Andrew Gordon Wakeling Appellant v. Attorney General of Canada on behalf of the United States of America and, 2014 SCC 72

SUPREME COURT OF CANADA Citation: Wakeling v.

United States of America, 2014 SCC 72, [2014] 3 S.C.R. 549 Date: 20141114 Docket: 35072 Between: Andrew Gordon Wakeling Appellant and Attorney General of Canada on behalf of the United States of America and Attorney General of British Columbia Respondents And Between: Andrew Wakeling Appellant and Attorney General of Canada on behalf of the Minister of Justice Respondent - and - Attorney General of Ontario, Attorney General of Quebec, Canadian Civil Liberties Association, British Columbia Civil Liberties Association, Information and Privacy Commissioner of Ontario and Privacy Commissioner of Canada Interveners Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.

Reasons for Judgment: (paras. 1 to 82) Concurring Reasons: (paras. 83 to 101) Dissenting Reasons: (paras. 102 to 151) Moldaver J. (LeBel and Rothstein JJ. concurring) McLachlin C.J. Karakatsanis J. (Abella and Cromwell JJ. concurring)

wakeling v. united states of america, 2014 SCC 72, [2014] 3 S.C.R. 549 Andrew Gordon Wakeling Appellant v. Attorney General of Canada on behalf of the United States of America and Attorney General of British Columbia Respondents and Andrew Wakeling Appellant v. Attorney General of Canada on behalf of the Minister of Justice Respondent and Attorney General of Ontario, Attorney General of Quebec, Canadian Civil Liberties Association, British Columbia Civil Liberties Association, Information and Privacy Commissioner of Ontario and Privacy Commissioner of Canada Interveners Indexed as: Wakeling v.

United States of America 2014 SCC 72 File No.: 35072. 2014: April 22; 2014: November 14.

Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ. on appeal from the court of appeal for british columbia Constitutional law — Charter of Rights — Search and seizure — Fundamental justice — Interception of communications — Exemption from offence of disclosing intercepted private communication without consent — Provision of Criminal Code exempting disclosure of lawfully intercepted private communication to person or authority with responsibility in a foreign state for investigation or prosecution of offences if disclosure is intended to be in the interests of the administration of justice in Canada or elsewhere — Whether provision unjustifiably infringes s. 7 or 8 of the Canadian Charter of Rights and Freedoms — Criminal Code, R.S.C. 1985, c.

C-46, s. 193(2) (e). Criminal law — Interception of communications — Disclosure of information — Exemption from offence — Whether exemption provision which authorizes sharing of lawfully obtained wiretap information between Canadian and foreign law enforcement agencies is constitutional — Canadian Charter of Rights and Freedoms, ss. 7 , 8 — Criminal Code, R.S.C. 1985, c. C-46, s. 193(2) (e). The RCMP lawfully intercepted private communications between W and others that revealed a plot to transport drugs into the United States of America.

The wiretap information was disclosed to U.S. authorities, who used it to seize a large quantity of ecstasy pills at a border crossing. The U.S. requested W’s extradition. At the extradition hearing, W submitted that legislation authorizing the disclosure violates ss. 7 and 8 of the Canadian Charter of Rights and Freedoms , and the intercepted communications should not be admitted as evidence. The extradition judge rejected W’s arguments and issued a committal order. The Court of Appeal dismissed the appeal. Held (Abella, Cromwell and Karakatsanis JJ. dissenting): The appeal should be dismissed.

Per LeBel, Rothstein and Moldaver JJ.: The ability to share information between law enforcement agencies facilitates the effective investigation of domestic and multi-jurisdictional crime.

Part VI of the Criminal Code sets out a comprehensive scheme intended by Parliament to exclusively govern the interception and use of private communications for law enforcement purposes. Therefore, there is no need to consider the constitutionality of s. 8(2) (

f) of the Privacy Act . Section 193(2) (

e) of the Criminal Code is the governing provision in this case. Although not structured as an explicit authorizing provision, it implicitly authorizes cross-border

disclosure of lawfully intercepted wiretap information. Accordingly, the arguments raised by W properly go to the constitutionality of s. 193(2) ( e ).

Section 8 of the Charter is engaged. Although a disclosure is not a search within the meaning of s. 8 , s. 8 protects wiretap targets at both the interception and disclosure stages under

Part VI of the Criminal Code . Wiretap interceptions are highly invasive and pose heightened privacy concerns. There is a residual, albeit diminished, expectation of privacy in wiretap information after it has been lawfully collected. W’s s. 7 arguments need not be addressed. They are subsumed under the s. 8 analysis. In order for a search to be reasonable under s. 8 , it must be authorized by law, the law itself must be reasonable, and the search must be carried out in a reasonable manner. This same framework applies, mutatis mutandis , to disclosures made pursuant to s. 193(2) ( e ).

Applying this framework to the facts at hand, there is no violation of s. 8 . The disclosure in this case was lawfully authorized by s. 193(2) ( e ), and the legislation, taken as a whole, is reasonable. Furthermore, there is no evidence that the manner of disclosure was unreasonable. With respect to the first step of the s. 8 framework, the disclosure in this case was authorized by law. A disclosure will be authorized by law where it is carried out in accordance with the procedural and substantive requirements the law provides. Section 193(2) (

e) requires that the recipient must be a person or authority with responsibility in a foreign state for the investigation or prosecution of offences, and the disclosure must be intended to be in the interests of the administration of justice in Canada or elsewhere. The disclosure in this case was provided to U.S. law enforcement authorities for the purpose of foiling a cross-border drug smuggling operation. In making the disclosure, Canadian authorities intended to advance the administration of justice in Canada and the United States. Turning to the second step, s. 193(2) (

e) is a reasonable law. First, it is not unconstitutionally overbroad. It limits the type of information that may be disclosed, the purpose for which it may be disclosed, and the persons to whom it may be disclosed. Second, it is not unconstitutionally vague. While “the administration of justice” as used in s. 193(2) (

e) is a broad concept, it is not one that so lacks in precision as to give insufficient guidance for legal debate. In this context, the phrase “the administration of justice” means that the disclosure must be for a legitimate law enforcement purpose. Third, s. 193(2)(

e) is not unconstitutional for lack of accountability or transparency mechanisms.

Part VI of the Criminal Code contains numerous privacy safeguards. The judicial authorization relating to the initial interception requires privacy interests to be balanced with the interests of law enforcement. The interception of communications is also subject to notice and reporting requirements. Additionally, accountability has been built into the disclosure scheme itself. A disclosure that fails to comply with s. 193(2)(

e) can lead to criminal charges against the disclosing party or result in the exclusion of improperly disclosed evidence at a subsequent proceeding. This provides a powerful incentive for Canadian authorities to comply with s. 193(2)( e ). Finally, although not constitutionally mandated in every case, adherence to international protocols and the use of caveats or information-sharing agreements may be relevant in determining whether a disclosure was intended to advance the administration of justice, and therefore was authorized by s . 193(2) ( e ).

As regards the third step of the s. 8 framework, the use of protocols, caveats, or agreements may also be relevant to assessing whether the disclosure was carried out in a reasonable manner. The disclosure in this case was carried out in a reasonable manner. Nothing suggests that the police acted unreasonably. However, in different factual contexts, there may be significant potential dangers posed by the disclosure of intercepted communications to foreign authorities.

Where a disclosing party knows or should have known that the information could be used in unfair trials, to facilitate discrimination or political intimidation, or to commit torture or other human rights violations, s. 8 requires that the disclosure, if permissible at all, be carried out in a reasonable manner. In the most serious cases, s. 8 will forbid disclosure. In other cases, information-sharing protocols or caveats may sufficiently mitigate the risks.

Per McLachlin C.J.: The only issue on this appeal is whether the disclosure of the intercepted communications violated s. 8 of the Charter , and, if so, whether the evidence should have been excluded under s. 24(2) . It is not necessary to consider the constitutionality of s. 193(2) ( e ), s. 193(2)(

b) or the Privacy Act to answer that question. W has not shown an infringement of his s. 8 rights. The individual whose communications are lawfully intercepted under a valid and reasonably executed warrant cannot complain that use of the information for law enforcement breaches his right to privacy. This principle is not confined to the use of information in Canada. Sharing the information for purposes of law enforcement does not violate s. 8.

