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Electronic surveillance and the police : a comparative study of the Canadian and Japanese systems Ishikawa, Shoichiro 1986

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ELECTRONIC SURVEILLANCE AND THE POLICE: A COMPARATIVE STUDY OF THE CANADIAN AND JAPANESE SYSTEMS  by SHOICHIRO  ISHIKAWA  LL.B., U n i v e r s i t y of Tokyo, 1981  A THESIS SUBMITTED  IN PARTIAL FULFILMENT OF  THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES ( F a c u l t y of Law)  We accept t h i s t h e s i s as conforming to the r e q u i r e d  standard  THE UNIVERSITY OF BRITISH COLUMBIA November 1986 ©  Shoichiro  I s h i k a w a , 1986  In  presenting  degree  this  at the  thesis in  University of  partial  fulfilment  of  of  department  this or  publication of  thesis for by  his  or  her  representatives.  Law  November 17, 1986  for  an advanced  Library shall make it  agree that permission for extensive  It  this thesis for financial gain shall not  The University of British Columbia 1956 Main Mall Vancouver, Canada V6T 1Y3 Date  that the  scholarly purposes may be  permission.  Department of  requirements  British Columbia, I agree  freely available for reference and study. I further copying  the  is  granted  by the  understood  that  head of copying  my or  be allowed without my written  ABSTRACT  "Electronic monitor  private  powerful  Surveillance",  communications of the suspect  weapons  of  the  police  societies.  In Canada the attempt  balance  police  the  citizen's  the mechanical  right  need  in  resulted  electronic  criminal a  from  governing resorting  investigation.  desirable  The  electronic  to  concept  of  difference  in  and  privacy  Japan,  the  West  has  been  the  the  Canadian  with  surveillance,  enchanting  law  in  no the  method  of  propose  Japan,  taking  of t h i s study f o c u s s e s on and  Japan.  Despite  consciousness  recognized  first  half  of  electronic  the s t a n d p o i n t of the p o l i c e .  the Canadian  i n contrast,  Privacy  as  a  the  between  the vast  Canada  l e g a l l y protected  countries.  In  investigative  of  in this field.  t r a d i t i o n a l privacy  i n t e r e s t i n both  analyzes  in  portion  a g a i n s t the  of t h i s study i s t o  surveillance  introductory  privacy  this  purpose  advantage of the Canadian precedent  The  crime-prevailing  i n the P r o t e c t i o n  specific  refrain  of the most  surveillance  In Japan,  police  to  to s e t up a l e g a l framework to  Act p r o c l a i m e d on June 30, 1974. legislation  i s one  modern  for electronic  to p r i v a c y  technique  t o o l , the police  law  i n that  the  portion,  surveillance  While  also  main  providing  has  i t brought  - i i-  had  the  study  l e g i s l a t i o n from the most p o w e r f u l  a n e g a t i v e impact  about undue  upon  interference,  judicial  or  otherwise,  in  the  operation  of  criminal  investigation.  In with  the  with  for  Japan,  last  Japanese  conclusion can,  the  reached some  surveillance  half system  is  that  system  while  preserving  police  in criminal  main  the  Japan  portion,  electronic Canadian  modification,  with  the  the  for  that  necessary  and  of  should  less  study  deals  surveillance.  The  legislative an  power  independent  precedent  appropriate  introduce  intrusive  traditional  investigation.  be  the  an than  model  electronic in  authority  Canada of  the  TABLE OF  CONTENTS  I.  INTRODUCTION  II.  PRIVACY  IN THE WEST AND  A.  Privacy  i n Canada  B.  Privacy  i n Japan  III.  ELECTRONIC SURVEILLANCE  IN CANADA  A.  Electronic Surveillance  before  Protection 1. P o l i c e  1  JAPAN  and O t h e r W e s t e r n C o u n t r i e s  of P r i v a c y  1.  t h e Enactment  of t h e  Act  17 17 Decisions  of the P r o t e c t i o n of t h e P r o t e c t i o n  20  of P r i v a c y of P r i v a c y  Act  23  Act  24  Introduction  2. G e n e r a l 3. Scope  Outline  (i) (ii) (iii) (iv) (v)  24 of the P r o t e c t i o n  of the P r o t e c t i o n  a. Meaning  of P r i v a t e  of P r i v a c y  Act  Act  26 29  Communication  30 30  Suspicion  o f the O r i g i n a t o r  30  Knowledge o f t h e O r i g i n a t o r  32  Consent of the O r i g i n a t o r  33  Originator  36  o f Communication  of I n t e r c e p t i o n  ( i ) Requirement (ii)  of P r i v a c y  General D e f i n i t i o n  b. Meaning  4.  17  Behaviour  3. A d v e n t Analysis  3 9  2. L e g i s l a t i o n and C o u r t  B.  3  Requirement  of T h i r d o f Use  37 Party  37  of A r t i f i c i a l  Device  39  Lawful E l e c t r o n i c S u r v e i l l a n c e  40  a.  41  Electronic Surveillance  b. E l e c t r o n i c S u r v e i l l a n c e Authorization  w i t h Consent with  Judicial 44  - iv -  TABLE OF CONTENTS (Continued) ( i ) Ordinary A u t h o r i z a t i o n ( i i ) Known Person and Primary Target ( i i i ) Renewal of A u t h o r i z a t i o n ( i v ) Emergency A u t h o r i z a t i o n (v) P o s t - A u t h o r i z a t i o n N o t i c e 5. E v i d e n t i a l Rule a. P r i m a r y Evidence b. D e r i v a t i v e Evidence C.  44 48 53 54 54 55 56 57  Impact of the P r o t e c t i o n of P r i v a c y A c t on the P o l i c e  57  1. P o s i t i v e Aspect to the P o l i c e 2. N e g a t i v e Aspect to the P o l i c e 3. C o n c l u s i o n  57 61 65  D.  C o n s t i t u t i o n a l i t y of the P r o t e c t i o n of P r i v a c y A c t  65  IV.  ELECTRONIC SURVEILLANCE IN JAPAN  72  A.  Necessity  72  B.  L e g i t i m a c y of E l e c t r o n i c S u r v e i l l a n c e  78  1.  Court D e c i s i o n  78  2. 3. 4.  Legislation Constitution Conclusion  80 83 87  C.  V.  Desirable i n Japan  of E l e c t r o n i c S u r v e i l l a n c e  Contents of E l e c t r o n i c S u r v e i l l a n c e Law 88  CONCLUSION  96  - v -  TABLE OF CONTENTS  NOTES  (Continued)  99  BIBLIOGRAPHY  121  - vi -  ACKNOWLEDGEMENT  I Peter  Burns  National of  am d e e p l y  f o r h i s lecture  Police  and  Dr. Malcolm  Wilson, Phil  also  owe  Ministry  insight  and  into  Japanese  scholarship National  Canadian  Andrascik,  which  was made  me  criticism;  Commissioner Police,  Institute  Co-ordinated  provided  me  J.L. Crich,  officers with  British  Enforcement  Inspector  other  D.K.  Director  of  Law  p o s s i b l e by f i n a n c i a l  which  1985 t o 1987. Agency  convinced  o f t h e law; D r . J o h n  Mounted  Justice  and many  at the  encouragement.  General,  granted  me  the  for their practical  and t h e N a t i o n a l  and most  graduate  to the s t a f f  Personnel  from  of the  Authority f o r  opportunity.  importantly,  f o r h e r p a t i e n c e and i n n e r  - v i i -  support  i t s long-term  I am g r a t e f u l  a s s i s t a n c e i n my o b t a i n i n g t h i s  Satomi,  area  Dean  o p e r a t i o n o f t h e law.  Government, from  system  1985, w h i c h  to A s s i s t a n t  Academy,  assistance  Finally, wife,  Royal  Department,  study  Police  this  deal  the Attorney  the a c t u a l  This  their  a great  A.  of  Police  friendship  into  police  s u p e r v i s i o n and c o n s t r u c t i v e  Police  Inspector  Vancouver  i n June,  Smith f o r h i s continuous  Crosby-Jones,  Unit,  UBC Law P r o f e s s o r s :  on t h e C a n a d i a n  of r e s e a r c h  "E" D i v i s i o n ,  Columbia,  to three  i n Tokyo  f o r his helpful  I  the  Agency  the importance  Hogarth  indebted  thanks support.  a r e owed  t o my  I.  INTRODUCTION  The police  development  with  information, Among  them,  various  advanced  methods  identify  suspects  and  "electronic  to l i s t e n t o and r e c o r d one  of  the  of modern t e c h n o l o g y  most  powerful  create  a continuous  threat  their  criminal  activities.  t h e mechanical  technique  communications of the s u s p e c t s i s  weapons  p e r f o r m i n g the c r i m e - f i g h t i n g  collect  survey  surveillance", private  to  has p r o v i d e d the  duty.  of  the  police  in  their  On the o t h e r hand, i t could  t o the c i t i z e n ' s r i g h t  to privacy i f  performed w i t h o u t r e a s o n a b l e and n e c e s s a r y c o n t r o l .  Thus, important social  i n the c o n t e x t  t o s e t up a framework  interests,  information  on  namely,  criminal  individual's right this  framework  proclaimed lawful  on  interception  restricting the  and  seems  in  After  to have  method  of both  gathering  i n major right  crime  is  the two c o n f l i c t i n g  the p o l i c e  to  the p r o t e c t i o n  the  Protection  obtain of the  a decade  furnished  of c o n f u s i n g  j u d i c i a l c o n t r o l over the p o l i c e conduct.  with  and  while  of the c i t i z e n s  - 1 -  the scope of  the p o l i c e  investigation,  Actl  communications under  evidence-gathering  to privacy  of P r i v a c y  has d e c i d e d  by the p o l i c e of p r i v a t e  effective  constitutional  of  it  In Canada, the attempt t o s e t up  30, 1974, which  conditions.  law now  activities  resulted  surveillance  to balance  the need  to privacy.  June  of e l e c t r o n i c  practice, the most  intelligence-  protecting by  virtue  the of  In legislation from  Japan, governing  resorting  investigation, them  to  only  investigation, the  The electronic Canadian  surveillance difference two  means  purpose  of  in  the in  in  with the  refrain  of  criminal  i t is getting crime  the  crime,  difficult  situation for  the  traditional  activities  both  and  specific  police  method  impossible  of  no  of  of  for  in  the  police  to  methods  of  "Boryokudan",  "Kageki-ha",  the  terrorists.  surveillance  of  seems  organized  precedent  analysis  that  escalating  traditional  ul.tra-leftwing  the  the  enchanting  deteriorating  it  by  hand,  surveillance  result  the  Especially,  suppress,  other  this  the  with  the  electronic  to  with  deal  country.  on  law this  study  in  is  Japan,  field.  legal  Canada  crime  this  to  taking  This  situations and  Japan,  situation  and  countries.  -  2 -  propose  will  a  advantage be  done  concerning and  police  desirable of  the  through  electronic  examination accountability  of  the  between  PRIVACY IN THE  II.  Before this to  study,  with  starting  namely,  briefly  in  the  the  related  suspects  other  Act  is  a  legal  the  police  fundamental  to  against  the  interest precedent  surveillance  law  Western survey  goes  without  countries  be  conducted  by  Bell  surrounding  spread  the  Survey,  which  Ontario  in  protection  i s t o be  sixty-two  concerned  about  the  that  privacy  percent  Other  of  sample ninety  were  t h r e a t s to t h e i r  - 3 -  a  legally Canadian  the  electronic  in this  study.  and  According "privacy  key The  of  or  very own  the  public  important,  concerned  privacy.3  to  a  and issue  i n London,  respondents  very  other  London P r i v a c y  households  percent  a  i n Canada  the  210  balance  exists  as  1982,  is  to  Countries  May,  of  privacy  there  privacy.  important  them  of  to  technologies."2  as  the  privacy  people  in  compared is  If  proposed  on  like  surveillance  legislature  Western  that  as  of  P r o t e c t i o n of P r i v a c y  of  information  new  Japan  topic  I would  countries,  value  a random  showed of  of  in  irrelevant  Canada  personal  polled  1982,  much  se,  right.  both  saying  place  Canadian  main  per  into  The  concept  i n Japan which  of  that  the  the  electronic  privacy  might  confidentiality  the  in  the  P r i v a c y i n Canada and  It  privacy  intrusions  between  legislative  A.  of  concerned.  by  on  surveillance  the  citizens  difference  protected  discussion  because  framework  need  JAPAN  concept  West,  inseparably and  the  electronic  examine  that  WEST AND  or  cited and  somewhat  Although was  claimed  for  important  concept  existence  of  at,  or  groped  the  Bible,  private  Theologiae,  a  the  individual  of  upon the  the  century, who  and  were rural  small  In  Edward  the  amount  the  article,  changes  of  of  and  Shils  privacy in  addition with  the  classes  to  of  the  the as For  Aquinas'  sphere  and  his  implies and  privacy  Summa  private  "discussion a  diffused third  number  of  from  the a  the  high  of  value  the is  autonomy."7  the  as  of  that  oppressive  i n European  quarter the  urban  moral  daily  of  the  working  opinion  scrutiny  and  of  of  others  result  of  the  Its Constitution  and  Vicissitudes,8  the  reasons  during  this  the  of  to  the  basic  urbanization  concept  such  Locke.5  that  the  detailed enjoyed  in  Aquinas  emerged  Privacy:  associated  emergence working  society  and  West,  and  hinted  privacy.6  huge  from  communities,  revolution. Professor  free  More  off,  codes  the  the  germane  of  a  in  that  problems,  during  when  legal  an  moral  individual's interiority  nineteenth  marked  been  of  community,  societies  long  privacy  encyclopedia  between  appreciation  had  found,  out  i n d i v i d u a l conscience  American  village  the  r i g h t to  i s maintained  oldest  points  medieval  of  be  Thomas  discussions  that  It  writings'^  Plato,  Velecky  Modern  classes,  "can  [the]  distinction  and  supremacy  realm  legal  privacy  thinking.  some of  typical  when the  time,  philosophical  several  recognized  in  in  Lubor  contains  first  Socrates,  instance,  i n 1890  i n Western  for  influential  North  the  the  most  set  i t was  and  for  period.  