Michaud v. Quebec (Attorney General) [1996] 3 S.C.R. 3: -- Access to recordings made during wiretap

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE SUPERIOR COURT FOR QUEBEC

Criminal law -- Interception of private communications -- Access to sealed packet -- Access to recordings made during wiretap -- Whether person who was under electronic surveillance but not subsequently charged may have access to sealed packet and to recordings made during wiretap -- Criminal Code, R.S.C., 1985, c. C-46, s. 187(1)(a)(ii) -- Canadian Charter of Rights and Freedoms, s. 8.

The appellant, a lawyer, was the target of an authorized wiretap as part of a police investigation into the leak of confidential government documents. During the investigation, his house was searched, pursuant to a search warrant, and he was arrested and detained without the benefit of counsel. A superior court judge found that both the search and the detention were unreasonable and unlawful. No criminal charges were laid against the appellant. Informed of the wiretap authorization in accordance with s. 196 of the Criminal Code, the appellant filed a motion requesting a judicial order to open the sealed packet as well as copies of the police tapes of his private communications. In his motion, the appellant stated that he intended to file a civil action to obtain compensation for the damage he claimed to have suffered as a result of the police action against him. He also stated that he had reasonable grounds to believe that the application for authorization did not refer to his status as a lawyer, contrary to s. 185(1)(e) of the Code. Finally, he claimed that the electronic surveillance conducted against him did not comply with the requirements of Part VI of the Code. The judge examined the documents in the sealed packet in camera and assured the appellant that his status as a lawyer was mentioned therein. He also said that the appellant's motion was premature since he was neither an accused nor a plaintiff in a civil action. The judge denied the motion, holding that where the request for access under s. 187(1)(a)(ii) of the Code originates from a non-accused target, the Code requires that such authorizations remain confidential. He left open the possibility that such a request might be entertained by the judge who presided over the civil suit. This Court granted leave to appeal from that judgment pursuant to s. 40(1) of the Supreme Court Act.

Held: The appeal should be allowed.