Sections 7 and 8 of the Charter protect against unreasonable uses of lawfully intercepted information but in this case, where the information was disclosed to U.S. authorities for law enforcement purposes, these residual concerns about unreasonable use do not arise. W’s rights were not violated. Section 193(2)(

e) does not change this. It is not an authorizing provision. It does not confer a power on Canadian authorities to share information with foreign counterparts. The provision operates by exempting officers from prosecution where they disclosed intercepted communications under their common law powers. Section 193(1) of the Criminal Code makes it an offence to disclose intercepted private communications without consent. Section 193(2) (

e) is an exemption from that offence. It preserves the common law power of law enforcement authorities to share lawfully obtained information for purposes of law enforcement both domestically and abroad. The exception prevents law enforcement officers from being convicted for using information obtained under warrant for purposes of law enforcement. It is therefore unnecessary to opine on the constitutionality of s. 193(2)( e ). Per Abella, Cromwell and Karakatsanis JJ. (dissenting): Section 193(2) (

e) violates s. 8 of the Charter in a manner that is not justified under s. 1 . It permits disclosure of wiretapped information to foreign officials without safeguards or restrictions on how the information may be used and without accountability measures for this broad state power. Nothing restrains foreign law enforcement officials from using this highly personal information in unfair trials or in ways that violate human rights norms, from publicly disseminating the information, or from sharing it with other states. The torture of Maher Arar in Syria provides a chilling example of the dangers of unconditional information sharing.

Section 8 requires that when a law authorizes intrusions on privacy, it must do so in a reasonable manner. A reasonable law must have adequate safeguards to prevent abuse. It must avoid intruding farther than necessary. It must strike an appropriate balance between privacy and other public interests. Section 193(2)(

e) falls short on all three counts. The permitted disclosure to foreign officials without safeguards renders the

Part VI wiretap regime of the Criminal Code unconstitutional. The appropriate remedy is to strike the words “or to a person or authority with responsibility in a foreign state” from s. 193(2)( e ). It is unnecessary to consider the constitutionality of s. 8(2) (

f) of the Privacy Act or arguments with respect to s. 7 of the Charter .

Balancing the state’s interest in a search and the public interest in protecting privacy involves asking what level of privacyprotection we are entitled to expect. International cooperation and information sharing are essential to law enforcement. Canadianinterests are served by appropriate information sharing with other jurisdictions. Timely disclosure will often be critical in theinvestigation of serious transnational crimes. However, when information is shared across jurisdictional lines, safeguards that apply indomestic investigations lose their force. Section 193(2)(

e) does nothing to prevent the use of disclosed information in proceedings whichfail to respect due process and human rights. The requirement of prior judicial authorization does not provide sufficient protection againstinappropriate future use. The failure to require caveats on the use of disclosed information is unreasonable. Caveats or standingagreements would not undermine the objectives of the wiretap scheme. They are commonplace in international law enforcementcooperation and provide some assurance that disclosed information will only be used in accordance with respect for due process andhuman rights.

For a law to provide reasonable authority for a search or seizure, it must include some mechanism to permit oversight ofstate use of the power. Accountability mechanisms deter and identify inappropriate intrusions on privacy. None of the safeguards in PartVI apply to disclosure to foreign officials. Improper or hazardous information sharing is unlikely to come to light without record-keeping, reporting or notice obligations.

It is for Parliament to decide what measures are most appropriate, but, at a minimum, thedisclosing party should be required to create a written record and to make the sharing known to the target or to government. The infringement of s. 8 of the Charter is not justified under s. 1. The objective of international cooperation in lawenforcement is pressing and substantial, and disclosure of wiretap information is rationally connected to that objective. However, s.193(2)(

e) as it is presently drafted interferes with privacy to a greater extent than necessary. The inclusion of accountability mechanismsand limits on subsequent use would cure the constitutional deficiencies without undermining Parliament’s goals. Cases Cited By Moldaver J. Distinguished: R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531; referred to: British Columbia v. Imperial Tobacco CanadaLtd., 2005 SCC 49, [2005] 2 S.C.R. 473; R. v. Duarte, (SCC), [1990] 1 S.C.R. 30; Imperial Oil v. Jacques, 2014 SCC66, [2014] 3 S.C.R. 287; R. v. Caslake, (SCC), [1998] 1 S.C.R. 51; R. v. Collins, (SCC), [1987] 1S.C.R. 265; R. v.

Nova Scotia Pharmaceutical Society, (SCC), [1992] 2 S.C.R. 606; R. v. Samson (1982), (ON SC), 37 O.R. (2d) 237; R. v. Finlay (1985), (ON CA), 52 O.R. (2d) 632. By McLachlin C.J. Referred to: R. v. Colarusso, (SCC), [1994] 1 S.C.R. 20; R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227;R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; Imperial Oil v. Jacques, 2014 SCC 66, [2014] 3 S.C.R. 287. By Karakatsanis J. (dissenting) R. v. Duarte, (SCC), [1990] 1 S.C.R. 30; R. v. Collins, (SCC), [1987] 1 S.C.R. 265; R. v.Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554; R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531; R. v.

Quesnelle, 2014 SCC 46, [2014] 2S.C.R. 390; United States of America v. Cotroni, (SCC), [1989] 1 S.C.R. 1469; R. v. Hape, 2007 SCC 26, [2007] 2S.C.R. 292; R. v. Plant, (SCC), [1993] 3 S.C.R. 281; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; Brown v. TheQueen, 2013 FCA 111, 2013 D.T.C. 5094; R. v. Mills, (SCC), [1999] 3 S.C.R. 668; R. v. McNeil, 2009 SCC 3, [2009] 1S.C.R. 66; R. v. Colarusso, (SCC), [1994] 1 S.C.R. 20; Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002SCC 61, [2002] 3 S.C.R. 209; Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145; R. v. Thompson, (SCC), [1990] 2 S.C.R. 1111; R. v.

Oakes, (SCC), [1986] 1 S.C.R. 103; Schachter v. Canada, (SCC),[1992] 2 S.C.R. 679; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; Corbiere v. Canada (Minister of Indian and Northern Affairs), (SCC), [1999] 2 S.C.R. 203. Statutes and Regulations Cited Act to amend the Criminal Code, the Crown Liability and Proceedings Act and the Radiocommunication Act, S.C. 1993, c. 40. Canadian Charter of Rights and Freedoms, ss. 1, 7, 8, 24. Criminal Code, R.S.C. 1985, c. C-46,

Part VI, ss. 183, 184.1, 184.2, 184.4, 185, 186, 193, 195, 196, 487.01(5). Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56, s. 8(1). Privacy Act, R.S.C. 1985, c. P-21, s. 8. Response to the Supreme Court of Canada Decision in R. v. Tse Act, S.C. 2013, c. 8. Authors Cited Austin, Lisa M. “Information Sharing and the ‘Reasonable’ Ambiguities of

Section 8 of the Charter” (2007), 57 U.T.L.J. 499. Canada. Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar. Report of the Events Relating toMaher Arar: Analysis and Recommendations. Ottawa: Public Works and Government Services, 2006. Franklin, Ben A. “Wiretaps reveal Dr. King feared rebuff on nonviolence”, The New York Times, September 15, 1985. Roach, Kent. “Overseeing Information Sharing”, in Hans Born and Aidan Wills, eds., Overseeing Intelligence Services: A Toolkit.Geneva: Geneva Centre for the Democratic Control of Armed Forces, 2012, 129.

Sanchez, Julian. “Wiretapping’s true danger”, Los Angeles Times , March 16, 2008 . United Kingdom. Intelligence and Security Committee. Rendition . London: The Committee, 2007. APPEAL from a judgment of the British Columbia Court of Appeal (Low, Groberman and MacKenzie JJ.A.), 2012 BCCA 397 , 328 B.C.A.C. 174, 558 W.A.C. 174, 293 C.C.C. (3d) 196, 267 C.R.R. (2d) 279, [2012] B.C.J. No. 2057 (QL), 2012 CarswellBC 3067, affirming a decision of Ross J., 2011 BCSC 165 , 268 C.C.C. (3d) 295, 228 C.R.R. (2d) 239, [2011] B.C.J. No. 212 (QL), 2011 CarswellBC 1468.