ecological  - 4 -  increase According and  countries,  among the  in to  economic  industrialization,  respectability  industrial  the  industrial  the  the urban  puritanical  ethos  which  "not  his  own  but  also  his  attention  from  soul  only  and  the  encouraged  his  on  and  increasingly economic  a  liberal  of  which  ninteenth  lives  became  journalism, personnel  more  a  against  the  gossipy  his  entitled  been  defamation, etc., broader  and  the  "the  golden  people  more  in  Louis  Mrs.  breach concluded  principle  to  the  the  quarter  age  had  the  to  the  had  by  to  separate  -  5 -  and  the  Warren detailed  turned  the  out  an  himself  and  Harvard  Law  i n which  grounds  based  r e c o g n i t i o n , to  relief  such  property  reality  of  research."11  Warren  of  much  "popular  Samuel  precedents  in  by  business,  in  end  private  published  invasion  were  the  specialist  lawyer  confidence, they  By  Their  sociological  article  common law  the  nineteenth  intrusions  Boston  The  to  begun t o be  privacy.  different  entitled  of  long-lived.  private  which  private  of p r i v a c y " .  not  ...  for  contributing  several'  that  repect  governments  Privacy"12  Brandeis.  on of  by  and  Warren's p r i v a t e a f f a i r s  Right  a number of  afforded  of  large-scale  journalism  "The  growth  investigators,  a  "focused  the  vulnerable  of  thereby  family  individuality,  their  and  own  attention  i n t h e West  and  his  his  was  to  of  for  diverted  third  age  responsibility  and  factors  golden  outcry  about  ...  main  psychological  yellow  examined  in  police  personal  colleague,  Review had  of  stories  articled  and  recruitment  1890  the  threats  private  practitioners In  the  and  constitutional  were  the  ambitious"9  education,  century,  about  be  man's  property  growth o f  and  is called  each and  goal  the  privacy  However,  concerned  to  remote  activities  century,  the  him  increased  efflorescence  of  well-being  neighbors",10  literacy  emphasized  as  right, upon  wit,  a the  right  to  privacy.  later  described  most  comprehensive  civilized issue  of  both  organizations intrusive  rights  intimate  by  an  right  the  Justice most  about  and where  aspects  sector  public  of  private  and by v a r i o u s  i s getting  the  legal  of the  f o r various  agencies  by  government  the c o l l e c t i o n  t h e law e n f o r c e m e n t  as " t h e  important  many  was  valued  enlarged  i n exchange  to  the a r t i c l e  increasingly  details  proportion  by  Court  the  where  i n the p r i v a t e  in  Supreme  and  the c i t i z e n s t o them,  proposed  as a  countries,  of  provided  information  right  and has been  demands  lives  new  Brandeis  Western  bureaucracy  services  by  men",13  in  private  The  more  development  and  of  more  modern  technology.14  In  fact,  the  recognized  for  the  succeeded  in  having  jurisprudence. synthesized and a  year  which  resort  defendant its  was  in  Robertson  merchandise  compensation  to  the  a whole  a new  stop  the p u b l i c a t i o n  f o r damages.  The New  - 6 -  privacy,  upon  American having  of l e g a l  rights  of j u r i s p r u d e n c e . " 1 5  Within  category  reported  the  case  appeared  and  Brandeis  Warren  time  before  lady  where to  asked  of h e r p i c t u r e  as  Court  of Appeal  the  advertise  The p l a i n t i f f  York  of the  a court of l a s t  Box Co.,17  o f a young  her consent.  which  of  Folding  use of the p i c t u r e without  to  In 1902 t h e e x i s t e n c e  f o r the f i r s t v. R o c h e s t e r  right  distinction  the f i r s t citing  Brandeis,  impact  new  field  and  legal  unique  t o p r i v a c y . 16  i n issue  made  injunction  the  recognized,  the r i g h t  Warren  tremendous  the p u b l i c a t i o n  expressly  new r i g h t  stroke  by  time  a  initiated  after  article.,  first  " I t enjoys  a t one  of having  article  f o r an well  as  i n this  case  rejected  right  to  the  privacy.  disapproval, pass  laws  Georgia  with  England  the  plaintiff's his  Robertson  case in  Life  this  recognized by  the  the  right  been  right  or  make  by  a  bold  various  of  breach  the the  of  trespass  statutes  has  been  Criminal  Like  an  Privacy  - 7 -  Canadian right  used  to  as  a  English  courts,  to  grope  new been  at  well 173  Further, i n 1973,  and  prior  ...  head  of  legally  common  interference as  forward,  concepts  long  Section  Act  recognized  the  recognized  as  leading  already  legal  had  nuisance, such  of  other  entirely  contract,  Code.23 of  some  established  and  remedies  Protection  of  content  action  right  the  privacy  to  follow  States.20  counterparts,  interests  of  be  general  commitment privacy  to  to  the  a  been of  became  came  used  advertisement  distinct  United  action.21  v.  of  This  support  of  causes  defamation,  miscellaneous  in  Pavesich  defendant  recognize  of  grooves  However,  right,  to  of  refused  privacy  American  "have  the  to  i n the  term  cause  courts  along  liability."22  the  principle  Canadian  than  the  reluctant  recognized  of  in  the  a  public  Court  court  Brandeis.  a l l jurisdictions  to  the  existence  and  contrast  in  case  Warren  and  of  enactment  question  In  statement  381(l)(f)  same  Supreme  consent.  Instead,  property  the  of  the  l e g i s l a t u r e to  i t s newspaper  have  as  e s s e n t i a l l y the  1905  York  picture  privacy.  such  In  New  recognize  storm  and  proposed  protected  privacy.18  the  a  name  In  rather  forced  about  where  and  cautiously  brought  to  Company,19  virtually  the  decision  declining  Insurance  thereafter,  courts  request,  eventually  protecting  dealt  without  The  which  New  privacy  plaintiff's  law,  with as  a by  Section to  w h i c h was  the the  first  federal  right  to  and  legislation  privacy,24  Saskatchewan  created  civil  According "the  to  the  against  activities.  It  kinds  of or  publicity  which for  surveillance  law  on  task  of  surveillance, Canada right  it  by  Supreme C o u r t  public  of  a  of  added  of  in  that  recognized  United  1976, and  measure  by  States  the the  both  by  the  a civil In  of  range is  of  of  of  false  name  psychological  the  categories  right  context  of  courts action  K a t z v.  facts,  plaintiff's  privacy  the  physical  and  developments  in  United that  of case  i s not  a  electronic States the  in tort,  United  of  and  privacy but  States,29  held:  [T]he Fourth Amendment protects people, not places. What a p e r s o n k n o w i n g l y e x p o s e s t o the p u b l i c , even i n his own home or o f f i c e , i s not a subject of Fourth Amendment p r o t e c t i o n . But what he s e e k s t o p r e s e r v e as p r i v a t e , even i n an a r e a a c c e s s i b l e t o the p u b l i c , may be c o n s t i t u t i o n a l l y p r o t e c t e d . 3 0 - 8 -  at  light  that to  human  directed  private  the  maintained  aspects  note  in  plaintiff's  in  benefit  is  Constitution. the  privacy  exploration  merely protected the  law  of  wide  disclosure  However,  should been  a  plaintiff  The  privacy.  provincial  fair  covers  " i n t r u s i o n s upon the  it  of  Burns  and a  thereby  privacy."26  s u r v e i l l a n c e be  study.  Peter  the  Manitoba  and  invasions  Canadians  the  the  protect  Acts25  common law,  defendant's  data  we  of  that  multifarious  has  i s not  guaranteed  the  privacy.28  this  extant  to  Columbia,  Privacy  Professor  privacy  Also,  and  each of of  said  places  likeness."27  invasion  of  solitude,  appropriation  by  was  British  unreasonable  the  invasion:  seclusion  for  invasions  is  of  grants[ed]  concept  object  general  description  e f f e c t of  The  or  adopted  legislation,  protection  four  had  main  Provinces  liability  combined  federal  the  whose  also the  Similarly, v.  Southam  Section  Inc.31 8  or  right  to  The affected varies  by  of  culture  The  conducted  by  polled  random  a  striking percent  the  of  their  The own  of  Freedoms32  unreasonable  privacy. Canada  that  search  Thus,  is  to  be  the  one  of  study.  in  any  to  It  is  little  used  "puraibashi") of  to the  privacy  adults  in  the  d i d not  of  ratio  seems  London  them of  that  Privacy  know the  were  concerned  t h o s e who no  the  is greatly  had  emphasis related  - 9 -  to  of  about  experienced  more t h a n n i n e t e e n  in  of  in  no word  current  1981,  which  shows  a  supra.  Ten  privacy.  Only  the  protection  any  intrusion  percent.33  Western  the  privacy  country,  Survey,  concept  the  consciousness  sample to  that  English  i s used  the  privacy  contain  in February,  3,000  of  on  Office  of  profoundly  known  value  Therefore,  survey  is  value  widely  language  "privacy". spelled  society  Therefore,  placed  Japanese  p r i v a c y was  privacy  in  study,  and  Prime M i n i s t e r ' s  percent  It value  society  respondents  privacy.  privacy  society.  opinion  contrast  twenty-five  into  to  (phonetically  literature.  in this  against  traditions.  Indeed,  equivalent  "privacy"  i n Hunter et a l .  of R i g h t s  of  privacy  and  Japanese  individuals. precise  of  society  traditional  later  right  in this  Canada  i n Japan  notion  from  secure  the  protection  Privacy  of  detailed  be  primary considerations  B.  of  as  Court  Canadian Charter  protects  constitutional the  the  "the  seizure"  Supreme  declared,  of  guaranteeing  the  culture  Christian  on  the  principles,  upon  which  Western  importance of  human  of  being,  i n short,  material own  individuality.  b e i n g , Man,  spiritual soul;  civilization  a person,  universe while  integrity  and  essential secrets  the  one's  intrusion disagreement  students  (e.g.  groups,  when,  and to  heard  person  etc.),  touched,  be  dispute  individual element  of  by  smelled  the  be  or  respect  of  by  an  dignity  ultimate unwanted  among "the for  and  be  is  whom  the  seen  others"38), there  as w e l l  that  them  recordings,  means  to  as  a  of  themselves  by  can  Western  claim  about  when  is  considerable  right  persons)  p e r s o n a l freedom and  the  the  essential  it  against  photographs,  tasted is  which  determine  over  for his  identity,  information  identifiable  privacy and  to  immortal  individual's  l e t alone",36  "control  use  the  within  privacy  extent  (as  ensure  Despite of  an  all a  i n v a l u e a l l the  inviolable  institutions  what  us  that  to  i s "above with  the  concept  responsibility  personal  remain  "right  or  autonomy  of  to  definition  or  and  of  God,  exceeding  charge  advocating  Christian  endowed  of p r i v a c y  self  o t h e r s " , 37  part  no  such,  order  zone  to  (physical) (in  a  the  individuals,  communicated  as  the  of  free,  observation.35  about  how,  and  in  core  or  and  built,  to  image  development  to p r o t e c t of  i n the  having  And  been  According  intelligent  destiny."34  legal  made  has  or  T.V. ,  seems  to  guarantee  fundamental  individuals  are  owed  as  human b e i n g s . 3 9  In emphasizing privacy which  contrast, the  autonomy  i s derived  has  had  a  Japanese of  i n Western  profound  culture  individuals, culture.  influence  - 10  The  upon  -  has  from  no  which  tradition the  tradition  the of  Japanese  v a l u e of Buddhism,  mentality,  "recognizes of  the temporal,  e g o , and  by  identification Buddist  tradition,  self  as  an  long  only  the i d e a l  state  of n o - e g o ) ,  independent  conditioned  Men  a r e not equal  as a member  in a hierarchical  superior  who  upon  used  private to  society  Minister's full-scale  loyal  and o f t e n of  the  The  Office,  of  supra,  consciousness  immediately  the  of  the  web  consciousness  of  as  to  opposed of  has  Man  and  significance  must,  l a y down of  as d u t y , rules  i n the  group  right  i t seems  survey  War  of J a p a n e s e p e o p l e has n o t f u l l y  - 11 -  that  in  by  about there  norms the  spite  II,  name  Japanese  and  of the Japanese World  good  traditional  that  an  insists  t o know  individualism  opinion  t o which  of the group's  Thus,  orders.  etc.) i s highly The  a moral  An  obey h i s  and  the group  nation,  indicates  after  from  order  exercises  democratic reformation  place  of  t o w h i c h he b e l o n g s .  maintenance  of  being i s  "the r e j e c t i o n  concept  (Messhi Hoko).  development  t o the  group  the i n d i v i d u a l .  result  moral  community,  room  through  C o n f u c i a n i s m , which  Confucian  to  i f any,  nature  according  the i n d i v i d u a l  social  compelled  little,  for  privacy.  took  life  be  and  (family,  often  outsiders,  Also,  i n the i n t e r e s t s  the i n d i v i d u a l ' s  before the  belongs and  the  the a u t h o r i t y  oneself  individual advocated  has  separate  collectivism  of a h i e r a r c h i c a l  inferior  Sacrificing  to  self  o f a human  means  traditional  emphasizes  According  Thus,  which  agent  changing  the true  o f mind  causes."41  the  people,  individualism. society,  i s l e d to find oneness."40  dominated  Japanese  impermanent,  universal  (state  interconnected had  doing  with  Muga no K y o c h i the  so  passing,  Prime  of  society, the  of  the which  privacy  developed y e t .  An in  privacy  activity visit  i n t e r e s t i n g example  consciousness  by  to  the the  responsible so  that  shall the  a l l the  be  called  police  residence  plate  Japanese  routine  upon  address,  number  are  filed  by  law  of  in  date  but  police  supported  cooperation  with  conducted  by  Canadian  invasion  of  privacy.  officer five  in  one  years  several  the  of  "In  households  Western f o r e i g n e r s  protection in  of  Japan?  answering  reject  privacy  "yes"  that  of  visit  as  home  address,  of  birth,  occupation,  members, e t c .  