 breach and dismisses the appeal.

Chief Justice McLachlin – Refusing to Examine the Legislative Scheme

While agreeing that the appeal should also be dismissed, in the Chief Justice’s view, an examination of section 193(2)(e) is only required if the appellant could show that his section 8 rights were infringed. In her view, he failed to demonstrate so.

Chief Justice McLachlin holds that once a search warrant is granted for the interception of information, a section 8 violation could only occur if the information is used unreasonably. As she states “…[A] valid warrant sanitizes the state intrusion on privacy, as long as the execution of the warrant is reasonable and the information is used for purposes of law enforcement.” She adds that in the case at hand, none of the concerns regarding rendition to a foreign country, or the death or torture of the subject arise.

Again showing respect for Parliament’s role and ultimately dismissing the appeal, the Chief Justice states that: “In the absence of a demonstrated breach of s. 8 rights flowing from those provisions, Parliament’s choice must be allowed to stand, in my respectful opinion” (para 100).

Justice Karakatsanis – Concerns Regarding the Use of Disclosed Information

Writing in dissent for herself and Justices Abella and Cromwell, Justice Karakatsanis’ judgment emanates from the policy concern of giving foreign government unfettered discretion with the disclosed information. In her view: “To render the scheme constitutional, Parliament must require the disclosing party to impose conditions on how foreign officials can use the information they receive, and must implement accountability measures to deter inappropriate disclosure and permit oversight” (para 105). She references the Maher Arar case to express the seriousness of the issue.

After stating that she agrees with most of Justice Moldaver’s reasoning, she objects on two grounds. In short, Justice Karakatsanis holds that there are no limits on how the information disclosed will be further used. Moreover, she is troubled by the fact that no accountability mechanism requires information on “what is being shared, with whom [and] for what purpose…” (para 135). As she states: “At a minimum, the disclosing party should be required to create a written record of what information is shared with whom, with some obligation to make the sharing ultimately known to the target or to government” (para 142). In her view, Mr. Wakeling’s section 8 rights have been infringed and this cannot be saved by section 1. She would have allowed the appeal and ordered a new hearing.

Conclusion

While adjudicating a difficult issue, the Court is split, with three judges writing their own decisions. All in all, in a 4-3 decision, the Court upholds the impugned scheme, with Justice Moldaver and the Chief Justice holding that deference is owed to Parliament’s policy choices and the efforts required to curtail transnational crime. However, there is a strong dissent, warning that the unfettered power foreign states have over such information may lead to dire consequences.