Appeal dismissed, Abella, Cromwell and Karakatsanis JJ. dissenting. Gregory P. Delbigio , Q.C. , for the appellant. W. Paul Riley and Jeffrey G. Johnston , for the respondent the Attorney General of Canada on behalf of the United States of America and on behalf of the Minister of Justice. M. Joyce DeWitt-Van Oosten , Q.C. , for the respondent the Attorney General of British Columbia. Joan Barrett , for the intervener the Attorney General of Ontario. Jean-Vincent Lacroix , Dominique A. Jobin and Émilie-Annick Landry-Therriault , for the intervener the Attorney General of Quebec. Peter M.

Rogers , Q.C. , and Jane O’Neill , for the intervener the Canadian Civil Liberties Association. Michael A. Feder and Emily MacKinnon , for the intervener the British Columbia Civil Liberties Association. David Goodis and Stephen McCammon , for the intervener the Information and Privacy Commissioner of Ontario. Mahmud Jamal , Patricia Kosseim and Jennifer Seligy , for the intervener the Privacy Commissioner of Canada. The judgment of LeBel, Rothstein and Moldaver JJ. was delivered by Moldaver J. — I.

Introduction [ 1 ] The ability to share information between law enforcement agencies, including lawfully intercepted wiretap information, facilitates the effective investigation of both domestic and multi-jurisdictional crime. But the effective investigation of crime must proceed in accordance with the rights guaranteed by the Canadian Charter of Rights and Freedoms .

The main issue in this appeal is whether federal legislation which authorizes the sharing of lawfully obtained wiretap information between Canadian and foreign law enforcement agencies is constitutional — specifically, whether the legislation falls short of the constitutional standards mandated by the Charter . II. Background [ 2 ] Andrew Gordon Wakeling was the subject of a Canadian drug investigation. Over the course of the investigation, the RCMP lawfully monitored and recorded communications between Mr. Wakeling and others. These communications revealed a plot to transport drugs across the Canada-U.S. border.

Canadian authorities provided this information to U.S. authorities (the “ Impugned Disclosure ”), who used it to intercept and seize 46,000 ecstasy pills at the International Falls, Minnesota border crossing on April 5, 2006. [ 3 ] The U.S. sought Mr. Wakeling’s extradition from Canada for his involvement in the ecstasy shipment. At the extradition hearing, Mr. Wakeling submitted that the legislation authorizing the Impugned Disclosure was unconstitutional.

Specifically, he argued that the provisions breach ss. 7 and 8 of the Charter , and that the wiretap information provided to U.S. law enforcement authorities should therefore not be admitted as evidence against him. [ 4 ] The extradition judge, Ross J., rejected Mr. Wakeling’s arguments and issued a committal order. That order was upheld by the British Columbia Court of Appeal. Before this Court, Mr. Wakeling requests that the committal order be quashed and that a new extradition hearing be held. [ 5 ] For the reasons that follow, I would dismiss Mr. Wakeling’s appeal. III. Statutory Provisions [ 6 ]

Section 193 of the Criminal Code , R.S.C. 1985, c. C-46, states: 193.

(1) Where a private communication has been intercepted by means of an electro-magnetic, acoustic, mechanical or other device without the consent, express or implied, of the originator thereof or of the person intended by the originator thereof to receive it, every one who, without the express consent of the originator thereof or of the person intended by the originator thereof to receive it, wilfully (

a) uses or discloses the private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof, or

(

b) discloses the existence thereof, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. (2) 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 . . . (

b) in the course of or for the purpose of any criminal investigation if the private communication was lawfully intercepted; . . . (

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 . . . [ 7 ]

Section 8 of the Privacy Act , R.S.C. 1985, c. P-21, states: 8.

(1) Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section.

(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed . . . (

b) for any purpose in accordance with any Act of Parliament or any regulation made thereunder that authorizes its disclosure; . . . (

f) under an agreement or arrangement between the Government of Canada or an institution thereof and the government of a province, the council of the Westbank First Nation, the council of a participating First Nation — as defined in subsection 2(1) of the First Nations Jurisdiction over Education in British Columbia Act — , the government of a foreign state, an international organization of states or an international organization established by the governments of states, or any institution of any such government or organization, for the purpose of administering or enforcing any law or carrying out a lawful investigation; . . . [ 8 ] Finally, ss. 7 and 8 of the Charter state: 7.

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 8. Everyone has the right to be secure against unreasonable search or seizure. IV. Judicial History A. Supreme Court of British Columbia, 2011 BCSC 165 , 268 C.C.C. (3d) 295 (Ross J.)

[ 9 ] At his extradition hearing, Mr. Wakeling restricted his constitutional challenge to s. 193(2) (

e) of the Criminal Code and s. 8(2) (

f) of the Privacy Act . He made a variety of broad and sweeping submissions in support of his contention that the impugned provisions do not pass constitutional muster. [ 10 ] Mr. Wakeling submitted that transparency, accountability and the rule of law are principles of fundamental justice under s. 7 of the Charter and that the provisions in question are unconstitutional because the disclosure they authorize does not comply with these principles (trial judgment, at para. 42). He also argued that both provisions breach s. 7 of the Charter because they are vague and overbroad.

With respect to s. 193(2) ( e ), he submitted that it “provides virtually unlimited discretion to law enforcement” to disclose wiretap communications and he criticized the subjective nature of the test it employs ( ibid. , at para. 99). He further submitted that the phrase “the interests of the administration of justice . . . elsewhere” is “incapable of framing legal debate within Canada” and that it does not have a “constant and settled meaning” ( ibid. ).

In his view, the effect of these uncertainties is that decision-makers are given “unrestricted latitude . . . to disclose intercepted private communications or the substance of the communications, and to be exempt from the application of the offence provisions of

Part VI” ( ibid. ). [ 11 ] With respect to s. 8 of the Charter , Mr. Wakeling submitted that the Impugned Disclosure re-engaged s. 8 such that a second judicial authorization was needed before the disclosure could occur. In this regard, he submitted that his privacy interests at the disclosure stage were the same as those he enjoyed at the interception stage and deserved the same protection (trial judgment, at para. 68). Hence, he argued that a second judicial authorization should be required prior to disclosure, and that the provisions in question are unreasonable because they do not provide for this.

He also submitted that the provisions are unreasonable because they do not contain sufficient accountability mechanisms such as a police record-keeping requirement, a requirement to report to Parliament about the disclosures, or an obligation to provide notice of the disclosure to the person whose communications were intercepted. Finally, he took issue with the fact that Canadian authorities have little control over the subsequent use of the disclosed information (para. 116). [ 12 ] The extradition judge considered and rejected all of Mr. Wakeling’s arguments. In her view, the constitutionality of s. 8(2) (

f) of the Privacy Act did not need to be considered because s. 193(2) (

e) of the Criminal Code “expressly governs disclosure of private communications intercepted under

Part VI of the Criminal Code to foreign law enforcement authorities” and “[t]he more general information sharing rules in the Privacy Act are subject to the specific provisions of [the Criminal Code ]” (para. 21). [ 13 ] Turning to Mr. Wakeling’s constitutional arguments, the extradition judge concluded that the Impugned Disclosure did not re-engage s. 8 of the Charter , as the Impugned Disclosure was “not conduct that interferes with a reasonable expectation of privacy in the circumstances” (para. 75). Thus, the disclosure did not amount to “a search or seizure that engages s. 8 of the Charter ” ( ibid. ).

In the alternative, she reasoned that if the Impugned Disclosure engaged s. 8, s. 193(2)(

e) is a reasonable law. [ 14 ] The extradition judge also rejected Mr. Wakeling’s submission that transparency and accountability are principles of fundamental justice that apply to s. 193(2) ( e ). In her view, “[e]ven if these concepts could be characterized as principles of fundamental justice in some contexts, they could not realistically be applied to the manner in which police investigate criminal activity” (para. 48). [ 15 ] The extradition judge similarly rejected Mr. Wakeling’s submission that s. 193(2) (

e) is vague and overbroad, noting that in making the arguments on vagueness and overbreadth that he does, the applicant demands a level of drafting precision from Parliament that is neither constitutionally mandated, nor realistic. By necessity, the wording of s. 193(2) (

e) had to be kept fairly broad to capture the myriad of ways in which a need to disclose “in the interests of the administration of justice” might arise. The law must retain flexibility since laws must of necessity govern a variety of different circumstances and situations. [para. 108] [ 16 ] Lastly, the extradition judge rejected Mr. Wakeling’s rule of law argument. Relying on this Court’s decision in British Columbia v. Imperial Tobacco Canada Ltd. , 2005 SCC 49 , [2005] 2 S.C.R. 473, she found Mr.