I  activity which doubt  was  police  be  stations  routine  of  And is  the  school,  those  cards  not  authorized  stresses  voluntary  such  told  jurisdiction  arises:  is  i n proposing  seem  to t h i s  First  each  information  No  the  On  activities,  totally by in  a  rejected  senior  Hyogo  this  as  police  Prefecture  police  visits.  if  They  station are  all  consider  the  (Gai j i n ) . "  question  There  universality  the  households  a police station  average.  p o l i c e f o r c e s , would  major  is  out  tradition  Indeed,  officer  hundred of  (routine  fills  This  police.  the  ago;  The  by  patrol  unique  and  family  post.  i s the  Renraku"  five  on  difference  resident  place  automobile,  each  the  such  and  each or  the  Japan  jurisdiction  months  interviews  and  "Junkai  four  i n the  containing  West  Japan  to  six  illustrates  called  In  visits  every  officer  the  police  residents  card  permanent  between  residents).  for  which  to  be  i t necessary an  to  electronic surveillance  several  convincing  reasons  law for  question.  a l l , the transcends  right national  - 12  -  to  privacy  boundaries  has by  acquired v i r t u e of  a the  Universal  Declaration  o f Human R i g h t s . 4 2  Under  Universal  Declaration  o f Human R i g h t s ,  which  Government  i s obliged  t o comply  Article  12 o f t h e  the  Japanese  with:  No one s h a l l be s u b j e c t e d t o a r b i t a r y i n t e r f e r e n c e w i t h his privacy, family, home o r c o r r e s p o n d e n c e , n o r t o a t t a c k s upon h i s honour and r e p u t a t i o n . E v e r y o n e has the r i g h t t o t h e p r o t e c t i o n o f t h e law a g a i n s t such i n t e r f e r e n c e or a t t a c k s .  The which  has  Japan.  second  been  firmly  The p o s t - w a r  American  locus  of  Above  with  Sovereignty  was  fundamental  human  fundamental  concept  privacy  i s derived,  system.  Article  and  itself,  Constitution of  was p a s s e d ,  in legitimized  under  the  hands  idea  of  of  character  the  of Western has been of  rights  i n the sense  human n a t u r e " 4 5  heavy  the  and people,  of " r i g h t s that  dignity  incorporated  freedoms. and t h e  logically  individual,  which  a  f o r the f i r s t the  the value  i n t o t h e Japanese  C o n s t i t u t i o n of Japan  of  legal  proceeds  (translation): A l l o f t h e p e o p l e s h a l l be r e s p e c t e d as i n d i v i d u a l s . Their right to l i f e , liberty, and t h e p u r s u i t of happiness shall, t o the extent that i t does n o t interfere with the p u b l i c welfare, be t h e supreme c o n s i d e r a t i o n i n l e g i s l a t i o n and i n o t h e r governmental affairs.  - 13 -  and  possessing  derives  of  from  values  parliamentary  was r e c o g n i z e d  tradition  the  public  a strong  individual  in  rights  13  which  a l l , i t established  placed  the  t h e 1947  Japan  as an amendment t o t h e 1889 Me i j i  and p r e c o n s t i t u t i o n a l  Thus,  by  of  a veritable constitutional revolution i n  extensive  i n e v i t a b l y from  time.  Constitution,  sovereignty  democracy,  and  established  embodied  institutions.44  prestate  i s t h e democracy  i n f l u e n c e , by t h e D i e t  Constitution,45 the  reason  relation  The  difference  to  the  between  protection  democracy  of  privacy  and  totalitarianism in  has  been  described  as  follows: Totalitarian systems deny most privacy claims of individuals and non-governmental organizations to a s s u r e c o m p l e t e d e d i c a t i o n t o the i d e a l s and programs of the state, while the totalitarian state's own governmental operations are conducted in tight secrecy. Democratic societies provide substantial amounts of privacy to allow each person widespread f r e e d o m t o work, t h i n k , and a c t w i t h o u t s u r v e i l l a n c e by p u b l i c or p r i v a t e a u t h o r i t i e s , and to provide similar breathing room for organizations; but they try to strike a delicate balance between disclosure and p r i v a c y i n government i t s e l f . 4 6 If  the  Japanesse  distasteful to  memories  firmly  there  commit  should  privacy  people  of  be  of  no  in  existence  the  country.  Mishima's  right proper  of  as to is to  the  present  interference  was  quite  to  keep  the  and  are  mind,  democratic  by  the  September  the  Ato  new  the  1964,  ( A f t e r the  r i g h t was  case  novel  28,  appropriate  regime,  state  arose  with  book  and  a  famous  the  right  not  public,  the  longer  consider  and  ruled  a  matter  demanded  by  human  interest  which  only it  private  as  a  - 14  -  "to  time of  respect ethic, is  who  was  mental in  life  in  Yukio  his  right  to  i n which  first  for  Tokyo  right  politician,  privacy  one's that  the  sued  the  have  the  publication  therefore  comprehended to  for  the  court  the  Banquet) T r i a l , 4 7  with  concerning  that  recognized  in issue  The  the no  it  This  about  context  are  totalitarianism in  to  arbitrary  U t a g e no  model  distress.  opened  on  the  the  unhappy  pre-war  government  citizens.  Court  privacy  their  themselves  Therefore, District  and  this  wantonly  the but  privacy it  elevated  is to  the  point  of  infringement  being  and  so-called  right  to  a  the  i t as  Article of  the  13  of  the  right.  the  legal  this  (translation). the  dignity  court  does  of  is  not  unlawful  subsumed  preclude  i t should  be  in  the  referring noted  that  i n d i v i d u a l s guaranteed  supra,  stated  against  right  Also,  Constitution, The  relief  privacy  personality,  considered  of  new  although  right"  judgment  accorded  as  the  fundamental  by  basis  (translation):  The i d e a of the d i g n i t y of the i n d i v i d u a l , w h i c h i s one of the f u n d a m e n t a l c o n c e p t s of modern law and one on w h i c h the C o n s t i t u t i o n of J a p a n s t a n d s f i r m l y , can o n l y be secured by mutual r e s p e c t f o r p e r s o n a l i t y and by protection from improper i n t e r f e r e n c e , and for this r e a s o n i t c a n n o t be p e r m i t t e d to p u b l i c i z e a n o t h e r ' s personal a f f a i r s without s u i t a b l e reason.  This followed Trial48 court  by on  c o n s t i t u t i o n a l approach  the  December  recognized  aspect  Supreme C o u r t  of t h e  the  privacy  24,  i n the  1969,  right  in  of  right.  the  Shozoken  which  a person The  to  court  to  the his  ruled  privacy (Right Grand own  right  to  was  Likeness)  Bench  of  likeness  as  the an  (translation):  Now, A r t i c l e 13 of the C o n s t i t u t i o n p r o v i d e s t h a t a l l of the p e o p l e s h a l l be r e s p e c t e d as i n d i v i d u a l s . Their right to l i f e , l i b e r t y , and the p u r s u i t of h a p p i n e s s shall, t o the e x t e n t t h a t i t does not i n t e r f e r e with the public welfare, be the supreme c o n s i d e r a t i o n in l e g i s l a t i o n and i n other governmental a f f a i r s . I t can be said that t h i s provides t h a t the p e o p l e ' s f r e e d o m w i t h r e s p e c t t o t h e i r p r i v a t e l i v e s s h o u l d be p r o t e c t e d a g a i n s t the e x e r c i s e of s t a t e powers s u c h as the p o l i c e power. As one of the f r e e d o m s of the i n d i v i d u a l w i t h r e s p e c t to p r i v a t e l i f e , i t s h o u l d be s a i d t h a t e v e r y man has t h e f r e e d o m not t o have h i s f a c e or p h y s i c a l appearance (hereinafter, "face") photographed i n v o l u n t a r i l y and w i t h o u t p e r m i s s i o n . 4 9  To people  sum  thereto,  up,  despite  privacy  has  the  traditional been  - 15  -  i n d i f f e r e n c e of  recognized  as  a  the  legally  protected value one  by of  interest the the  surveillance  in  courts. major  Japan, Thus,  and the  considerations  i n J a p a n as  has  been  protection in  well.  - 16 -  the  given  constitutional  of p r i v a c y context  of  should  be  electronic  III.  ELECTRONIC SURVEILLANCE  IN  A.  Electronic  Surveillance  before  Protection  of  1.  Police  Since Privacy  Act,  Canada.  RCMP  wiretapping  War. 51  During  forces the  one-party  consent  Community from  "necessary organized  decided  the  was  the  years  period  Police  used  1972  been  355  in  from  the  to  1973.53  by  with  the  forces the both  common  among  Second  World  the  RCMP  wiretapping  with  The  the  Montreal  sixteen  Clearly,  police  Police  and  1973,  eavesdropping.52  April,  coping  the to  during  an  Commission,50  became  1963  as  police  1930's,  including  wiretaps  considered in  McDonald  used  Mounted  other  following  intrusions  electronic  widely  of  electronic  personnel  ever-increasing  month  to  be  a  sophisticated  crimes.54  electronic  common  year  and  of  eavesdropping the  electronic  business"  In  be  had  of  Protection  Canadian  wiretapping  in  ten  January,  surveillance  of  report  electronic  1,912  period  RCMP") and  the  the  been  "the  to  police  had  Royal  According  and  of  the  as  use  enactment  by  to  conducted  Urban  the  referred  the  Enactment  Act  surveillance  technique  started  Canadian  before  electronic  (hereinafter  the  Behavior  long  investigative  in  Privacy  CANADA  the  absence  surveillance by that  permission  the  of  - when  individual  electronic of  relevant  a  high  legislation,  i t should police  - 17  -  resorted  forces,  surveillance police  be  had  the  and  been  authority  to one  used because  policy  on  - was  to  thing  in  only  with  of  its  sensitive Toronto  nature.55 Police  Commissioners policy  the  Department.  of  case  there  has been  situation  the  RCMP  Police will of P o l i c e  and p r o b a b l e  o r i s about  was  somewhat  Headquarters  use  wiretapping  investigation  of c r i m i n a l  this  policy  field in  was  from  purpose  to  veillance trial,  as  decided  the  i n h i s opinion that  a criminal  As t o t h e RCMP  since  M a r c h , 1959,  the p o l i c y  of  the  where  obtained.57  forbidding  force  to  Although  the p r a c t i c a l  wiretapping  of the f o r c e  was b e i n g and t h i s  who were  i n the  the consent  of a  electronic  was n o t r e f e r r e d  of the p o l i c y ,  to i ni t , demands  of  c a r r i e d out p r a c t i c e was  responsible f o r  policy.58  aspect  of  the e l e c t r o n i c  P r o t e c t i o n of Privacy Act  In o t h e r  " n o t as a t o o l  but  when  because  except  contrary  was n o t t h e g a t h e r i n g  intelligence.59  of  the approval i n  to believe  members  As a r e s u l t ,  important  the  and o n l y  wiretapping  top o f f i c e r s  One  be w i t h  had t a k e n  was  i n defiance  Headquarters'  prior  than  only  chaotic,  matters,  clearly  operations.  withheld the  other  the f i e l d  Board  by any member o f  t o be c o m m i t t e d . "56  by  to the conversation  eavesdropping  the  Toronto  equipment  cause  i n Ottawa  of  party  1969,  f o r Metropolitan  Toronto  of the Chief  the  the  March,  and e l e c t r o n i c l i s t e n i n g ]  i s reasonable  offence  In  of the M e t r o p o l i t a n  e l e c t r o n i c s u r v e i l l a n c e as f o l l o w s : "The u s e o f  Metropolitan  each  Police  concerning  [wiretapping  L e t us s e e an example  an  aid  of evidence,  words,  evidence  investigation  - 18 -  that  i t s primary  but the gathering of  the p o l i c e  to gather to  is  surveillance  used  electronic  sur-  f o r p r e s e n t a t i o n at -  to  keep  under  surveillance  those  here  the p o l i c e  i s that  intelligence  surveillance  had been  using  that  intelligence  to monitor  apart  electronic knowledge  of crime."60  is  i n an i n v e s t i g a t i o n  "strategic  figures  suspect  gathering",  surveillance for  they  from  on t h e p a r t  for "tactical  to  event-specific  gathering",  was  say,  of  able  that  and  investigation  offences,  but also  i s to say, panoptic  association  specific  t o be  of the p o l i c e  note  i t not only  of p a r t i c u l a r  activities  surveillance  What we s h o u l d  of  offences.61  performed  of what  criminal  kind  The  without  firm  o f o f f e n c e had  b e e n o r was t o be c o m m i t t e d .  On from  adducing  unless was  t o do so was r e a l l y  the  formal  municipal  police  reported  cases  been]  can  infer  police  such  of Privacy some  from  evidence: but  forces  performed  the  where  mental  the e l e c t r o n i c  alert  that  but  [were]  less  obtained  before  o r dilemma  about  - 19 -  the  a dozen  electronically  on t h e p a r t  We  of the  c o n v e r s a t i o n as  disclosure police  of the  aspect.  i s a necessary The  This  Montreal64  than  this  t o use t h e i n t e r c e p t e d  criminals  trial,  to the  t h e enactment  illustrates  surveillance  also  i n Toronto,63  evidence  secretly.  at  t o t h e RCMP,62 w h i c h  wiretap,  "there  state  refrained  i n the circumstances.  those  Act eloquently  shady  be  as  i n court"66  the reluctance  i t must  would  i n Canada  as e v i d e n c e  common n o t o n l y  prohibiting  The f a c t  deliberately  conversation  inevitable  behavior  introduced  Protection  the p o l i c e  policy  V a n c o u v e r . 65  [had  hand,  the intercepted  the established  had  and  the other  of  business, its  technique  use of  investigation. sary own  Above  reaction right  of  to  a l l , the  the  citizens  privacy.  regarded, consciously  2.  there  was  no  surveillance the  Bell  --  or  to  the  federal by  the  who  The  would  Court  passage  the  a  unneces-  threat  to  surveillance  as  their  had  been  a " d i r t y business".67  Protection  adequately Section  T e l e p h o n e Company of  feel  invoke  Decisions  of  statute  police.  