Per Lamer C.J. and Gonthier, McLachlin and Iacobucci JJ.: A judge is entitled to examine the contents of the packet in private for the restricted purpose of adjudicating a s. 187(1)(a)(ii) application. The confidentiality interests underlying the provision are simply not triggered when a competent judicial authority examines the contents of the packet in camera. As illustrated in this instance, such an examination would be helpful in promptly disposing of a motion for access where the alleged deficiencies of the application are simply not borne out on the face of the application. If an order for access is not issued, the relevant materials would be returned to the packet, with no disclosure of the contents to parties.
Since the advent of the Charter, the target of a wiretap authorization who subsequently faces criminal prosecution on the basis of intercepted communications is automatically entitled to gain access to the materials within the packet, subject only to the Crown's right to apply to have the materials edited. The discretion vested under s. 187(1)(a)(ii) of the Criminal Code must be exercised systematically in favour of access to give effect to an accused's right to full answer and defence under s. 7 of the Charter and an accused's right to challenge the admission of potentially unlawfully intercepted evidence under ss. 8 and 24(2) of the Charter. However, the pre-Charter interpretation of s. 187(1)(a)(ii) continues to operate in relation to non-accused. Where a former surveillance target applies for access in the absence of any threat of criminal prosecution, different considerations apply. Parliament clearly intended that the state's pressing interest in confidentiality of the packet should represent the dominant consideration in the exercise of this discretion. In light of the crucial fact that a competent judge will have already examined and approved a surveillance application prior to the wiretap, Canadian courts have properly concluded that the statutory discretion to open the packet should normally only be exercised upon a preliminary showing which suggests that the initial authorization was obtained in an unlawful manner. An interested non-accused party who seeks access to the packet must thus demonstrate more than a mere suspicion of police wrongdoing; he will normally be compelled to produce some evidence which suggests that the authorization was procured through fraud or wilful non-disclosure by the police.
The settled, purposive interpretation of s. 187(1)(a)(ii) with respect to non-accused targets should not be altered in light of s. 8 of the Charter. While an individual has an important and vital right to the disclosure of governmental information in order to effectuate his substantive constitutional rights under ss. 7 and 8 of the Charter, this right does not compel absolute access to confidential information held by the state where the individual does not face the jeopardy of the criminal process. The existing judicial interpretation of s. 187(1)(a)(ii) strikes an appropriate balance between the individual's interest in contesting the validity of an authorized interception of communications and the public's interest in the confidentiality of law enforcement techniques and police informers. Under Part VI, where an individual receives notice of an interception under s. 196(1), a judge will have already examined the original wiretap application and supporting affidavits and have concluded that they demonstrate reasonable and probable grounds for a search. In light of the existence of prior authorization in addition to the other procedural and substantive protections contained within Part VI of the Code, Canadian courts have adequately balanced the relevant interests in concluding that the statutory discretion to open the packet should normally only be exercised in favour of a non-accused target upon some evidence that the initial authorization was obtained in an unlawful manner. Accordingly, under a purposive and contextual interpretation of the Charter, the prevailing interpretation of the judicial power to open a sealed packet under s. 187(1)(a)(ii), as applied to a request for access by a non-accused target of electronic surveillance, does not offend s. 8.
Here, the judge erred in automatically rejecting the appellant's motion to open the sealed packet. A non-accused target may apply for an order under s. 187(1)(a)(ii) and bring such a motion before the filing of his civil suit. The judge failed to accord the appellant an adequate opportunity to make a preliminary showing which tends to indicate that the initial authorization was obtained in an unlawful manner.
In light of the legislative history of the similar wording of s. 187(1.3) of the Code, adopted in 1993, the scope and content of judicial discretion under that section are identical to the discretion vested by its predecessor, s. 187(1)(a)(ii). Accordingly, the result and reasoning in this case would have been the same had the appellant's motion been governed by s. 187(1.3). Parliament adopted a mandatory regime of disclosure with editing for an accused person, but specifically chose to preserve a discretionary regime of disclosure in addressing applications by non-accused persons.
Outside a criminal proceeding, the Criminal Code does not provide a former surveillance target with any avenue for disclosure of the recording materials. The judicial power under s. 187(1)(a)(ii) to grant disclosure to the packet does not encompass disclosure of the recording materials. Notwithstanding the silence of the Code, however, if the non-accused target is successful in securing access to the packet under s. 187(1)(a)(ii), he may then seek access to the recording materials upon a new motion in a subsequent proceeding. The procedure outlined by La Forest and Sopinka JJ. for subsequent disclosure of the recording materials is substantially adopted. This procedure, by establishing a mechanism for disclosure which reflects the actual relevance of the recording materials to an action for damages for unlawful interception of private communications, reaches an appropriate balance between the individual's interest in vindicating his rights under ss. 8 and 24(1) of the Charter and the state's proprietary interest in the fruits of its confidential investigations. In this case, since a non-accused target may only seek disclosure of the recording materials in a separate proceeding following the grant of an order opening the sealed packet, the judge did not err in denying at this stage the appellant's request for access to the tapes and transcripts produced as a result of the electronic surveillance.
Per L'Heureux-Dubé J.: The reasons and result of Lamer C.J. are agreed with. In addition, the rationale underlying the minority opinions in Durette, Dersch and Garofoli should also apply a fortiori to a target who is not an accused.