Wakeling’s submissions to be “circular, since the measures are themselves embodied in the law” (para. 53). [ 17 ] Having rejected Mr. Wakeling’s legal arguments, the extradition judge considered the evidence and found that it was sufficient to warrant his committal. B. British Columbia Court of Appeal, 2012 BCCA 397 , 328 B.C.A.C. 174 (Low, Groberman and MacKenzie JJ.A.) [ 18 ] On appeal, Mr. Wakeling reiterated his challenge to the constitutionality of s. 193(2) (

e) of the Criminal Code and s. 8(2) (

f) of the Privacy Act . The B.C. Court of Appeal, per Low J.A., agreed with the extradition judge that s. 193(2) (

e) was the governing provision for the specific disclosure at issue. Hence, the court found it unnecessary to consider the constitutionality of s. 8(2)(

f) of the Privacy Act . [ 19 ] In addressing Mr. Wakeling’s s. 8 claim, Low J.A. concluded that the state conduct did not interfere with any reasonable privacy expectation to which Mr. Wakeling could lay claim. The court thus rejected Mr. Wakeling’s s. 8 argument. As the Impugned Disclosure did not re-engage s. 8 of the Charter , no second judicial authorization was needed. [ 20 ] Low J.A. similarly concluded that Mr.

Wakeling’s fundamental justice submissions pertaining to transparency and accountability were without merit: The impugned provision does not have to be transparent by requiring prior notice and there is no need for a reporting requirement of some sort after the fact. The information gathered by lawful electronic interception becomes law enforcement intelligence. In my opinion, it is no different than information obtained from a police informer or information contained in documents that lawfully come into the hands of the police.

If disclosure is in the interests of the administration of justice, there is no need for prior judicial approval or for notice or for reporting. Such requirements would formalize and hamper the inter-jurisdictional investigation of crime and sometimes the prevention of crime. Control of the use of lawfully-gathered police intelligence by foreign authorities is not practical and would be presumptuous.

What is practical and necessary for both crime detection and crime prevention is the ability of police officers to lawfully inform their counterparts in other jurisdictions about impending criminal activity, as occurred in the present case, or past criminal

activity. [para. 43] [21] Finally, the court rejected Mr. Wakeling’s vagueness and overbreadth arguments, noting that “[t]he administration ofjustice is a concept that is well understood and needs no clarification or narrowing” (para. 44). In the result, the court dismissed theappeal. C. Issues [22] On appeal to this Court, Mr. Wakeling renews his constitutional attack on s. 193(2)(

e) of the Criminal Code and s.8(2)(

f) of the Privacy Act, relying on the same arguments he made below. He also raises for the first time, with leave of the Court, theconstitutionality of s. 193(2)(

b) of the Code. He maintains that all of these provisions infringe his rights under ss. 7 and 8 of the Charter,and that the infringements are not justified under s. 1. V. Analysis [23] I propose initially to explain why this appeal turns on the constitutionality of s. 193(2)(

e) of the Criminal Code andnot s. 193(2)(

b) of the Code or s. 8(2)(

f) of the Privacy Act. I will then address Mr. Wakeling’s Charter arguments as they relate to s.193(2)(e). A. The Privacy Act Does Not Apply [24] The Privacy Commissioner of Canada, an intervener, submits that contrary to the lower court decisions, the RCMPmust comply with both the Criminal Code and the Privacy Act when disclosing intercepted private communications to a foreign state, as“[n]othing in the Criminal Code relieves the RCMP from their duty to comply with the Privacy Act” (factum, at para. 13). According tothe Privacy Commissioner, s. 193(2)(

e) of the Criminal Code “limits the breadth of the criminal prohibition” set out in s. 193, “[b]ut thisexemption neither authorizes a disclosure under the Privacy Act nor is itself a source of police power” (para. 14). [25] With respect, I do not agree. The federal Privacy Act is a statute of general application. Section 8(2) of the Act setsout the circumstances in which personal information under the control of a government institution may be disclosed. That sectionexplicitly states that it is “[s]ubject to any other Act of Parliament”.

Therefore, prior to considering the disclosure contemplated by s.8(2), it must first be determined whether another Act of Parliament addresses the particular disclosure in issue. In this case, theImpugned Disclosure (involving lawfully intercepted private communications) is specifically addressed by another Act of Parliament —the Criminal Code. [26]

Part VI of the Criminal Code represents a comprehensive scheme dealing with the interception of privatecommunications. The individual right to privacy stands in tension with our collective need for effective law enforcement, and thesafeguards layered into the wiretap provisions show Parliament’s efforts to “reconcile these competing interests” (R. v. Duarte, (SCC), [1990] 1 S.C.R. 30, at p. 45). As noted by the extradition judge,

Part VI . . . creates a specific regime for the protection of privacy interests in relation to intercepted communications by creating specificoffences, setting out procedures for authorized interception of private communications in the investigation of specific crimes, anddelineating the circumstances under which intercepted communications may be disclosed. [para. 22] This level of detail and specificity in

Part VI indicates that Parliament intended this framework to be the exclusive regime governing theinterception and use of private communications for law enforcement purposes.[1] [27] Section 193(2)(

e) deals directly with the issue at hand — namely, the cross-border disclosure of wiretap information.Admittedly, s. 193(2) is not structured as an explicit authorizing provision. Rather, it takes the form of a series of exemptions to thecriminal offence identified in s. 193(1). Nonetheless, I am satisfied that it represents Parliament’s attempt to regulate the disclosure ofintercepted communications and specify the circumstances in which such disclosures may lawfully be made. Succinctly put, s. 193(2)(e)implicitly authorizes the disclosure of wiretap information in accordance with the conditions prescribed therein. [28] For these reasons, s. 193(2)(

e) of the Criminal Code, and not s. 8(2)(

f) of the Privacy Act, is the governing provisionin this case. Accordingly, I need not consider the constitutionality of s. 8(2)(f). [29] In concluding that s. 193(2)(

e) is an authorizing provision, I do not quarrel with the Chief Justice that, in general, thepolice may look to the common law for authority to use the fruits of a lawful search for legitimate law enforcement purposes, includingdisclosures to foreign law enforcement agencies. However, adopting this analysis in the wiretap context poses a problem. Finding that s.193(2)(

e) is not an authorizing provision, but merely an exception to a criminal offence, implies that none of the subparts of s. 193(2) areauthorizing provisions, and that authorization for all of the listed disclosures must come from some other source. This, however, does notaccord with the Court’s recent decision in Imperial Oil v. Jacques, 2014 SCC 66, [2014] 3 S.C.R. 287, in which the majority held thatthe exemptions in s. 193(2) “give a person the right to disclose recordings that otherwise could not be disclosed” (para. 43).[2]Therefore, in my view, s. 193(2)(

e) is properly read as an authorizing provision. B. Section 193(2)(

b) Need Not Be Considered [30] As noted, Mr. Wakeling was granted leave to challenge the constitutionality of s. 193(2)(

b) of the Criminal Codebefore this Court. In contrast to s. 193(2)(e), which addresses the cross-border disclosure of wiretap communications, s. 193(2)(b)authorizes the disclosure of wiretap communications “in the course of or for the purpose of any criminal investigation”. [31] Mr. Wakeling made only cursory mention of s. 193(2)(

b) in argument. As his complaint is specific to the issue ofinternational, cross-border sharing of wiretap information for criminal law purposes, it is properly considered under s. 193(2)(e). For thatreason — and the fact that Mr. Wakeling did not press s. 193(2)(

b) in written or oral argument — I see no need to address itsconstitutionality.

C. Does the Impugned Disclosure Violate

Section 8 of the Charter?

(1) Is

Section 8 Engaged? [32]

Section 8 is typically invoked where police perform a search or seizure and thereby infringe upon an individual’sreasonable expectation of privacy. It is quite evident that the interception of wiretap communications constitutes a search. However, thedisclosure of previously intercepted communications — which is what s. 193(2)(

e) implicitly authorizes — is not, in my view, a “search”within the meaning of s. 8. Therefore, as a preliminary matter, it is important to clarify precisely how s. 8 is engaged in the present case.I now turn to that issue. [33] Mr. Wakeling submits that s. 8 is engaged because the disclosure of his intercepted communications pursuant to s.193(2)(

e) amounted to a second search, such that a second judicial authorization was necessary prior to the Impugned Disclosure. Absentsuch authorization, he argues that the police violated his s. 8 rights. [34] With respect, I disagree. As the intervener the British Columbia Civil Liberties Association (“BCCLA”) observes,the plain meaning of “search” does not include the disclosure of information by the state.