might  electronic  unconsciously,  L e g i s l a t i o n and  Prior  disclosure  25  Canada68  of  dealing of  the  Privacy  with Act  Act,  electronic  incorporating  reads:  25. Any person who shall wilfully or maliciously i n j u r e , m o l e s t or d e s t r o y any of the l i n e s , p o s t s or o t h e r m a t e r i a l o r p r o p e r t y of the company o r i n any way w i l f u l l y o b s t r u c t or i n t e r f e r e w i t h the w o r k i n g of the said telephone lines or intercept any message t r a n s m i t t e d t h e r e o n s h a l l be g u i l t y of a misdemeanour. Though  had  not  provision  makes  the  decision  of  Adamson69  i n 1972  section the  it  unless  the  clear  wiretapping Ontario  held  by  a  the  Court  that  audio  for  of  long  time  police  illegal  Appeal  wiretapping  surveillance  whether  in  i s not creates  not,  the  Copeland  and  a v i o l a t i o n of  the  any  Re  or  this  disturbance  of  conversation.  At against The  the  been  provincial  electronic  level,  there  surveillance  except  M a n i t o b a T e l e p h o n e A c t 7 1 and  Act72  specifically  prohibited  The the  - 20  was  no  in Alberta  Alberta  and  prohibition M a n i t o b a . 70  Government  interception  -  legal  and  Telephone clandestine  recording were  of  telephone  pointed  could  out,  however,  constitutionally  officers Foil,75  in  where  obiter:  was  criminal  is  the  Act,  a  question  procedure  whether  criminal of  difficult  prosecution  criminal  of  are  see  the  of  of  in  the  Regina  of  Queen's  a  provision  of  evidence  criminal  exclusive  held, The  legislature,  of  since  v.  telephone  Bench  provincial  kind, the  enforcement  recording  how  Doubts  legislation  law  admissibility  this  within  means.73  provincial  Manitoba  statute  of  any  offences.74  tape  to  of  by  conduct  contended,  Telephone  affect  to  admissibility  "[I]t  Manitoba  as  control  investigation  conversations  can  communications  in  law  jurisdiction  of  a  and the  D o m i n i o n . "76'  In' both  the  primary  electronic  had  been  itself,  admitted  and  the  the  recorded  was  accused  the  telephone by  the  not  often to  regulations, obtained  by  introduced  to  happen,  wit,  as  the  mentioned  intercepted  adduced.  v. The  primary  engaging of  i t did  successfully  evidence,  Silvestro  conversation that  although primary  In  house  evidence  surveillance  that  case,  statutory  derivative  before,  this  sufficient  and  courts,  Canada  of  evidence  Canadian  conversation  absence  evidence  was  in  Queen,77  with  book-making, was  was  as  which  admissible  - 21  -  by  keeping  and  adduced  conversation  police  Supreme  obtained  charged  accused  the  the  Court  of  wiretapping.  In  a common  recorded  evidence. had to  been prove  betting  telephone  I t was  held  accurately the  nature,  character  and  conversation  alone  circumstances, the  premises.  enough  i t was  evidence  Further,  i t was  held  obtaining in  recording the  such In  from  evidence of  natural  The  to  intercepted  convict  some v a l u e  of  admissibility illegal  being  the  [had]  was,  court the  under  tending  case,  to  the  prove  relevance  a search  recording thus,  of  admitted,  "[was] not of  prior  on  the  basis  that  same  court  held,  i n t o f o r c e of  the  law,  i n Regina  of  and  the  no  v.  in  method  of  the  tendered  the  the that  premises voice  that This  which was  the  restricting  the  been year  obtained after  LeSarge:82  There i s not i n Canada, a p a r t from the r u l e which governs the admissibility of statements made by an accused to a person i n a u t h o r i t y , any general rule w h i c h e x c l u d e s e v i d e n c e w h i c h i s r e l e v a n t and otherwise admissible, on the ground that such evidence was i l l e g a l l y obtained. On the c o n t r a r y , the g e n e r a l r u l e i s that such evidence i s a d m i s s i b l e . S e c t i o n 178.16(1) [of the C r i m i n a l Code] c r e a t e s a l i m i t e d e x c e p t i o n to the g e n e r a l rule....83  - 22  -  a  of  i t had one  a  conviction  enactment  rule  the  installed  justice."80  to  Appeal  accused's  satisfied  of  the  of  the  was  as  "the  warrant  there  means, 81  that  of  its admissibility,  P r i v a c y Act evidence  Court  police surreptitiously  appearance  because  Ontario  affect  the  the  tape  device  though  not  executing  The  the  bugging  does  case  while  conclusion,  Protection  coming  this  by  room  cases  the  occurred  a  evidence  device  secured  [had]  of  accused.  obtained  by  the  but  evidence."79  was  not  Steinberg,78  question  of  was  of  charge.  R e g i n a v. the  atmosphere  the  3. A d v e n t The 1974  enforcement  completely  purports with  to  changed  protect  criminal  police  by  evidence  exception,  situation  the  private  of  above.  the  and  illegal  by  prohibiting of by  private excluding  interception.85  subject  As  interception to  in  legislation  also  out a scope of l a w f u l  communications  Act  The  interception  devices,84  by  of P r i v a c y  individuals  wilful  artificial  Act  Protection  privacy  obtained  of P r i v a c y  the  the  the  t h e law s e t s  of  of  sanction  communications primary  of t h e P r o t e c t i o n  strict  an  by  the  judicial  scrutiny.86  Without  any  Protection  of P r i v a c y  affected  the  surveillance  one  intelligence tying  the  electronic to  reasonable  and  the  law  the  law  acknowledged  of  the  legislation  has  toward  prohibited  of  electronic  I t i s no  ground  hand,  to  under  electronic  longer  surveillance,  the  possible  investigative to  believe  a positive  the e l e c t r o n i c  - 23 -  "strategic  intercept  to  of a p a r t i c u l a r  as  the  investigation,  notice  enchanting  other  contents  the  police  offences  the i n v e s t i g a t i o n  On  that  authorization  probable  the  ways.  virtue  to s p e c i f i c  this  of  see  the  the by  surveillance. to  assist  can  post-interception  resort  may  we of  hand,  judicial  requiring  analysis  opposite  gathering"  communications by  Act,  attitude  i n two  On  deep  that  private and  also  objects  of  f o r the method  the  by  police without  interception  offence.87  aspect  surveillance  by  to the  police,  the p o l i c e  as  a  legitimate  method  surveillance concealed  is  no  from  self-imposed  the  eyes  limitation private  result  as  was,  proclamation  period  "dirty  the  public.  on  the  part  law,  has  spawned  of  time."88  of  Peter  of  such  the  Burns  a  the  evidence  "No  Protection  of  of  Act  of  in  at  five  other  plethora  to  i t eliminated  police  stated  electronic  something  Thus,  as  this:  The  business",  communications  the  Analysis  a  investigation.  of  Professor  of  legislation  B.  criminal  longer  intercepted  short  of  Privacy  the  trial.  recent  case  the  using  years  law  be  The  after  the  piece  of  in  such  a  Act  1.Introduction The 4,  1973,  Protection  and  Criminal  came  Code89  created  new  any  up  device  a  of  scope  or  of as  also  the  codified the  IV.1,  of  an  and  was 30,  rules  electronic  1974.  "Invason  on  It  of  wilful  Privacy", of  thereof  designed At  primarily the  same  by  of  investigation.93  governing  the  surveillance.94  - 24  -  police  introduction  which private  of  and  interception criminal  the  sales  the  acoustic,  disclosure  possession,  December  amended  interception  communications.92  means  enacted  electromagnetic,  device,90  lawful a  June  wilful  component  private  communications  g a t h e r e d by  of  means  other  on  Part  communications,91  interception set  adding  by  or  intercepted of  by  effect  offences  communications mechanical  into  Privacy  of  of  the  purchase for  the  time,  it  private The  law  evidence  This effort  of  structure  the  conflicting  of  Parliament  social  ever-increasing individuals'  to  Iannuzzi  "The  prohibiting  interception  appropriate  the  The  of  first,  of  adding  liability  of  the  Crown  to  or  or  foreign  to  Part in  It  electronic  detection  detrimental  intelligence  of to  thus  1.1  Zuber  in  J.A. has  two by  evidence  second  objective,  need  allow  to  controls,  investigation  also  of  the to  serious  amended  the  Crown  provided  for  civil  circumstances  to  where or  amended  surveillance  the be  or  Official  carried  essential  for  a  private  disclosed  activities  security,  information  of  communications  the  intercepted  the  from  protection  clearly  The  which  subversive  two  obtained."96  Act  also  balance society  specific  the  deliberate  inadmissible  to  Privacy  by  private  recognize  in  the  law  render  to  the  the  statute.  unlawfully  employees.98  prevention Canada  is  permit  to  evidence  by  and  protect  the  of  explained  subject  Act97  communication  As  communications  Protection  framework  crimes;  was  Liability  Act99  protection  and  t o adduce t h e  government  the  to  authorities, private  c r i m e , and  up  (No.6),95  was  violation  balances  intercept  first  a  reflects a  set  privacy.  objectives.  which  legislation  sophisticated  right  in  to  interests;  R e g i n a v. W e l s h and  obtained  the  out  directed the  to  the  by  Secrets for  the  against  gathering  of  security  of  Canada.100  This a  method  of  study  criminal  will  focus  on  the  investigation  - 25  by  -  electronic the  surveillance  police,  and  as  therefore  will and  exclusively  deal  i t s subsequent  with  t h e new P a r t  amendments  IV.1 o f t h e C r i m i n a l  i n 1977,101  1983,102  Code  1984103 and  1985.104  2.  General  The  Outline  components  of  of the P r o t e c t i o n Part  amended t o d a t e have b e e n b r i e f l y  IV. 1  of  described  of Privacy Act  the Criminal  Code  as  as f o l l o w s :  (a) the d e f i n i t i o n section, section 178.1, which defines t h e p r i n c i p a l words and p h r a s e s u s e d i n P a r t IV. I and by s u c h d e f i n i t i o n s , d e l i m i t s t h e s c o p e o f t h e Part; (b) the o f f e n c e - c r e a t i n g sections, sections 178.11, 178.18 and 178.20, w h i c h n o t o n l y create three new indictable offences, but a l s o provide f o r exemptions from t h e l i a b i l i t y thus c r e a t e d ; (c) the p r o c e d u r a l s e c t i o n s , s e c t i o n s 178.12 t o 178.15, inclusive, which define the p r o c e d u r a l steps t o be followed to obtain judicial authorization both to i n i t i a t e and t o c o n t i n u e e l e c t r o n i c s u r v e i l l a n c e ; (d) t h e e v i d e n t i a r y r u l e s e c t i o n s , s e c t i o n s 178.15(3); ( 5 ) , 178.16 and 178.17, w h i c h e n a c t a c o m p l e t e code o f evidentiary rules both i n respect of evidence of intercepted private communications and evidence obtained directly or indirectly as result of i n f o r m a t i o n a c q u i r e d by means o f s u c h i n t e r c e p t i o n s ; (e) the a d d i t i o n a l penalty sections, sections 178.19 and 178.21 w h i c h p e r m i t o r d e r s o f f o r f e i t u r e and awards of p u n i t i v e damages t o be made i n a d d i t i o n t o o t h e r p e n a l t i e s provided f o r i n respect of contraventions of the o f f e n c e - c r e a t i n g s e c t i o n s o f t h e e n a c t m e n t ; and, ( f ) t h e r e p o r t i n g s e c t i o n s , s e c t i o n s 178.22 and 178.23, w h i c h demand t h a t n o t i c e be g i v e n t o the o b j e c t s of interceptions carried out in accordance with authorizations and further that yearly public disclosure of the extent of court-ordered electronic surveillance activities be made by the political f u n c t i o n a r y u n d e r whose a u s p i c e s s u c h s u r v e i l l a n c e was conducted.105  From by  the p o l i c e ,  the standpoint a general  of c r i m i n a l  outline  -  investigation  o f t h e law may  26 -  performed  be g i v e n  i n the  following 1.  way:  The p o l i c e  suspects  can l a w f u l l y  only  recipient  when  thereof  superior  court  2.  offences  The  obtained by 3.  judge  writing  by  a designated  4.  a.  other  serious  an  intended  authorization  the a u t h o r i z a t i o n  offences  by  a  offence,  to a Criminal  by  a  c a n be  committed  section.107  i s ex p a r t e  of the p r o v i n c i a l  federal  or those  i n the d e f i n i t i o n  i f pertaining  agent  may be g i v e n  i s made  affidavit,  administration  following  when  or  of the  and must be  Code  offence,  Attorney  General,  designated  agent  or i f of the  G e n e r a l o f Canada.108  application  the  or  communcations  originator  f o r the a u t h o r i z a t i o n  An a u t h o r i z a t i o n  officer's  the  o f which  t o those  and s i g n e d ,  to a  private  i s obtained.106  c r i m e as d e s c r i b e d  in  pertaining  of  i n respect  An a p p l i c a t i o n  Solicitor  consent  i s obtained,  are l i m i t e d  organized  intercept  conditions  only  when t h e j u d g e  is satisfied,  on  the b a s i s  that  be  i n the best  of  i t would  justice  to  do  so,109  t o whom t h e  of  the  police  i n t e r e s t s of  and  one  of the  has been met;  investigative  procedures  have  been  tried  and  have  failed. b.  other  i n v e s t i g a t i v e procedures are u n l i k e l y t o succeed.  c.  the urgency  to  carry  a.  that  i t would  of the o f f e n c e  be  using  impractical only  other  procedures.110  An a u t h o r i z a t i o n state  i s such  out the i n v e s t i g a t i o n  investigative 5.  of the matter  should;  the offence  i n respect  of which  may be i n t e r c e p t e d , 1 1 1  -  27 -  private  communications  b.  state  the  type  of  private  communication  that  may  be  intercepted,112 c.  state  the  identity  communications d.  are  generally  t o be  describe,  c o m m u n i c a t i o n s may e.  of  generally  be  the  persons,  if  known,  whose  private  which  private  intercepted,113 if  possible,  the  place  at  intercepted,114  describe  the  manner  of  interception  that  may  be  used,115 f.  set  forth  the  period  of  validity,  not  exceeding  sixty  days.116 In  addition,  he  considers  6.  