Per La Forest, Sopinka, Cory and Major JJ.: Since the advent of the Charter, a person who was under electronic surveillance and was subsequently charged has been automatically entitled to access to the sealed packet, subject to the editing power of the judge to whom the application was made. This right to access derives both from s. 8 of the Charter, which guarantees everyone the right to be secure against unreasonable search or seizure, and from ss. 7 and 11(d), which guarantee an accused the right to make full answer and defence. However, the wording of the former s. 187 of the Criminal Code does not limit access to the sealed packet to accused targets. Rather, in enacting s. 187, Parliament intended to confer an unlimited discretion on the courts, leaving it to them to determine the circumstances in which access to the sealed packet is justified and the extent to which it should be authorized. Section 8 of the Charter gives non-accused targets, like accused targets, a constitutional right of access to the sealed packet, subject to the power of the judge to whom the application for access is made to edit the documents for reasons of public policy and public interest. Accordingly, because of the constitutional imperatives of s. 8, a judge to whom a non-accused target applies for access can exercise his or her discretion judicially only by granting access to the sealed packet, subject to the judge's power to edit. The scope of the protection conferred on everyone by s. 8 cannot, in this context, vary depending on whether the person who has that protection is or is not an accused.
Nor does the new wording of s. 187 adopted in 1993 limit access to the sealed packet to accused targets. Based on a comparative analysis of the old and new wordings and an examination of the immediate legislative context, there is no doubt as to Parliament's intention. In making these amendments, Parliament chose to impose a legislative framework on the exercise of a discretion. However, it did so only with respect to applications for access made by accused targets, while opting to allow the judicial discretion conferred by the legislation with respect to applications by other persons to remain unlimited.
The right of a target, whether accused or non-accused, to access to the sealed packet is not absolute, even when considered from a constitutional perspective, and can be limited when it is in the public interest to do so. Thus, documents in the sealed packet can be edited in accordance with the criteria approved and procedure outlined in Garofoli. Although an accused target's right of access arises from a combination of ss. 7 and 11(d) of the Charter as well as from s. 8, this does not mean that an accused target has a broader right of access than a non-accused target. The nature of the right of access to documents in the sealed packet is the same whether it derives from s. 8 or from a combination of ss. 7 and 11(d). In both cases, the target has the constitutional right to determine whether the interception complies with the scheme established by Parliament in the Criminal Code.
Recordings resulting from a wiretap are not placed in the sealed packet and access to the sealed packet therefore does not entail access to the recordings. However, if after the packet is opened and the authorization's validity is examined the authorization is declared invalid by the judge, the wiretap carried out pursuant to the authorization will be unlawful and will amount to an unreasonable search or seizure prohibited by s. 8 of the Charter, which will give rise to a remedy under s. 24(1) of the Charter. The general principle of confidentiality applicable to wiretaps ceases to take precedence when the state fails to meet the strict conditions that ensure the wiretap complies with the Charter, and in such circumstances it is appropriate and fair to grant access to the recordings either under s. 24(1) or to enable the target to prove the extent of the damage suffered in order to support an application for damages. Once the target shows to the court's satisfaction that the wiretap was unauthorized, he or she should therefore be given access to any communications unlawfully intercepted by the state, by way of access to the recordings themselves, to transcripts or to any other equivalent source. Such access would be limited to conversations in which the target took part. Moreover, the state should be required to destroy any trace of such unlawful interceptions in its possession.
If the court finds that the authorization complies with the provisions of the Criminal Code and that the non-accused target's arguments based on the contents of the sealed packet do not disclose any other cause of unlawfulness, s. 8 of the Charter then requires a further examination of whether the wiretap complied with the authorization. The rights guaranteed in s. 8 will be adequately protected if the non-accused target is granted indirect access to the recordings. The strict confidentiality applicable to wiretaps requires that the courts be cautious and exercise restraint when the issue of going beyond the sealed packet arises. Thus, even at that stage, a non-accused target will only rarely be given access to the recordings, since it is only through affidavits and relevant documents and by cross-examining the affiants that the target will obtain the information needed to challenge the wiretap's validity. With certain exceptions, the target will not be given access to the recordings to show that his or her constitutional rights were violated. If the court declares that the wiretap is unlawful because it did not comply with the authorization, the target may then be granted access to the recordings, as in the case of an unlawful authorization. Access will be limited to unlawful interceptions to which the target was a party. Finally, an accused target's right to make full answer and defence is provided for in s. 189(5) of the Criminal Code. In addition to this right under the Code, the prosecution may have broader disclosure obligations in the case of an application for production based on Stinchcombe.
In the present case, the appellant's application for access to the recordings is premature. Access to the recordings is not necessary to prove that his right under s. 8 of the Charter was infringed, since such an infringement may result from the unlawfulness of the authorization itself, which can be determined by means of access to the sealed packet. The recordings do not come into play until after the authorization is declared valid, when the issue becomes whether the wiretap complied with the authorization.

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