A disclosure is simply the communication to athird party of previously acquired information. [35] In sum, there was only one search that engaged s. 8 of the Charter on the facts of this case — the original lawfulinterception of Mr. Wakeling’s private communications. For this reason, to invoke s. 8, the appellant must rely on some other analyticalapproach. [36] The BCCLA frames the s. 8 analysis in a different way. It submits that to the extent s. 193(2)(

e) permits disclosureof the fruits of a search, it forms “part of the context in which courts must assess the reasonableness of the law authorizing the search”(factum, at para. 3). [37] This submission warrants brief elaboration. According to the BCCLA, s. 193(2)(

e) is an integral part of a searchregime for wiretap interceptions set out in

Part VI of the Criminal Code. Like all laws authorizing searches, that regime — including anyintegral part of that regime — must be reasonable in order to comply with s. 8 of the Charter. Therefore, if s. 193(2)(

e) is held to beunreasonable, this would taint the overall regime for s. 8 purposes and render it unconstitutional. [38] While I see some merit in the analytical approach proposed by the BCCLA, my conclusion that s. 8 protects targetsat both the interception and disclosure stages under

Part VI is more a function of the special dangers associated with wiretaps. Parliamenthas recognized that wiretaps pose heightened privacy concerns beyond those inherent in other searches and seizures. Justice Karakatsanisdescribes (at para. 116) the serious privacy implications of electronic surveillance, citing this Court’s caution that “one can scarcelyimagine a state activity more dangerous to individual privacy” (Duarte, at p. 43).

Given these implications, the protections thatParliament has seen fit to fold into the wiretap regime include s. 193 which provides that, other than for one of the delineated purposes,the disclosure of wiretap information is not only unauthorized, it is criminal. [39] The highly intrusive nature of electronic surveillance and the statutory limits on the disclosure of its fruits suggest aheightened reasonable expectation of privacy in the wiretap context.

Once a lawful interception has taken place and the interceptedcommunications are in the possession of law enforcement, that expectation is diminished but not extinguished. This heightened andcontinuing expectation of privacy in the wiretap context is further indication that s. 8 ought to apply to disclosures under

Part VI. [40] In sum, while I acknowledge the Chief Justice’s concern that s. 193(2)(

e) does not engage s. 8 simply by virtue of itsintegral place in the search regime of

Part VI, that is not the sole reason — or indeed the main one — why I conclude that s. 8 is engagedin this context. As I have emphasized, Parliament has recognized that wiretap interceptions are an exceptional and invasive form ofsearch, and it is therefore perfectly appropriate, in my view, that s. 8 protections should extend to wiretap disclosures by lawenforcement. Furthermore, there is a residual and continuing expectation of privacy in wiretap information that persists even after it hasbeen lawfully collected.

Indeed, the Chief Justice agrees that “residual privacy interests” remain at the time of disclosure and that s. 8protects against unreasonable uses of the information by law enforcement (para. 95). I am therefore satisfied that s. 8 is properlyengaged.

(2) The Analytical Framework Under

Section 8 of the Charter [41] In order for a search to be reasonable under s. 8 of the Charter, “[it] must be authorized by law, the law itself mustbe reasonable, and the search must be carried out in a reasonable manner” (R. v. Caslake, (SCC), [1998] 1 S.C.R. 51, atpara. 10; see also R. v. Collins, (SCC), [1987] 1 S.C.R. 265, at p. 278). I reiterate that a disclosure is not, standing alone,a “search” within the meaning of the Charter. However, for the reasons outlined above, s. 8 is engaged. Therefore, in my view, the s. 8framework applies, mutatis mutandis, to disclosures made by law enforcement pursuant to s. 193(2)(

e) of the Criminal Code. [42] Following the approach outlined above, I will address each step of the s. 8 framework independently: (1) whetherthe Impugned Disclosure was authorized by law; (2) whether the law authorizing the Impugned Disclosure is reasonable; and (3)whether the Impugned Disclosure was carried out in a reasonable manner.

(3) Was the Impugned Disclosure Authorized by Law? [43] For ease of reference, I repeat s. 193(2)(e): (2) Subsection (1) does not apply to a person who discloses a private communication or any part thereof or the substance, meaning orpurport 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 . . . [ 44 ] A disclosure will be authorized by law where it is “carried out in accordance with the procedural and substantive requirements the law provides” ( Caslake , at para. 12 ). Section 193(2) (

e) imposes two essential requirements. First, with respect to cross- border disclosures, the recipient must be “a person or authority with responsibility in a foreign state for the investigation or prosecution of offences”. Second, the disclosure must be “intended to be in the interests of the administration of justice in Canada or elsewhere”. [ 45 ] Under the second requirement, the relevant intention is that of the disclosing party.

For the disclosure to be authorized by law, that party must subjectively believe that the disclosure will advance the interests of the administration of justice in Canada and/or the foreign state. The belief must be honestly and genuinely held. The credibility of the disclosing party’s expressed intent can be tested against objective facts. [ 46 ] The disclosure in this case was authorized by law. No one contends otherwise. The intercepted communications were provided to U.S. authorities for the purpose of foiling a cross-border drug smuggling operation.

When Canadian authorities shared information about the operation with their American counterparts, they intended to advance the administration of justice in Canada and the United States. The requirements under s. 193(2) (

e) were therefore satisfied.

(4) Is Section 193(2)(

e) a Reasonable Law? [ 47 ] The parties’ submissions focus on the second step of the s. 8 framework, that is the reasonableness of s. 193(2)( e ). They argue, and Justice Karakatsanis agrees, that this provision is constitutionally deficient. I do not share that view. As I will explain, s. 193(2) (

e) is a reasonable law. (

a) Overview of the Parties’ Charter Challenges [ 48 ] Mr. Wakeling and the BCCLA raise a host of Charter arguments challenging the constitutionality of s. 193(2)( e ). For the sake of clarity, these arguments can be broken down into three distinct (though somewhat overlapping) categories: (1) s. 193(2) (

e) is unconstitutionally overbroad; (2) s. 193(2) (

e) is unconstitutionally vague; and (3) s. 193(2) (

e) is unconstitutional because it lacks accountability mechanisms. Viewed individually and collectively, these arguments challenge the reasonableness of the law authorizing the Impugned Disclosure. As such, they are properly considered under the second step of the s. 8 framework. (

i) Overbreadth [ 49 ] The BCCLA’s main line of attack on s. 193(2) (

e) is that it creates an almost “limitless” scope for disclosure of private intercepted communications. In failing to place reasonable, or indeed any limits on disclosure, the provision effectively grants police untrammeled discretion and is ripe for abuse by both domestic and foreign authorities. This argument strikes me as very similar to Mr. Wakeling’s submission that s. 193(2) (

e) is unconstitutionally overbroad and thus contravenes the principles of fundamental justice in violation of s. 7 of the Charter . I am of the view that both of these arguments can be dealt with together under the reasonableness framework of s. 8. To put it simply, a law that suffers from overbreadth will necessarily be unreasonable. (ii) Vagueness [ 50 ] Mr. Wakeling argues that the language of s. 193(2) (

e) is so vague as to be unworkable. He makes this argument under s. 7 of the Charter , asserting that the phrase “in the interests of the administration of justice” does not have a constant and settled meaning. Like the argument on overbreadth, I believe that this argument can be disposed of under s. 8. A provision that is unconstitutionally vague will necessarily be unreasonable. (iii) Accountability Mechanisms [ 51 ] Mr. Wakeling and the BCCLA submit that s. 193(2) (

e) is unconstitutional since it is devoid of mechanisms to hold authorities accountable for their disclosures of intercepted communications. In particular, they are concerned that the provision lacks sufficient safeguards, including judicial pre-authorization, notice and record-keeping requirements, Parliamentary reporting, as well as international protocols and caveats limiting the use of disclosed information. [ 52 ] Mr. Wakeling’s accountability argument goes somewhat further than that of the BCCLA.