An  ex  parte  In  going  advisable  case  of  through  or  8.  ex  the  9.  A  terms  and  conditions  as  interest.117  to  renewal  renewal  for  a period  shall  from not  authorization  time  be  to  for  as  designated Attorney  an  of  the  o f up  to  Crown's  be  time  a  given  inadmissible,  as  on  period  lawful  However,  in  order  to  be  intention  unless  - 28  by the  -  t h i s case,  a  General  of  case  may  which  may  be, only  interception for  received  accompanied  to  without  hours.119  by  secured  the  authorization  thirty-six  given  In  Solicitor  secured  t o be  communication  the  General,  communication  c o m m u n i c a t i o n has private  by  emergency  evidence.120  private  may  a p p l i c a t i o n procedure.  communication  notice  prima f a c i e  an  provincial  private  intercepted  of  A  such  public  subject  regular  parte  for  admissible  prior  is  specially  the  apply  A  i n the  emergency, the  Canada  given  include  s i x t y days.118  officer  be  may  application.  police  can  judge  authorization  exceeding 7.  the  the  the in  by  is  lawfully evidence,  the  details  accused.121  unlawful  interception  originator  or  is  intended  recipient  has  However, admit  this  such  is  of  10.  to  evidence  where  a  justice  a  where  introduction  d i s c r e t i o n of  the  evidence  i n t e r c e p t i o n was  evidence  is  subject  to  its  due  in  the  is  evidence.122  trial  judge  relevant  only  to  to  and  the  of  form  a defect  i n procedure.123  Derivative  surveillance  of  the  irregularity  to  subject  evidence  unlawfulness or  consented  prima  secured  facie  discretion the  into  reason  admissible.124  of  admission  disrepute  by  the of  on  trial  i t would  account  of  of  electronic  However,  judge bring the  to  this  is  exclude  the  such  administration  unlawfulness  of  the  interception.125 11.  The  person  surveillance the the  fact  who  pursuant  of  the  upon  may  be  was  the  to  communication  3.  the  do  "private offence  authorization  a  of is  the  to  days  the  period  be  of  terminated.126  longer  at  the  ninety  This  of  up  notice  period.128 of  the  electronic notified  the  to  pre-authorization  admissibility  Scope of seen package  communications". police  of  object  date  of  when  ninety  day  three  years  stagel27  or  notice  is  This  intercepted  private  i n evidence.129  As legislation  for  either  expiry  irrelevant  the  lawfully  replaced  application,  before  to  the  interception within  interception  period  became  not  If  fall  the  above,  by  the  regulating the  the  Privacy  Protection the  Act  of  Privacy  "interception"  i n v e s t i g a t i v e measures  within  communications", created  P r o t e c t i o n of  the  meaning  it  will  law  nor  - 29  be  of  the  -  of  is  a  "private  conducted  by  the  " i n t e r c e p t i o n " of  neither  regulated  Act  prohibited by  its  as  an  evidential  rules.  Therefore  Protection meaning  for  the  of P r i v a c y A c t ,  of  the  two  purpose  of  it  essential  key  is  words;  finding  the to  private  scope find  of  the  out  the  communication  and  interception.  a. Meaning (i)  General  Section communication"  the  originator  private  by  any  to  be  a  such the  as  must  one. be  objectively "the  means or  prevent  being  with  which  it  techniques,  reasonable  will  not  be  by  the  criterion  of  intended  the  subjective  and  subjective expectation  other  a l l the content  if  that  is essential  the  is  person  tele-  and  hand the  f o r the  the  and  purpose  transmitted, any,  of p r i v a c y  communication  expectation  reasonableness  circumstances of  taken the  and  the  by  the  employed  partly  of  i s to  into  the be  account  communication, nature  of  originator  the to  overheard."131  (ii) It  the  reasonable,  location,  by  means,  On  it  "private  any  i t is  that  the  partly  the o r i g i n a t o r  private  originator judged  of  expect than  or  i n which  suggests  is  hand  defines  it."  wording  communication  part  to  other  Code  communication  circumstances  to r e c e i v e  one  Criminal  oral  thereof  above  On  the  "any  person  thereof  objective.130 the  of  made under  The  on  178.1  originator  intercepted  Communication  Definition  as;  communication for  of P r i v a t e  S u s p i c i o n of the O r i g i n a t o r  should  be  noted  that  even  - 30 -  i f the  originator  of  the  communication intercepted by  the  by  law  privacy  suspects  as  is  a  third  a  that party,  "private  justified  the his  communication  communication  c o m m u n i c a t i o n " where  i n the  light  of  a l l the  the  accused  can  might be  be  protected  h i s e x p e c t a t i o n of relevant facts  and  circumstances.  In otherwise police by  Regina  empty  officer  them  v. Watson,132  cell  block  secretly  listened  to  conversation  that  cell  block  placed  their  monitored the  with in  a  related  cell  be  that  the  "bugged".  placed suspect,  between  those  The  contents  conversation.  indicated  might  another  was  accused It  was  was  held  in  an  and  a  occupied of  the  suspicious by  Mossop  Co.Ct.J: The c o n v e r s a t i o n i t s e l f i n d i c a t e s t h a t t h e y were aware of t h e d a n g e r t h a t t h e c e l l b l o c k m i g h t be "bugged" and w h i l e t h e y may have e x e r c i s e d more c a u t i o n h a v i n g regard to t h i s possibility, the v e r y n a t u r e of the c o n v e r s a t i o n suggests that t h e y d i d not e x p e c t , nor was i t reasonable f o r them to expect, that their c o n v e r s a t i o n would be o v e r h e a r d . I t b e i n g a d m i t t e d by the p o l i c e witnesses that the remaining five cells were u n o c c u p i e d , I t h i n k i t might be i n f e r r e d t h a t t h e accused and M a r t i n had r e a s o n a b l e g r o u n d s t o b e l i e v e t h e y were a l o n e i n t h e a b s e n c e of a sound f r o m any of the o t h e r c e l l s . So I t h i n k i t was reasonable f o r them t o e x p e c t t h a t t h e i r c o m m u n i c a t i o n would not be i n t e r c e p t e d and t h a t t h e c o n v e r s a t i o n t h e r e f o r e f a l l s within the statutory definition of a "private communication".133  effect  On  the  other  that  the  suspicion  originator of  the  Regina  hand,  there  of  a u t o m a t i c a l l y takes  Protection  are  number  interception  on  h i s communication  of P r i v a c y A c t . 1 3 4  v. Samson e t a l . 1 3 5  a  held  For  in obiter:  - 31  -  of  cases  to  the  the  part  of  the  out  of  example,  the  Brooke  ambit  J.A.  in  ...I think there is a serious question as to whether or not the communications of the respondent Samson tendered in evidence were private communications w i t h i n the meaning o f s. 178.1 T h e r e was e v i d e n c e on a v o i r d i r e o f a s t a t e m e n t o f the r e s p o n d e n t Samson w h i c h was c l e a r l y t o the e f f e c t t h a t he knew t h a t t h e r e was a r e a l danger t h a t the t e l e p h o n e l i n e s would be the s u b j e c t of an authorization to intercept a private communication. In the circumstances, I question that i t could properly be said that t h e s e c o m m u n i c a t i o n s were made under circumstances in which it was r e a s o n a b l e f o r Samson as the o r i g i n a t o r t o e x p e c t t h a t t h e y would not be i n t e r c e p t e d by any person other than the p e r s o n whom he intended should receive it.136  The clearly Act,  against  namely,  privacy. criminal least the  fallacy  In  the  main  the  this  kind  of  reasoning  objective  of  the  protection  these  days,  activities  to  of  such  as  extent,  police.137  I f the  above  their  lines  intercept  Therefore Watson,  supra,  that  the  is  the  Canadians  some  freely  of  drug  that  Protection  who  involved  trafficking  normally  telephones  reasoning outside  approach  of  might  is correct, the  taken  in  of  individual's are  their  essential  is  to  serious  suspect,  at  tapped  by  be  police  can  Co.Ct.J.  in  protection  of  law.  by  light  is  Privacy  right in  the  it  Mossop  of  the  privacy.  originator will  be  (iii)  Knowledge of  the  Cases  are  unanimous  of  the  almost  communication  intercepted  by  a  third  Originator  "knows" party,  communication".138  - 32  in  -  holding that it  his is  not  that  if  the  communication a  "private  When expectation s e n s e the  he  of  knows  privacy  orignator's  (iv)  "consents"  on  to  that  communication  in  The  Goldman v.  telephone the into the  and  evidence.  will  settled  be  on  one  and  Dwyer,  Dwyer had  conversations.  law his  in  In  of  this  a  a  face-to-face  a  police  J.  held  the  case by  a  he  be In  no this  third  recordings  for  is  not  point of  were  both  a  between  introduced  p o l i c e i n t e r c e p t i o n of the  majority  of  P r i o r t o t h e t e l e p h o n e c a l l and the m e e t i n g w i t h the a p p e l l a n t , Dwyer had s i g n e d a f o r m o f c o n s e n t t o the i n t e r c e p t i o n of h i s c o n v e r s a t i o n s w i t h t h e a p p e l l a n t . • • •  ...[I]t was abundantly clear that, during both the telephone conversation and the personal conversation w h i c h f o l l o w e d , Dwyer was f u l l y aware t h a t the p o l i c e were intercepting and recording the words spoken. Dwyer then had no reasonable expectation that the c o n v e r s a t i o n s would n o t be i n t e r c e p t e d . • • •  I t w i l l be o b s e r v e d a t once t h a t u n d e r the definition o f " p r i v a t e c o m m u n i c a t i o n " i t i s the o r i g i n a t o r ' s s t a t e of mind t h a t i s d e c i s i v e . I t f o l l o w s , i n my opinion, that if Dwyer was the sole originator of the communications they were not private communications within the meaning of the Act. They would not be subject to the terms of Part IV.1 of the Criminal Code.140  -  The clear  court:  - 33  a  knows  party.  conversation  informant, the  originator  clearly  i t , made t h i s  case,  to  when  communication  such  face  consented  Mclntyre  originator.  that  intercepted  the  Queen.139  the  can  Originator  because  Canada,  conversation  accused  of  there  is decisive.  interception,  communication",  of  interception,  part  the  i t i s now  the  Supreme C o u r t  the  of  "private the  the  s t a t e of mind  Consent  Further  of  the  However, the  plain  Code.  wording  As  i t should of  Subsection  Professor  178.11(2)(a),  dealing  be n o t e d  Peter with  a "private  communication",  to  s u c h an i n t e r c e p t i o n . 1 4 1  this  178.11(2)(a)  Burns  view of  pointed  one c l a s s  of  that  the  out,  of u n p r o h i b i t e d  envisages  is  Criminal  Subsection interception  an o r i g i n a t o r  The s u b s e c t i o n  against  consenting  reads:  (2) S u b s e c t i o n ( 1 ) does n o t a p p l y t o (a) a p e r s o n who has t h e c o n s e n t t o i n t e r c e p t , e x p r e s s or implied, of the originator of the private communication or of the person intended by t h e originator thereof to receive i t ; Moreover,  the  authoritative Code, the  which  acknowledges  originator  for  of  supra,  of S e c t i o n  Court  also  Section  of l a w f u l  In Goldman,  Brooke  the Ontario  of  is  J.A.  contrary  178.16  the i n t e r c e p t i o n  as one c l a s s  interpretation  judgment  reasoning  interpretation  communication". the  above  made  He  the  with  interception  Mclntyre  178.16.  of  i n R e g i n a v. C r e m a s c o l i  the  Criminal  consent  of a  J . also  quoted  to  "private  dealt  the  of  with  following  and Goldmanl42  of Appeal:  Section 178.16 provides f o r the a d m i s s i b i l i t y in e v i d e n c e o f an i n t e r c e p t i o n o f a p r i v a t e communication i n two c i r c u m s t a n c e s . The e v i d e n c e o f t h e i n t e r c e p t i o n is admissible, f i r s t , i f t h e i n t e r c e p t i o n was l a w f u l l y made and, s e c o n d , e v i d e n c e o f a l l o t h e r interceptions is admissible with the consent specified in s.178.16(1)(b). An i n t e r c e p t i o n o f a p r i v a t e communication i s lawfully made i f one o f t h e p a r t i e s t o i t consented to the interception.145 [emphasis Then M c l n t y r e  added] J . proceeded:  I am in full agreement with Brooke, J.A., i n h i s comments above q u o t e d .... S e c t i o n 178.11(1) makes i t an indictable offence to intercept a private - 34 -  c o m m u n i c a t i o n by means o f t h e d e v i c e s d e s c r i b e d and i n s-s.(2) p r o v i d e s that s - s . ( l ) which created the offence w i l l n o t a p p l y t o a p e r s o n who has t h e c o n s e n t , e x p r e s s or implied, of the originator of the private communication or of the person intended t o r e c e i v e i t . This consent i s a consent to interception and i t s e f f e c t i s t o p r e s e r v e from i l l e g a l i t y , i n o t h e r words, to render lawful, an interception of a private c o m m u n i c a t i o n made w i t h c o n s e n t . I t i s important to n o t e as w e l l t h a t t h e c o n s e n t may be e x p r e s s o r i m p l i e d and may be given by e i t h e r the o r i g i n a t o r of the p r i v a t e communication or the intended recipient.144 [emphasis These  added]  statements  the  of Mclntyre  originator  communication lawful  is  a  judgment resolved  by  virtue  (hereinafter definition definition  that  referred of  Court  the  "private  i n Section  the  The  interception  of  even  when  interception  his  here  contradiction  Canada  i n Goldman  interpretation  originator  to  that  to  manifest  of a proper by  suggest  is a  communication".  