Disclosure of Lawfully Intercepted Communication to Foreign Authorities Constitutional

On 14 November 2014, in Wakeling v United States of America, 2014 SCC 72, the Supreme Court of Canada considered whether sharing lawfully intercepted wiretap information in Canada with foreign authorities violates sections 7 and 8 of the Charter of Rights and Freedoms.

The case involves a request by the United States to extradite the Appellant, Andrew Wakeling, a Canadian resident and the subject of a Canadian drug investigation. Over the course of the investigation, Canadian authorities recorded communication between Mr. Wakeling and others, which revealed a plot to carry drugs across the Canada-US border. This information was disclosed to the United States. As a result, the United States sought Mr. Wakeling’s extradition from Canada.

Mr. Wakeling argued that the legislation authorizing the disclosure was unconstitutional and breached sections 7 and 8 of the Charter, rendering the wiretap information provided to the United States inadmissible as evidence against him.

Looking at section 8 of the Charter, which protects wiretap targets at the interception and disclosure stages, as well as section 193(2)(e) of the Criminal Code, which implicitly authorizes cross-border disclosure of lawfully intercepted wiretap information, the Supreme Court concluded that sharing information that was lawfully intercepted for the purpose of law enforcement does not violate section 8.

However, not all judges agreed. According to Justice Karakatsanis, writing for the dissent, section 193(2)(e) does nothing to prevent the use of disclosed information in proceedings which fail to respect due process and human rights. The torture of Maher Arar in Syria provides a chilling example of the dangers of unconditional information sharing!