He claims that accountability — and the related value of transparency — are principles of fundamental justice under s. 7. I find it unnecessary to finally decide that issue. The accountability concerns identified by Mr. Wakeling and the BCCLA are best dealt with under s. 8. As this Court’s decision in R. v. Tse , 2012 SCC 16 , [2012] 1 S.C.R. 531, notes, accountability forms part of the reasonableness analysis under s. 8. [ 53 ] Having outlined the three categories of objections to s. 193(2) ( e ), I will now address each of them in greater depth. (

b) Is the Scope of Disclosure Authorized by Section 193(2)(

e) Unconstitutionally Overbroad? [ 54 ] Both Mr. Wakeling and the BCCLA take issue with the extent of disclosure that s. 193(2)(

e) authorizes for substantially similar reasons. Both submit that s. 193(2)(

e) permits “near-limitless disclosure of private communications intercepted by wiretap” (BCCLA factum, at para. 3; see also A.F., at paras. 129-30). [ 55 ] With respect, I believe that Mr. Wakeling and the BCCLA overstate the nature and extent of the disclosure

contemplated by s. 193(2)(e). A law may be broad without suffering from overbreadth. While the provision authorizes a wide scope ofdisclosure, it does not permit “near-limitless” disclosure of lawfully intercepted communications.

On the contrary, it limits the type ofinformation that may be disclosed, the purpose for which it may be disclosed, and the persons to whom it may be disclosed. [56] Second, the BCCLA notes that the provision allows disclosure where it is intended to be “in the interests of theadministration of justice in Canada or elsewhere” and submits that the use of the word “or” means that disclosure could be in the soleinterests of the foreign state, and not Canada’s.

According to the BCCLA, “it is never reasonable to disclose an intercepted privatecommunication to a foreign state when to do so is only in the foreign state’s interests and not Canada’s” (factum, at para. 33). [57] With respect, I reject this line of thinking. Multi-jurisdictional cooperation between law enforcement authoritiesfurthers the administration of justice in all of the jurisdictions involved. It must not be forgotten that Canada is often on the receiving endof valuable information from foreign law enforcement authorities. The language of s. 193(2)(

e) appropriately captures the reciprocityinherent in this practice. [58] Third, the BCCLA submits that “on its face, s. 193(2)(

e) permits disclosure even to support torture, or to prosecutean offence in a foreign state that violates Canadian constitutional norms or international law, provided only that someone intends thatdisclosure to be in the interests of the administration of justice somewhere” (factum, at para. 10 (emphasis in original)).

It also contendsthat s. 193(2)(e) “opens the door to disclosures to foreign states that are motivated by Canadian authorities’ political, financial, personal,or other interests, as long as the foreign state’s intention relates to the interests of its administration of justice” (ibid., at para. 13(emphasis in original)). [59] Once again, I disagree. Under s. 193(2)(e), it is the disclosing party’s intention that matters.

The provision requiresthat the disclosing party must subjectively believe that disclosure will further the interests of justice in Canada and/or the foreign state.The belief must be an honest one, genuinely held. If the disclosing party’s subjective belief is challenged, the reviewing judge may lookat objective indicators in deciding whether the disclosing party is to be believed.

Measuring the stated belief against objective facts is anaccepted way of separating beliefs that are honestly and genuinely held from those that are not. [60] A disclosing party who knows little or nothing about the justice system in the foreign state or who does not knowhow or for what purpose the foreign state intends to use the information will have a hard time satisfying a court that he or she genuinelybelieved that disclosure would further the interests of the administration of justice.

The same holds true for a disclosing party who knowsor has reason to believe that the information will be used to commit torture or other human rights violations, or for someone who has sentthe information for personal or partisan reasons. That a disclosing party may have his or her credibility tested against objective indicatorsincentivizes that person to proceed cautiously when disclosing information to a foreign state. Given these limitations inherent in s. 193(2)(e), I am not persuaded that the provision grants police a “limitless” power to disclose. (

c) Is Section 193(2)(

e) Unconstitutionally Vague? [61] I will now address Mr. Wakeling’s objection that s. 193(2)(

e) is unconstitutionally vague. He contends that thephrase “where disclosure . . . is intended to be in the interests of the administration of justice in Canada or elsewhere” is “unworkable”because “the decision maker would be required to have a full appreciation and understanding of the laws of the country which willreceive the disclosure” (A.F., at para. 126). He also argues that “the administration of justice” does not have a constant and settledmeaning (para. 129). [62] Like the extradition judge and the Court of Appeal, I would not give effect to these submissions.

This Court in R. v.Nova Scotia Pharmaceutical Society, (SCC), [1992] 2 S.C.R. 606, stated that “a law will be found unconstitutionallyvague if it so lacks in precision as not to give sufficient guidance for legal debate” (p. 643). Section 193(2)(

e) does not offend in thisregard. It sets out who must intend that the disclosure be in the interests of the administration of justice (the person disclosing theinformation) and to whom the information may be disclosed (to a peace officer or prosecutor in Canada or to a person or authority withresponsibility in a foreign state for the investigation or prosecution of offences). Moreover, while “the administration of justice” is abroad concept, it is not one that so lacks in precision as to give insufficient guidance for legal debate. As Borins Co. Ct.

J. in R. v.Samson (1982), (ON SC), 37 O.R. (2d) 237, explained: . . . “administration of justice”, with particular reference to the criminal law, is a compendious term that stands for all the complexes ofactivity that operate to bring the substantive law of crime to bear, or to keep it from coming to bear, on persons who are suspected ofhaving committed crimes. It refers to the rules of law that govern the detection, investigation, apprehension, interviewing and trial ofpersons suspected of crime and those persons whose responsibility it is to work within these rules.

The administration of justice is notconfined to the courts; it encompasses officers of the law and others whose duties are necessary to ensure that the courts functioneffectively. The concern of the administration of justice is the fair, just and impartial upholding of rights, and punishment of wrongs,according to the rule of law. [pp. 246-47] In the context of s. 193(2)(e), the phrase “the administration of justice” means that disclosure must be for a legitimate law enforcementpurpose, such as the prevention of cross-border drug trafficking. It is not unconstitutionally vague. (

d) Is Section 193(2)(

e) Unconstitutional for Lack of Accountability Mechanisms? [63] Mr. Wakeling and the BCCLA also make a variety of submissions pertaining to accountability and the related valueof transparency. They take issue with the fact that s. 193(2)(

e) contains no record-keeping requirement, nor any requirement that would“attempt to constrain the foreign state’s use and dissemination of the communications” (BCCLA factum, at para. 2). The essence of thesearguments is that s. 193(2)(

e) inadequately protects the privacy interests at stake and that, absent procedural requirements such as noticeto the target of the disclosure, protocols or international agreements, police record keeping, and Parliamentary reporting, s. 193(2)(

e) isunconstitutional. [64] In making these arguments, Mr. Wakeling and the BCCLA rely on Tse, where the constitutionality of s. 184.4 of theCriminal Code was in issue. That provision permitted peace officers to intercept certain private communications without judicial

authorization if an officer believed, on reasonable grounds, that the interception was immediately necessary to prevent an unlawful actthat would cause serious harm. In striking it down, this Court held that “s. 184.4 falls down on the matter of accountability because thelegislative scheme does not provide any mechanism to permit oversight of the police use of this power” (para. 11 (emphasis added)). [65] In my opinion, Tse is distinguishable from the present case. First, the statutory scheme at issue in Tse contained noaccountability measures.

As I will explain, that is not the case with s. 193(2)(e). [66] Second, the impugned provision in Tse involved warrantless searches and seizures. Accountability measures,including after-the-fact notice and reporting requirements, are of particular importance in that context. The emergency wiretap provision,by its very nature, allows the police to conduct a warrantless search in exigent circumstances. No balancing of interests before a judgeoccurs. In contrast, Mr. Wakeling’s private communications were intercepted pursuant to a judicial authorization. Issuing theauthorization required the judge to balance Mr.

Wakeling’s privacy interests with the interests of law enforcement. A variety ofprocedural safeguards were adhered to. Unlike an emergency wiretap situation, Mr. Wakeling’s privacy interests were affordedsignificant protection at the interception stage. [67] Section 193(2)(

e) must be considered in context. In my view, it is inappropriate “to seize upon individual sections of[the wiretap scheme] and to see if those sections, viewed in isolation, contravene the provisions of the Charter” (R. v. Finlay (1985), (ON CA), 52 O.R. (2d) 632 (C.A.), at p. 653). Rather, the proper approach is to consider the “provisions and thesafeguards contained therein in their entirety” (ibid.). Section 193(2)(

e) is part of a unique statutory scheme that contains numerousprivacy safeguards, including notice and reporting requirements. Pursuant to s. 196(1) of the Criminal Code, an individual who has beenwiretapped must be provided with written notification within three months of the time the authorization was given or renewed, subject tojudicially authorized extensions.