this  t h e Supreme  intended  one:  of a " p r i v a t e  think  of  consented  private  interception  I  person  has  J. clearly  as  communication".  178.1 o f t h e C r i m i n a l  should  to  receive  recipient") I  the be  o f t h e words " t h e  thereof  "intended  in  again  i t "  in  the  quote  the  Code:  " p r i v a t e c o m m u n i c a t i o n " means any o r a l c o m m u n i c a t i o n o r any t e l e c o m m u n i c a t i o n made under c i r c u m s t a n c e s i n w h i c h i t i s reasonable f o r the o r i g i n a t o r thereof to expect that i t will n o t be i n t e r c e p t e d by any p e r s o n o t h e r t h a n t h e p e r s o n i n t e n d e d by the o r i g i n a t o r t h e r e o f t o receive i t ; In the  my  opinion,  when t h e o r i g i n a t o r  interception  positively  and  accepts  the  therefore  not  fact  a  listen  t o h i s communication,  within  the category  of  of a communication  that then  "intended  merely  specific  the  third  recipient".  - 35 -  knows third party  consents to but  also  party  will  should  fall  (The p o i n t  of  my  argument  i s to create  party"  and  communication a  private  because third  intercepted  with  Goldman,  to  follows  originator  "third  that  of the o r i g i n a t o r  of thought  resolving  e.g.,  one  is  makes  listening  protected  the  has  conversation  telephone.145 is  to both  would  be  apparently  the  is still sensible,  intends  the  to h i s communication.  of a  h i s wife  privacy  the  interpretation  parties  acquaintance;  train  belonging It  consent  This  case  addition  this  extension  a  to l i s t e n  In  while  recipient".)  such  party  of persons  "intended  communication. in  Assume  a class  If  under  another give  a  above  contradiction  practical  the consent  telephone  to  i t with  their  my  argument  is  Part  IV.1  of  advantage.  to a s p e c i f i c  call  to  in  his friend  consent  on  an  accepted,  their  the  Criminal  Code;  the  originator  otherwise not.  (v)  Originator  Since communication private  the  state  i s a decisive  communication  originator  of Communication  is  or  of  mind  factor not,  essential  in  of  i n determining the  question  considering  whether of  the  of  i t is a  who  is  scope  the  of  the  by  the  legislation.  This Supreme  Court  decision, series  issue  o f Canada  the o r i g i n a t o r  of r e m a r k s .  component  was  A  also  authoritatively  i n Goldman,  supra.146  i s the person  "conversation"  "communications",  and  the  - 36 -  who  settled According  makes  i s divided originator  t o the  t h e remark or  into  a s e r i e s of  flips  back  and  forth the  depending  upon  whose  lips  a r e moving  a t any moment  during  conversation.147  b.  Meaning  Section term  of  Interception  178.1 o f t h e C r i m i n a l  Code  broadly  defined  the  " i n t e r c e p t i o n " as f o l l o w s : "intercept" includes listen t o , record or acquire a communication or acquire the substance, meaning or purport thereof,  H e r e , two q u e s t i o n s 1.  Can t h e r e  be  arise:  an i n t e r c e p t i o n  without  interference  by a  third  party? 2. Can  there  be  electromagnetic,  (i)  acoustic,  to  This  McQueen.148  the  In t h i s  gaming-house  several  telephone  held  f o r the A l b e r t a  between  case,  the  communication.  above, dealt  between  into  "intercept",  with  an  a  R e g i n a v.  f o r keeping  police  officer  a  and  house d u r i n g  evidence.  the  McDermid J.A.  r e f e r r i n g to the d i c t i o n a r y that  and t h e p l a c e of Privacy  - 37 -  in  are  i n book-making, and  there  o f any i n t e r f e r e n c e  Protection  of  authorities  was c h a r g e d  engaging  of Appeal,  of o r i g i n The  device?  initially  i n the absence  the p l a c e  or other  c a l l e d to the b e t t i n g  Court  use  Party  introduced  word  the  the accused  who  were  without  question  conversations  by t h e p o l i c e  interception  was  customers  of  of Third  and u n l a w f u l l y  raid  definition  mechanical  first  issue  common  unidentified  interception  Requirement  As divided.  an  had  by a t h i r d  of d e s t i n a t i o n Act  been  is  no  party of t h e  aimed  at  preventing  a  communication apply  involved  even  to  view  located RCMP  RCMP o f f i c e r s  receiver  Criminal recording  be g i v e n  a r e ready  In  a number  as  calls  i n McQueen,150  practical  needs  has  to  are  disguise  case,  to c a l l .  an  the c a l l  to  the  recipient"  where actual  an  or  i n the  178.1 o f t h e answering  and  "interception",  party.  pays  little  A c t which little  was  occasions  attention accurately  attention  investigation.  his identity.  - 38 -  i n the  that  of  officers'  i n Bengert  numerous  inquire  A t t h e number,  i n Section  by a t h i r d  police  to  The  of h i s "impersonation  amounted  pays  took the  cocaine.  I t was h e l d  "intended  of Privacy  how-  A i r Canada  calling  to the i d e n t i t y  and a l s o  of everyday  Court  to contain  the p o l i c e  the r u l i n g  explained  Supreme  and r e c o r d  because be  t h e aim of t h e P r o t e c t i o n  officer  people  as t o t h e i d e n t i t y o f  anyone  communication"  telephone  there  two  Code  e t a l . (no.2),149  o f A i r Canada.  Therefore  my v i e w ,  found that  was no i n t e r f e r e n c e  investigations  only  In t h i s  t o answer  cannot  "private  the  though t h e r e  to  A i r Canada  the r e c e i v e r  Code.  are  Columbia  was  i s mistaken  of  private  of the C r i m i n a l  i s mistaken  decided.  o f the communication  definition  there  v: B e n g e r t , R o b e r t s o n  o f an employee  originator  fraud",  where  bag w h i c h  with  178.16  a  communication.  t h e bag s h o u l d  disguise  case  McQueen was w r o n g l y  a missing  intercepting  Section  J . f o r the B r i t i s h  arranged  about  the  Regina  Berger that  from  i f the o r i g i n a t o r  In  the  the  r e c i p i e n t of h i s  ever,  party  and t h e r e f o r e  doesn't  the  third  In  where  Assume  a  t o the criminal  a  police  kidnapper  secretly child. and  and  repeatedly  If t h i s  records  ruling  calls  i s correct,  the kidnapper's  parent  this  under  Section  investigative  would  make  178.11  call  parents  when  of  a police  the  of the C r i m i n a l  turns  out  Code.  answers  of the c h i l d ' s  to  be  Moreover  o f an u n d e r c o v e r  kidnapped  officer  i n the d i s g u i s e  activity  a l l the r e c o r d i n g s  conversation  the  a  offence  this  ruling  police  officer's  illegal.  Naturally, Bengert.151  In  recent  Regina  cases  are  refusing  v. N e w a l l e t a l (No.1)152  C o l u m b i a Supreme C o u r t h e l d ,  to  follow  the  British  p e r Bouck J . :  R. v. B e n g e r t , supra, holds that if Hughes was representing himself as a d r u g dealer when he was a c t u a l l y a p o l i c e u n d e r c o v e r a g e n t , t h e n he was n o t t h e "the person intended" by E r v e n to r e c e i v e the o r a l communication. With respect I have some difficulty reading that i n t e r p r e t a t i o n i n t o the l e g i s l a t i o n . Parliament does n o t s a y t h e o r i g i n a t o r must know t h e i d e n t i t y o f the r e c e i v e r b e f o r e the i n t e r c e p t i o n of the communication i s admissible on t h e c o n s e n t of the receiver. What t h e s t a t u t e means t o p r o t e c t i s the a d m i s s i o n o f i n t e r c e p t i o n s on t h e c o n s e n t o f a t h i r d p e r s o n o r e a v e s d r o p p e r who i s n e i t h e r t h e o r i g i n a t o r nor the person intended t o r e c e i v e the c a l l from the originator.153  (i i) The private  the  concerning the  words  next  an  o f Use o f A r t i f i c i a l  question  communication  constitutes of  Requirement  i s whether  through  the  or  medium  not of  " i n t e r c e p t i o n " f o r the purpose  Criminal  Code,  electronic "by means  which  regulates  surveillance.  This  o f an e l e c t r o m a g n e t i c ,  - 39 -  Device listening the  naked  of Section  the issue  arises  a  ear  178.16  evidential  acoustic,  to  rule  because  mechanical  or  other  not  device"  adopted  of  i n the o f f e n c e - c r e a t i n g  i n Section  In Court  used  that  Section  communication  i s merely  aid  electromagnetic,  of  any  device.  There  device.  This  i s no view  has  and  Protection  of P r i v a c y Act  artificial  seems  right  4. L a w f u l Once the  scope  seen the law  above,  of  J.A. h e l d  178.16  overheard  been  to  to  surveying  Dubin  by  doesn't a  third  acoustic,  supported  be  a  was  devices  using  by  natural  which  apply party  the  the  without  the  or  any  artificial of  since  protect  been  p r o d u c e d by modern  other  majority  to  had  Ontario  where  conclusion  designed  privacy  f o r the  mechanical  " i n t e r c e p t i o n " without  cases,155  individual's  178.11 a r e  178.16.  R e g i n a v. B e c k n e r l 5 4  Appeal  section  IV.1 o f t h e C r i m i n a l  surveillance  itself  acknowledges  by  technology.156  Electronic Surveillance  " i n t e r c e p t i o n " of  Part  .the the  endangered  e l e c t r o n i c s u r v e i l l a n c e by t h e p o l i c e f a l l s an  the  two  and  "private Code  the evidence  categories  communications"  i s applicable obtained  of  within  to both  thereby.  legitimate  as  The  electronic  s u r v e i l l a n c e by t h e p o l i c e : 1.  electronic  surveillance  with  consent  of  a  party  of  private  communications;157 2.  electronic  surveillance  in  accordance  with  a  judicial  authorization.158 In  order  f o r the i n t e r c e p t e d  communications  - 40 -  t o be  introduced  into  evidence  at  general  trial,  the  electronic  r u l e , must f a l l  a.  within  Electronic ruled  supra,160  an  interception  is  when p r i o r  the of  by  consent the  1. 2. the 3.  do  the  to  so,  of  Supreme by  the  the  the  with  express  or  two  of  of  interception  the  police,  categories.  as  a  159  Consent  Court  police  by  private  the  implied,  Canada  Goldman,  communications  police  from  in  have  one  of  obtained  the  parties  communications.  the  into  to  either  Surveillance  As  lawful  by  survillance  It  seems  police  of  three  that their  other  consent  to  communications  the can  interception be  classified  officer,161  informant  police  private  who  categories;  undercover p o l i c e police  persons  are  who  himself  is  involved  in  the  crime  which  investigating,  persons  who  are  somewhat  related  to  the  crime,  such  as  victims. Several  legal  consenting  issues  party belongs  Where officer,  the  his  status.  true  mistaken contended Bengert, "intended  arise  other  belief at  the  upon w h i c h c a t e g o r i e s  party  is  parties  who  communicate  Therefore  the  legal  as  to  162  recipient"  the  intended  According an  the  to.  consenting  trial.  supra,  depending  to  of  - 41  undercover  with  effect  of  recipient's the  undercover  because  an  reasoning  police  his  -  him the  do  police not  know  originator's  i d e n t i t y might of  officer  impersonation,  Berger cannot and  be  J.  in  be  an  thus  his  consent result  cannot would  before.  render  be  an  clearly  In  Regina  admissibility United  of  Bouck  follow  Bengert,  identity  of  status  given  by  inspite  the  category  obtain  a  issued  by  be  178.18  of  1985,165 without of  the  third a  other  above  seen the  between  accused  and  not  the  officer Court  change  the  was  refused  mistake  as  the  Therefore,  makes  where  from  licence  to  in to the  officer's  the  consent  interception  however,  by  i t had  lawful  of  Code.  those  to  the  possession  f o r the  their or  to  acting  device  they  o f f e n c e under  possession  might  Section  amendment of  under  of  l e t them  the  that  Code  third  purpose  of  so  Criminal  lawful  persons  second  pack" f o r the  Canada, 164  The  wanted  been n e c e s s a r y  the  liability  acknowledged  licence  police  belonging  for  General  criminal Criminal  the  t o wear a "body  conversations,  Solicitor  the  the  does  as  where  originator's  officer  sense,  this  (No.1),163  Supreme  recipient.  cooperators  temporary  exempted  common  undercover  Columbia  officer  recently,  their  the  et a l .  the  intended  mentioned  monitoring  the  However,  impersonation.  Until or  that  undercover  of h i s  informants  British  held  an  lawful.  conversations  undercover  as  to  enforcement  J . f o r the  the  legal  v. N e w a l l  drug  and  interception  contrary  recorded  States  issue,  the  the  in  device  the  direction  the  first  or  usually  be  police.166  Where  the  category,  the  genuine  category,  one.  consenting consent  given  However, where  namely,  the  party  the  informant  - 42  to  belongs the  police  consentor who  -  to  would  belongs  himself  takes  to  the  part  second in  the  crime the by  which  the p o l i c e  informant  barters  the p o l i c e  nature  of  contended this  consent immunity  consent  at t r i a l .  i s given from  Court  s u p r a ,167 of  promised  for  reasons  a c t of the consentor  which  even  ruled or  doing  that  selfish  or  reprehensible.  majority  o f t h e c o u r t as f o l l o w s :  expected  treatment  he  had  i f the  leniency as i t  intends  H i s consent to consent J.  been  discussed  even  so l o n g  what  h i s motive Mclntyre  also  that  i s valid  that  Therefore, the  178.11(2)(a)  he c o n s i d e r s s u f f i c i e n t .  