These extensions may be authorized, for instance, where providing notice to the suspect would derail anongoing police investigation. [68] While Parliament could perhaps, as a matter of policy, require a second notice relating specifically to a s. 193(2)(e)disclosure, there are inherent difficulties with such a requirement. In order to decide whether to apply for an extension of time inproviding notice of disclosure, Canadian authorities would have to keep abreast of all foreign investigations involving the disclosedinformation.

Without such knowledge, it would be impossible for them to know whether providing notice of the disclosure to the suspectwould derail or otherwise compromise a foreign investigation. [69] To require Canadian authorities to stay on top of all foreign investigations that involve the disclosed information issurely unreasonable. It would be highly burdensome, if not entirely impractical. In my view, the absence of a requirement to provide asecond notice does not render the wiretap regime unconstitutional. [70] As noted, the existing notice requirements contained in

Part VI of the Criminal Code ensure that all individuals whohave been wiretapped are provided with notice of this fact. Once notified, individuals may wish to know whether their interceptedcommunications have been disclosed to a foreign authority. An individual may make a request pursuant to the applicable access toinformation statute in an effort to obtain this information. Justice Karakatsanis correctly notes that such efforts may not always besuccessful, depending on the details of the applicable access to information regime and the individual’s circumstances.

I express no viewon whether a guaranteed right of access to this information would be advisable — only that it is not constitutionally required. [71] As for Parliamentary reporting, the Minister of Public Safety and Emergency Preparedness must prepare an annualreport to Parliament on the use of electronic surveillance pursuant to s. 195 of the Criminal Code. Once again, Parliament could requirethat disclosures made under s. 193(2)(

e) be included in an annual report. But that is a policy decision, and it is important that this Courtseparate policy matters from constitutional imperatives — especially in this context where international relations are involved. As thisCourt stated in Tse, a reporting requirement to Parliament is not a constitutional imperative (para. 89). [72] Contrary to the submissions of Mr. Wakeling and the BCCLA, s. 193(2)(

e) is not devoid of accountability measures.Rather, accountability has been built into the scheme for the disclosure of wiretap communications. Section 193(1) provides a powerfulincentive for Canadian authorities to comply with the dictates of s. 193(2)(e). The failure to do so can lead to criminal charges against thedisclosing party or result in the exclusion of the improperly disclosed evidence at a subsequent proceeding in Canada. The possibility ofcriminal sanction or the loss of important evidence creates an incentive to maintain records about what information was disclosed, towhom, and for what purpose.

Indeed, according to the evidence of the Deputy Commissioner of Canada West, Gary David Bass, whotestified with respect to certain RCMP practices and procedures, the RCMP have a number of internal record-keeping policies that applyto the cross-border sharing of information. [73] While police record keeping is not, in my view, constitutionally required for disclosures made under s. 193(2)(e), Ishould not be taken as discouraging the practice.

Likewise, these reasons are not intended to discourage Parliament from institutingreporting requirements or establishing international agreements between Canada and foreign states to address cross-border disclosure ofwiretap communications. The record at hand indicates that many agreements are in place between law enforcement agencies.

The recordalso shows that information is often disclosed with caveats as to its subsequent use. [74] Although not constitutionally mandated, adherence to international protocols and the use of caveats or information-sharing agreements may be highly relevant in determining whether a given disclosure was authorized by law under s. 193(2)(e). Theseobjective indicators may assist a court in assessing whether disclosure was genuinely intended to advance the interests of theadministration of justice.

Moreover, as I discuss below in reference to the third step of the s. 8 framework, they will also impact onwhether the manner of disclosure is found to be reasonable. [75] In considering the possible accountability and transparency mechanisms that Parliament could enact, certain realitiescannot be ignored. Even where the information is disclosed to a foreign state with a legal system much like our own, once theinformation is in the hands of the foreign state, its use will, for the most part, be beyond our purview. Such is a defining feature of statesovereignty.

Caveats on disclosure and information-sharing protocols may be desirable, and they may be relevant to evaluating whethera disclosure is intended to be in the interest of the administration of justice (as required at the first step of the s. 8 analysis) or is carried

out reasonably (as required at the third step). However, they are not constitutionally required in every case, nor would they be a panacea if they were — certainly not standard-form agreements or caveats accompanying every disclosure, as Justice Karakatsanis’s proposal would likely generate. There is always a risk that a foreign law enforcement agency may misuse the information disclosed to it under s. 193(2)( e ).

This risk can never be entirely eliminated, regardless of the nature and extent of the procedural safeguards in place in Canada, and it must not be allowed to undermine the vital interests served by the detection and prosecution of multi-jurisdictional crime. In this regard, I re-emphasize that Canada is frequently on the receiving end of such disclosures — and Canadians are safer for it. [ 76 ] I do not gainsay the possibility that a foreign law enforcement agency could misuse the information provided to it by Canadian authorities.

In such cases, there are certain avenues Canada may pursue where the subsequent use of information disclosed to a foreign state offends our own notions of justice. For example, where the disclosed information is being used to seek the extradition of an individual who faces a realistic prospect of torture or other human rights violations in a foreign country, Canada can refuse the extradition request to avoid a manifest violation of the Charter .

Likewise, if the information in question is found to have been unlawfully obtained, its use in an extradition proceeding — or in any other legal venue — could be challenged. In other contexts, Canada could exert pressure through diplomatic channels.

There are various ways that Canada pursues its objectives on the international stage — founded on the principles of comity and state sovereignty — which may have application in a particular case. [ 77 ] It bears emphasizing that this Court’s task is not to determine whether there may be better or additional accountability measures or stricter language that could be put in place with respect to the cross-border disclosure of wiretap communications. Any attempt to micromanage Parliament in this context must be approached with great care. The task at hand is to determine whether s. 193(2)(

e) passes constitutional muster. As discussed, there are a number of accountability measures contained within

Part VI and within s. 193(2)(

e) itself, and the scope of the disclosure contemplated by s. 193(2)(

e) is, in my view, entirely reasonable. For these reasons, I conclude that the impugned legislation does not fall short of the constitutional standards mandated by s. 8 of the Charter .

(5) Was the Impugned Disclosure Carried Out in a Reasonable Manner? [ 78 ] Having determined that s. 193(2)(

e) is a reasonable law and that it was complied with in this case, the remaining inquiry is whether the manner of the Impugned Disclosure was unreasonable, and therefore violates s. 8 of the Charter . Nothing in the record suggests that the police acted unreasonably in disclosing Mr. Wakeling’s intercepted communications to U.S. authorities. Neither the Chief Justice nor Justice Karakatsanis suggest otherwise.

Common sense would suggest that similarly unremarkable and entirely reasonable instances of law enforcement cooperation to combat cross-border criminal activity occur on a daily basis between Canadian and U.S. authorities. Saddling police with the obligation of imposing boilerplate caveats on even the most routine disclosures poses an unnecessary burden. It would do little to safeguard the interests protected by s. 8 while impeding legitimate law enforcement operations. [ 79 ] Nothing further is needed to dispose of the instant case.

However, in different factual contexts, there may be significant potential dangers posed by the disclosure of intercepted communications to foreign authorities.

Given these dangers, a broader discussion of the third step of the s. 8 framework is warranted. [ 80 ] Where a disclosing party knows or should have known that the information could be used in unfair trials, to facilitate discrimination or political intimidation, or to commit torture or other human rights violations — concerns rightly expressed by Justice Karakatsanis — s. 8 requires that the disclosure, if permissible at all, be carried out in a reasonable manner. In the most serious examples, where there are no steps that could be taken to mitigate the danger, s. 8 forbids disclosure entirely.

I should emphasize that this inquiry as to the manner of disclosure is distinct from whether disclosure would be authorized by law pursuant to s. 193(2)( e ) — although, as a practical matter, the two inquiries may overlap.

For example, where the risks are so great that there is no manner of disclosure that would be objectively reasonable, a disclosing party would find it difficult to prove that he or she believed that the disclosure was “in the interests of the administration of justice” under any plausible meaning of that term. [ 81 ] In other cases, a disclosure could be reasonably carried out where the use of information-sharing protocols or the imposition of caveats would sufficiently mitigate the risks. An example may be useful to illustrate this point.