notwithstanding  happens  for lenient  o f Canada  and  p r o s e c u t i o n the consent  conscious  vitiated  i n return  Subsection  The Supreme  because  i t often  of h i s a c c o m p l i c e .  under  i n Goldman,  the  be  h i s privacy  a t t h e expense  the  issue  are i n v e s t i g a t i n g ,  stated  is  t o do  w i l l not may  be  f o r the  The consent given under s. 178.11(2)(a) must be v o l u n t a r y i n t h e s e n s e t h a t i t i s f r e e from c o e r c i o n . I t must be made k n o w i n g l y i n t h a t t h e c o n s e n t o r must be aware o f what he i s d o i n g and aware o f t h e s i g n i f i c a n c e of h i s a c t and t h e u s e w h i c h t h e p o l i c e may be a b l e t o make of the consent. The t e s t t o be a p p l i e d i n considering the admissibility of a statement or c o n f e s s i o n made by an a c c u s e d person i n custody to p o l i c e o f f i c e r s or o t h e r s i n a p o s i t i o n of a u t h o r i t y i s not a p p l i c a b l e here. • • •  If t h e c o n s e n t he g i v e s i s t h e one he i n t e n d e d t o g i v e and i f he g i v e s i t as a r e s u l t o f h i s own d e c i s i o n and not under e x t e r n a l c o e r c i o n t h e f a c t t h a t h i s m o t i v e s for so d o i n g are s e l f i s h and even r e p r e h e n s i b l e by c e r t a i n s t a n d a r d s w i l l not v i t i a t e i t . • • •  The consent must n o t be procured by intimidating conduct o r by f o r c e o r by t h r e a t s o f f o r c e by t h e p o l i c e , b u t c o e r c i o n i n t h e sense i n w h i c h t h e word a p p l i e s h e r e does n o t a r i s e m e r e l y b e c a u s e t h e c o n s e n t i s g i v e n because of promised or expected l e n i e n c y or immunity from p r o s e c u t i o n . 1 6 8  - 43 -  or  b.  E l e c t r o n i c S u r v e i l l a n c e with J u d i c i a l  Where  it  consent  to  parties  thereof,  the  ordinary  2.  for  private  police  f o r two  must  the  types  of  police  to  obtain  communication  from  seek  authorization  judicial  surveillance.  authorization  Part  judicial  granted  IV.1  of  one  of  the  the the for  Criminal  authorization:  for  a  period  not  exceeding  period  not  exceeding  days,169  emergency  thirty-six  judicial the  the  a  electronic  Code p r o v i d e d  sixty  impossible  intercept  intended  1.  is  Authorization  authorization  (i)  Ordinary  The  law  are of  activity  a  Authorization  limits  authorization  surveillance  either  for  hours.170  definition  police  granted  can  section  without  the be  178.1  consent  investigating a  serious  planned  or  crimes  in  obtained of  the  can  to  those  Criminal  be  these  respect  character  or  "part  organized  by  a  of  number  a  provided  Code.  performed  definition  of  which  a  for  by  Electronic  only  where  the  offences  which  are  pattern  of  of  persons  criminal acting  in  ex  concert."171  An parte  and  in writing  jurisdiction Code  application  or  a  to  judge  for a  as  an  judge  authorization of  defined  a  superior  in Section  by:  1.  the  Solicitor  2.  the  Attorney  General General  of of  Canada,172 the  province,173  - 44  -  must  be  made  court  of  criminal  the  Criminal  482  of  3.  an  agent  General  specially  o f Canada  is  one i n r e s p e c t  at  the instance  on b e h a l f 4.  an  of  offence To  the  agent  where  the p o l i c e  application.176 Code  the  suspect,  both  is  need  federal  the of  Attorney  any  other  offences  s t a t u t e s , they General  the  other  than  shall  apply  of the p r o v i n c e ,  an a u t h o r i z a t i o n f o r t h e p u r p o s e o f  statute  offences  the  police  and a f e d e r a l  they  Code  the S o l i c i t o r  have  they  General are  shall  apply  o f Canada  investigating  statute offence  t o seek  of  the  the a p p l i c a t i o n Solicitor  of the p r o v i n c e ,  made  by  a  police  judge  who  grant  or refuse  contained officer  by o r  to  for  the  both  a  i n respect of  two  separate  authorizations  itself  i s made  i n t h e name o f  offences respectively.177  agent  General  instituted  an a u t h o r i z a t i o n f o r  by t h e A t t o r n e y  by  offence  Although an  by  i n respect  need  Criminal  other  Where  Criminal  for  investigation  and c o n d u c t e d  i n writing  personally,  the f e d e r a l  designated  same  under  Solicitor  o f Canada,174 o r  the p o l i c e  designated  investigating  the  province.175  to violate  where  by  i f any, may be  o f Canada  designated  investigating  the agent  while  General  province  be p r a c t i c a l ,  conspiracies  i f the o f f e n c e  o f t h e Government  the  of  i n writing  of which p r o c e e d i n g s ,  specially  i n that  purpose  to  personally,  of the Attorney  agent  General  designated  receives  in  General  the m a t e r i a l  officer the  of  supporting  i n t h e form  application  Canada  or  the  the a p p l i c a t i o n  of a f f i d a v i t ,  decides  Attorney  whether  he  and t h e should  t h e a u t h o r i z a t i o n on t h e b a s i s o f t h e i n f o r m a t i o n  the  police  must d i s c l o s e  officer's  affidavit.178  The  the f o l l o w i n g i n f o r m a t i o n t h e r e i n :  - 45 -  police  1.  the  facts  relied  authorization 2.  particulars  3.  the  upon  should  of  type  the  be  to  justify  the  belief  that  the  to  be  of  all  given,179  offence,180  of  private  communication  proposed  intercepted,181 4.  the  names,  persons,  5.  the  there  are  assist  the  a  general  if  addresses  and  interception  reasonable  description at  which  of  and  investigation  known,  occupations,  probable  of  of  whose  the  the  known,  private grounds  communications to  believe  may  offence,182  nature  private  if  and  location  communications  are  of  the  place,  proposed  to  be  intercepted,183 6.  a  general  t o be  description  the  d e t a i l s of  8.  the  period  9.  whether  that  other  failed the  using  or  only  other  order  application  i t is grant  conditions  why  to  of  interception  proposed  i n the the has  applications,185 authorization  i t appears  they  the  matter  carry  out  the  investigative  issue  been  from best  an  are is  requested,186 have  been  unlikely such  to  that  investigation  tried succeed  it  of  and  would  the  or be  offence  procedures.187  authorization,  made must  the  is  procedures  of  to  has  probabilities,188  to  manner  investigative  urgency  In  that  prior  f o r w h i c h the  impractical  the  the  used,184  7.  have  of  be  information  interests  of  a u t h o r i z a t i o n , 189  and  been met:190 - 46  the  -  the  satisfied, disclosed  judge  on  a  i n the  administration one  of  the  to  whom  balance  of  affidavit of  justice  following  1.  other  investigative  procedures  have  been  tried  and  have  failed, 2.  other  i n v e s t i g a t i v e procedures are  3.  urgency carry  of  the  out  the  investigative  The items 1.  that of  i t would  the  offence  succeed,  be  impractical  using  only  to  other  procedures.  authorization  t o be  offence  i s such  investigation  issued  i n order  the  matter  u n l i k e l y to  in  must  include  the  following  valid:  respect  of  which  private  communications  may  be  intercepted,191 2.  the  3.  the  type  of p r i v a t e  identity  of  communications 4.  5.  general  communication the  are  communications  may  that  be  place  general  can  persons,  t o be  description  may  if  be  intercepted,192  known,  whose  private  intercepted,193 of  be  that  the  place  intercepted,  at  which  i f a general  private  description  of  given,194  description  of  the  manner  of  interception  that  may  be  used,195 6.  the  period,  not  authorization In  addition  contain advisable  is in  to  such  the  advisable restricting  in  the  for  which  the  conditions  the  as  the  authorization judge  may  considers  interest.197  cases public  character  days,  requirments,  and  public  most  sixty  effect.196 above  terms  i n the  In  exeeding  as  the  terms  i n t e r e s t by to  the  - 47  or the  scope,  -  conditions authorizing manner  or  considered judge  places  are of  of the  proposed  electronic  authorization outside  of  requiring  to  the  the  primary  of  minimization a  intercept  concurrent  monitoring  Also  s u r v e i l l a n c e . 198  clause  room  bugging  that  the  physical  the  room  pay-phone  the  target  are  person  will  be  bugging  for  the  a  the  by  an  such  terms  or  live  purpose therein.  the  purpose where  of  telephone  person  the  entry  not  case  inserted  contained,  is  or  for  usually  in  person,  of  device  surreptitious  target  equipment  example,  surveillance  interception  of  of  recording  prohibiting  residence  public  residence  the  of  a  For  police  of  the  199 into  installing  judge  appropriate  of  thinks  under  the  circumstances.200  (i i)  Known P e r s o n and  Section police  178.12  should  provide,  application  for  occupations,  i f known,  private  may  authorities the  regardless  "primary  targets"  pursuing  and  thereof.202 Co.Ct.J.,  are For  while  that  of in  who  the  example, a  in  of  or  the  Regina  distinction  - 48  -  v.  to  those  intercepting  majority the  whose  grounds  be  involved  suspects  private  of  identities  police  are  in are  the of the the  actively  communications  Burns e l a l . 2 0 3  between  of  and  offence."201  the  the  the  addresses  probable  disclose  that  the  supporting  and  by  not  that  interception  believed  sense on  the  taken  police  are  rules  names,  reasonable  whether  intent  making  "the  been the  Code  affidavit  investigation  suspects"  offence,  the  are  has  Target  Criminal  a l l persons,  there  the  require  "known  in  of  provision  to  the  authorization,  assist  This  all  an  communications  to b e l i e v e  of  Primary  "known  Anderson  suspect"  and  "primary  target",  held:  "As  unreported  decision  (12),  investigating  the  suspects  ( i n the  in  it  restricted police the  to  is  for  and  some  other  own  residence. only  A  telephone  in  his  permitted  that  in  of  A's  the  of  to  the  wiretap This  a  of  it  According  only  A  the  case,  A,  and  D  the  C  as  communications  a l l the  consequence  may that  the  telephones is clearly "The  unique  the  opinion,  in  the  have  the  character  - 49  to  judge  -  of  of  C, at  the  D his  police  should for  very  disclose  the  object  B,  wiretap  the be the  phone  all  interception  reasonable  premises  against  that  interpretation,  investigation  the  and  affidavit  majority  are  that  it  on  of  found  the  to  my  authorizing in  that  the  time  telephone  intend  "persons  there  assist  the  the  through  suspects,  communications to  accept,  the  have  natural  and  in  this  B,  known  of  organization,  ranked  is  in  believe  Act.  private  the  Assume At  police  through  Then,  to  privacy  ring.  crime  target  name  the  purpose  individual  lower  case,  police  the  the  persons  primary  all  surveillance.  police,  result  Privacy  of  the  with  a  in  subsection  difficult  trafficking  of  residence.  the  private  grounds with  as  intercepting  identities whose  such  residence.  however,  a drug  unidentified In  is to  electronic  communicating  under  disclose  contrary  figure  observes  therein)...."205  authorization,  is a central  usually  purpose  of  an  must  protection  investigating  A  consider  the  Spencer  Carothers,204  interpretation  effect  wit,  application  Suspect A  an  operation  are  v.  officer  this  has  legislation,  Regina  brother  sense mentioned  However, because  my  of  and  the of  offence", permit  four the  electronic  of  probable  the  would  the  to  persons.  Protection surveillance  is  that  persons that  its as  well  would  should  network  be  as  because  the  In  of  many  Therefore,  an  interpretation  of  single a  device,  monitor  information  in  large  "E"  electronic  the  criminal  innocent  surveillance  and the  activities  such  of  single  device of  police  occasions would  of  try  warrant are  are  in  prevent  the  surveillance,  and  for  or  police  surveillance  small in  the  size  about  telephone  apply  expense  the  least  moreover forces of  activity.  -  50  -  or  operation  and  painstaking  corroborate  the  i n evidence  at  authorization his  when the  usual.  would to  telephone  the  and  and  the  460  an  execute  effective  investigation  for  to  install  them  person  to  paid  to  and  of  faithfully  lengthy,  adducing  target  amounts  line  personnel  available  electronic middle  renting  some  desirable,  and  RCMP  to  well,  vast  the  analyze  the  not  highly  requires  for  the  is  effectively  police  prepare  resources  interpretation  a  as  requires  of  for  view,  target  be  $300,000  importance  and  to  conversations,  therein,  of  the  Division  number  the  to  order  over  Therefore,  when  as  room-bugging  of  point  surveillance  Interception  efforts  And  police  1984  company  lines.207  manpower  lives  plethora  practical  manpower  telephone  only  a  electronic  conducted.  trial.  the  guilty."206  about  the  by  the and  a  upon  avoided.  selectivity  of  the  bring  From  money  intrudes  suspected sufficient  measure.208 The  majority  restricted  use  of  make  it  impossible  make use  of  electronic  large-scale  organized  crime  relevant the  For  the  part  of  police  (not  Section  disclose  a l l the intended  are  reasonable  and  of  the  There  that  authorization,  and  the  application,  by  the  basket  clause as  the  should  be  taken  of  a l l the  i f i t read;  whose  to  opinion to  that  require  "primary  "...  