Suppose that Canadian authorities know or ought to know that a foreign government, to which they are contemplating a disclosure, may pass on the information to a third country that could exploit it to harm a Canadian citizen. In that context, the failure to include a caveat limiting subsequent use of the disclosed information, even where the disclosing party intended to further the administration of justice, might render the disclosure unreasonable under s. 8. In such cases, therefore, the existence of appropriate safeguards will play a crucial role in determining the constitutionality of a challenged disclosure.

It is by mandating appropriate safeguards on a case-by-case basis, rather than inflexibly requiring them in all situations, that a proper balance is struck between protecting against unreasonable disclosures of private communications and facilitating the effective investigation of domestic and multi-jurisdictional crime. VI. Conclusion [ 82 ] Inter-agency cooperation is critical to the prevention, detection, and punishment of cross-border crime. Recognizing this, Parliament has authorized the cross-border sharing of wiretap communications under s. 193(2) (

e) of the Criminal Code . The disclosure in this case was lawfully authorized by that provision, and the legislation, taken as a whole, does not violate s. 8 of the Charter . Furthermore, there is no evidence that the manner of disclosure was unreasonable. Accordingly, I would dismiss the appeal. The following are the reasons delivered by [ 83 ] The Chief Justice — I have read the reasons of my colleagues Moldaver J. and Karakatsanis J., who come to different conclusions about the constitutionality of s. 193(2) (

e) of the Criminal Code , R.S.C. 1985, c. C-46, and the measures that should be in place to govern sharing information obtained under warrant with law enforcement agencies in other countries. [ 84 ] I approach the matter differently. In my view, the question on this appeal is whether Mr. Wakeling’s rights under s. 8 of the Canadian Charter of Rights and Freedoms were violated. The constitutionality of s. 193(2)(

e) becomes an issue only if Mr. Wakeling can show that s. 193(2) (

e) infringed his s. 8 rights. In my view, he has not shown this. Accordingly, I would dismiss the appeal.

I. Background [85] Moldaver J. has set out the facts and judicial history of the case. Briefly put, Mr. Wakeling was the subject of aCanadian drug investigation. In the course of the investigation, the RCMP obtained a warrant to monitor communications between Mr.Wakeling and others. The communications revealed a plot to transport drugs across the Canada-U.S. border. The RCMP sharedinformation obtained from the communications with U.S. authorities, who used it to intercept and seize 46,000 ecstasy pills at theInternational Falls, Minnesota border crossing. [86] The U.S. sought Mr.

Wakeling’s extradition from Canada to face charges arising from the seizure of the ecstasypills. At the hearing, Mr. Wakeling argued that the RCMP’s disclosure of the information obtained from the interceptedcommunications violated his rights under s. 8 of the Charter and that the evidence should not be admitted against him. [87] The extradition judge held that there was no violation of Mr. Wakeling’s s. 8 rights, admitted the evidence, andissued a committal order for extradition. The British Columbia Court of Appeal dismissed Mr. Wakeling’s appeal. II.

The Issue [88] The main — and in my view the only — issue on this appeal is whether the RCMP’s disclosure of the interceptedcommunications to U.S. authorities violated Mr. Wakeling’s s. 8 rights and, if so, whether the evidence should have been excluded unders. 24(2) of the Charter. [89] In my view, it is not necessary to consider the constitutionality of s. 193(2)(

e) of the Criminal Code to answer thatquestion. I agree with my colleagues that it is unnecessary to consider the Privacy Act, R.S.C. 1985, c. P-21, or s. 193(2)(

b) of theCriminal Code. III. Analysis [90]

Section 8 of the Charter protects individuals against unreasonable search and seizure. It provides: Everyone has the right to be secure against unreasonable search or seizure. [91]

Section 8 protects the individual’s privacy interest against unreasonable state intrusion. Here, Mr. Wakeling has areasonable expectation of privacy in his communications with others.

In order to obtain private information by interceptingcommunications, the state must obtain a judicial warrant, which requires the state to demonstrate that there are reasonable grounds tobelieve the interception will show evidence of a crime. (Circumstances where the state can intercept without a warrant are not relevanthere, e.g., s. 184.4 of the Criminal Code.) Where such grounds exist, the individual’s privacy interest in the intercepted communicationgives way to the state’s interest in law enforcement. [92] The warrant allows the police to obtain the information and to use it for purposes of law enforcement.

Theindividual whose communications are lawfully intercepted under a valid warrant cannot complain that this unreasonably breaches hisprivacy. To put it metaphorically, a valid warrant sanitizes the state intrusion on privacy, as long as the execution of the warrant isreasonable and the information is used for purposes of law enforcement. [93] It has never been suggested that this principle is confined to the use of information in Canada.

The reality is thatcrime does not stop at national borders, and police routinely share information that they have lawfully obtained under warrant with theircounterparts in other countries. Provided information is shared for purposes of law enforcement, the individual cannot complain that thesharing violates his s. 8 right to privacy. [94] This Court has found that s. 8 is violated in cases where the information was seized in a context outside lawenforcement and then passed along for the purpose of law enforcement: R. v. Colarusso, (SCC), [1994] 1 S.C.R. 20; R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227; and R. v.

Cole, 2012 SCC 53, [2012] 3 S.C.R. 34. In those cases, the “sanitizing” effect ofthe warrant (or similar authorization process) was absent; the individual’s privacy interest had not been balanced against the state’sinterest in law enforcement through judicial pre-authorization. Where, as here, that process has taken place, disclosure for lawenforcement purposes does not violate s. 8. [95] Once information is obtained under warrant, s. 8 protects against unreasonable uses of that information.

Forexample, information obtained under warrant cannot be used for rendition to a foreign country (the Maher Arar case discussed byKarakatsanis J.) or public titillation.

Section 7 of the Charter may also be engaged where disclosure gives rise to a concern that therecipient country will use the information to kill, torture or mistreat the target. These concerns do not arise on the facts of this case. Where these residual privacy interests are infringed, remedies may include prosecution of the disclosing officer under s. 193(1) of theCriminal Code and remedies under s. 24(1) of the Charter. [96] It follows that sharing information obtained under warrant for law enforcement purposes with foreign law officersdoes not violate s. 8, absent the residual concerns just discussed.

Here, the information was disclosed to the U.S. authorities for lawenforcement purposes, and none of the residual concerns arise. It follows that Mr. Wakeling’s rights were not violated, and his appealmust fail. [97] The question is whether s. 193(2)(

e) of the Criminal Code changes this. I do not think it does. As I state in ImperialOil v. Jacques, 2014 SCC 66, [2014] 3 S.C.R. 287, at para. 89, I am of the view that s. 193(2) is not an authorizing provision. Section193(2)(

e) does not confer a power on Canadian authorities to share information obtained under warrant with foreign counterparts. Rather,it operates by exempting officers from prosecution where they disclose intercepted private communications under their common lawpowers. Section 193(1), the offence provision, is intended to guard against the disclosure of intercepted private communications bymaking it an offence to do so without the consent of the individual concerned. Section 193(2) then lists a number of exemptions fromwhat otherwise would be an offence by virtue of s. 193(1). The exception in s. 193(2)(

e) demonstrates that the common law power to use

information obtained under warrant for law enforcement purposes is one of the categories of disclosure protected from liability as anoffence under s. 193(1). I agree with my colleague Moldaver J. when he says that “the administration of justice” in s. 193(2)(

e) refersonly to use for legitimate law enforcement purposes. The provision therefore preserves the common law power of law enforcementauthorities to share lawfully obtained information for purposes of law enforcement both domestically and abroad. In a nutshell, theexception prevents law enforcement officers from being convicted for doing their job — using information obtained under warrant forpurposes of law enforcement. [98] It is therefore unnecessary to opine on the constitutionality of s. 193(2)(

e) of the Criminal Code. To do so invitesspeculation, as the eloquent reasons of my colleagues demonstrate: one says the current legislative scheme provision is unconstitutional,the other says it is eminently reasonable. We should not send Parliament back to the legislative drawing board on the basis ofhypothetical speculation, where it is not established that the law infringes anyone’s s. 8 rights. [99] For the same reasons, I find it unnecessary to consider the constitutionality of the Privacy Act.

Assuming withoutdeciding that the Privacy Act applies, it permits the disclosure of personal information for the purposes of law enforcement. It isspecifically permitted under s. 8(2)(f)[3] and more generally as a use consistent with the purpose for

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