private  grounds  support  f o r my  (No.  of  that  targets"  communications  believe  the  a l l persons,  may  there  assist  Street,  and  that  provided  interpretation.  2),209 who  a c t u a l l y known t o  of  Co.Ct.J. held  as  of  Read  one  was  of  the  offence."  i s some  Blundell, Street  am  identities  probable  the  I  178.12  interception  investigation  contended  above,  known s u s p e c t s ) ,  the  v.  reasons  his  the  was  defence  not  "unkown"  are  persons.  Regina counsel  named  a police officer  communications  for  In  at not  in  the  the  time  covered  Cartwright  follows:  T h e r e i s no p r o v i s i o n i n P a r t IV.1 [enacted 1973-74, c.50, s.2] of t h e C r i m i n a l Code, R.S.C. 1970, c. C-34 as amended t o d a t e [by 1976-77, c.53] that requires e i t h e r t h a t t h e a u t h o r i z i n g Judge must be i n f o r m e d o f e v e r y p e r s o n known or unknown s u s p e c t e d i n t h e c r i m i n a l a f f a i r , e x c e p t f o r s. 178.12 [am. idem, s.8] r e q u i r i n g particulars o f the offence, or t h a t an authorization must be issued f o r e v e r y known c r i m i n a l p a r t i c i p a n t whether the law o f f i c e r s o f the Crown w i s h i t or n o t . The l a t t e r s i t u a t i o n w o u l d be l u d i c r o u s and would l e a d to a plethora of authorizations; just the exact opposite of the course upon which Parliament has embarked. The l a n g u a g e of s. 178.12(e) r e q u i r i n g i n the peace o f f i c e r ' s a f f i d a v i t : (e) the names and addresses, i f known, of a l l persons, the interception of whose private communications there are r e a s o n a b l e and probable g r o u n d s t o b e l i e v e may a s s i s t t h e i n v e s t i g a t i o n of the o f f e n c e . . . (my e m p h a s i s ) makes i t c l e a r t h a t e v e n t h o u g h S t r e e t may have b e e n known, t h a t s t i l l does not say t h a t an interception installation upon S t r e e t ' s communication s y s t e m would " a s s i s t the i n v e s t i g a t i o n " i n t h i s a l l e g e d e n t e r p r i s e i n w h i c h the Crown has a l l e g e d t h a t B l u n d e l l - 51  -  was the s u p p l i e r . I note t h a t s.178.13(2) o n l y sets f o r t h m a n d a t o r y c o n t e n t s of an a u t h o r i z a t i o n and again i n conformity with s.178.12(e), supra, s.178.13(2)(c) r e q u i r e s t h a t the a u t h o r i z a t i o n s h a l l : ( c ) s t a t e the i d e n t i t y of the p e r s o n s , i f known, whose private communications are to be intercepted... As I s a i d above, nowhere i n P a r t IV. 1, and e s p e c i a l l y i n ss.178.12 and 178.13 i s t h e r e any r e q u i r e m e n t t h a t a l l known s u s p e c t s t o the a l l e g e d o f f e n c e must be b o t h disclosed and specifically subjected t o an authoriza t i o n to i n t e r c e p t t h e i r p r i v a t e communications.210  Section  11  of  the  I n t e r p r e t a t i o n A c t 211  reads:  11. Every enactment shall be deemed remedial, and s h a l l be g i v e n s u c h f a i r , l a r g e and liberal construct i o n and i n t e r p r e t a t i o n as b e s t e n s u r e s the a t t a i n m e n t of i t s o b j e c t . I  think  that  Blundell  the  is  Protection  approach  sound  of  in  Privacy  relevant  person  may  necessarily  the be  a  not  required  in  the  an  innocent  of  Section  the  may  third  an  assist  the  On  disclose the  party  In  should  of  Regina  evidence under  be  i f his  this  private  practice,  - 52  -  v.  Chesson  a  the  of  his  Thus,  of  case  the  is  suspects  the  police  not  police  implied  within  the  and  private  a l l the also  a  particular  communications  however,  of  investigation  a known p e r s o n  in  delivered  that  identities  hand,  object  Appeal  interception  the  Co.Ct.J.  prevail.  investigation.  other  can  said  In  offence  the  178.12(l)(e)  investigation.  that  that  to  affidavit.  to  Court  point.  held  Cartwright the  therefore  this  party  by of  Alberta  court  proof  communications are  on  light  and  the  judgment  Vanweenan212  the  Act,  Recently,  taken  that  meaning  may  assist  will  not  name an  innocent  third  party  as  a  target  i n the  affidavit  on  any  period  of  occasion.213  (iii)  Renewal o f  Where electronic can  be  the  repeatedly  and  those  the  for  required  in  application  of  original  the  affidavit the  full  in  that  was  of  the  the  and  expiry  of  applicant,  police  period  the  require to  same  often  for  of  if  the  conditions  renewal, as  the  renewal  is  interceptions,218 and in  information  the  to  information  supporting  which  any.220  further  similar  The  previous  former  authorizing  are  officer  thereof  the  the  interceptions,219  grant  the  happens police  unknown a t  the  police crime  authorization courts  of  the  a renewal  details  addition, i f he  the  those  the  the  thinks  it  must  be  judge  required  for  the  a u t h o r i z a t i o n have b e e n met.222  authorization  serious  the  authorization.216  by  order  the  before  applications  may  prolong  authorization,  particulars  obtained  judge  to  a p p l i c a t i o n f o r renewal  reason  renewal  It  that  of  original  necessary.221  an  status  the  the  previous  authorizing  who  The  information  satisfied  need  obtained,214  procedure  is  required,217 the  police  s u r v e i l l a n c e under  authorization.215 judge  Authorization  that  found than  was a  authorization;  the  find  during out  time  of  that  the  those  in  g r a n t e d . 223  renewal it  that  can  cannot  the  of  suspects respect  extend  "extend,  - 53  the are  of  the  of of  the a  new  involved which  time add  original target  authorization,  i t has  modify,  -  period  identity  granting  However,  only  the  been of to  in  the  or  other  original  held the  or  by  the  original otherwise  deal  with  extending shall  any  feature  the period."224  apply  t a r g e t , 225 otherwise  f o r a fresh o r new  In  case  of  without  consulting  make  i s one  instituted  by  that  an  designated  In  respect  the  t h e Government  i n writing  designated  from  grant  thirty-six situation  an  time  hours  requires  commence b e f o r e  (v) As  he  that  court  conducted  General  of  the  i s satisfied interception  of  emergency i t must be  Criminal  period  private  or  Code,  The j u d g e of  the urgency  could  Unlike  jurisdiction,  J u s t i c e . 231  that  authorization  up  to  of t h e  communications  be o b t a i n e d . 2 3 2  Notice  the person  -  Also  the  for a  must  the d e s i g n a t i o n  of c r i m i n a l 482  o r on  o f Canada.228  of t h e p r o v i n c e . 229  authorization  rule  by  the p o l i c e o f f i c e r  by t h e C h i e f  Post-Authorization  concerning  i f a n y , may be  authorization,  Section  the ordinary  a general  and  police  authorization  the  i n the province,  General  t o time  when  for  t o be i n w r i t i n g . 2 3 0  in  emergency  designated  If  the S o l i c i t o r  of a s u p e r i o r  defined  identified  i n v e s t i g a t e ; 226  proceedings,  Canada  ordinary  i s not r e q u i r e d  as  specially  o f Canada,  offence  application  judge  of  by  the  t o a judge  to  the p o l i c e  defective.  agents.227  General  be made by t h e A t t o r n e y  application  a  of which  must  may  intend  application  Crown  i n respect  for  cases  simply  Authorization  ex p a r t e  o f any o t h e r  beyond  as t o t h e n e w l y  they  emergency,  of the Attorney  be  a  i n these  authorization  Emergency  can  made  authorization  Therefore,  offences  officer  behalf  the  t h e r e n e w a l would be s u b s t a n t i v e l y  (iv)  offence  of  54 -  who  became  the object  of  the  e l e c t r o n i c s u r v e i l l a n c e pursuant  notified days  i n writing  next  given  following  General  made.233  The  period  not  superior Section  482  of  interception detail.236  Also,  who  were  communications  t o be  the f a c t  pursuant the  to  were  the o b j e c t s  order  an  at  the  of  the  a  was  longer  judge  of  as d e f i n e d  a by  of  the  the  the  object  without are  authorization  intercepted.237  period.235  post-authorization  was  notice  i n t e r c e p t i o n under  pre-authorization  notice  authorization,  in  for a  or a judge  the person  of  or the  upon a p p l i c a t i o n f o r d e f e r m e n t  contents  that  i n fact of  an  was  application  substituted  be  ninety-  authorization  the  of the o r i g i n a l  objects  named  by  either  the  must  of the p r o v i n c e  behalf  c a n be  Code,  the e x p i r y  practice,  whose  jurisdiction  Minister  the  General  years  the C r i m i n a l  i s merely  persons  three  concerning  In  on  period  criminal  stage234 or b e f o r e  notice  Canada  exceeding of  f o r which  the A t t o r n e y  of  authorization  of the i n t e r c e p t i o n w i t h i n  period  ninety-day  court  the  became  the  o r renewed, by  Solicitor  by  of the f a c t  t o an  any  of  an  further  limited  t o the  whose  private  and  Therefore,  a basket  those  clause  who  are not  notified.  5. E v i d e n t i a l R u l e There obtain  are  two  types  by means o f e l e c t r o n i c  1. p r i m a r y e v i d e n c e ,  of  evidence  that  the  police  can  surveillance:238  to w i t , evidence of i n t e r c e p t e d  private  communications, 2.  derivative  evidence,  to  wit,  evidence  - 55 -  obtained  directly  or  indirectly  as  of  communications.  private  Section  178.16  t y p e s of  The  general  evidentiary  communication against  to  pursuant  the  the to  a  hand,  parties  of  admission  and  procedural  by  to  by  interception  the  or  rule  on  receive  (b)  the to  both  i t has  with  unlawful one  the  judge  magistrate  solely  obtained  relevant  because  application  of  a  for  to  or  primary of  a  On  the  electronic  consented  is  the  surveillance  expressly  evidence  (a)  consent  is admissible.  or  the  expressly  the  electronic  unless  or  thereof  has  evidence  the  unless  Therefore,  by  "A  inadmissible  originator  surveillance the  follows:  is  it  receive  secured  primary  in  as  communication  inadmissible  However,  inadmissible  the  authorization  conversation  irregularity  to  by  evidence  such  stated  intercepted of  or  electronic  the  is  thereof."239  judicial  admit  been  originator  prima f a c i e  where is  made;  the  the  thereof.  rule  originator  primary  is  interception  the  acquired  provides  originator  admission  valid  the  discretion  issue,  by  has  conversation  the  surveillance  the  lawfully  secured  of  that  the  intended  consented evidence  by  was  person  other  Code  Evidence  intended  party  Criminal  Primary  interception the  the  information  a.  evidence  person  of  of  evidence.  private as  a result  by a  of  the  to  the  has  a  unlawful matter  at  formal  defect  or  or  giving  of  the  authorization.240  Before electronic  the  surveillance  primary  evidence  is received  - 56  obtained  i n evidence,  -  the  by  lawful  accused  must  be 1.  notified a  full  2.  the  transcript  adduced  the  of  in  the  Crown's i n t e n t i o n ,  of form  particulars private  a  a  the  private  respecting  other  the  is  a  where  statement  communication,  be  given viva  thereto,  compliance  notice244  or  time, place  parties  hand,  authorization  the  with:241  communication,  recording,  communication w i l l  statement  the  private  of  of  c o m m u n i c a t i o n and On  the  together  setting  where  voce;242  and  i t will  date  be  forth  evidence  of  and  of  the  private  i f known.243  with  the  irrelevant  requirement  to  the  of  post-  admissibility  of  evidence.245  b.  Derivative  The  proviso  obtained  directly  acquired  by  inadmissible itself  derived judge  by  is from  or  prima  administration  Impact  of  the  a  opinion  surveillance  that  the  justice into  Protection  1.  P o s i t i v e Aspect  As  I pointed  out  regardless  unlawful  to  not is  derivative  whether  not.  it  is  However,  the  electronic  a  derivative surveillance  thereof  would  bring  disrepute.246  of  the  57  the of  or  is  communication  refuse  admission  Privacy  Act  on  the  Police  Police  earlier,  -  information  communication  Therefore,  to  "evidence  of  private  discretion of  states:  result  private  admissible  virtue  the  a  evidence."  has  of  178.16(1) as  that  electronic  by  the  a  only  facie  magistrate  i s of  of  as  lawful  where  he  indirectly  reason  secured  C.  or  Subsection  interception  evidence  the  of  inadmissible  evidence  Evidence  the  -  Protection  of  Privacy  Act  acknowledged, legitimate  for  the  first  of  police  method  time,  investigation,  the  self-imposed  the  intercepted  communications  the  electronic  surveillance  measures  of  l i m i t a t i o n on  the  investigation. conspiracy usually  the  oral  get  i s the  on  out  by  tying  investigation.  remarkable  of  the  case  the  to  their  only  of  using  Since  then,  important  major  trafficking crime  group, of  hierarchy, i t is  secure  the  except  extremely  professional  to  crime  involvement  the  a  upon  drug  Since  such  method  of  the  own.  from  in  as  eliminated  most  organized  show  criminals  this  critical  surveillance.  gathering of  gathering" the  as  trial.  in  of  an  the  side,  Privacy by  later  Act  to  have  of  also the  electronic  specific  practice  intelligence  I  prohibited  virtue  authorization  However,  usefulness  at  evidence  Protection  intelligence  surveillance,  one  thus police  secure  intelligence  the  the  sophisticated  the  surveillance  and  of  upper echelons  electronic  that  been  confession  the  part  evidence  evidence  the  the  to  "strategic  under  no  interrogation,  As pointed  a  communications  to  evidence  to  by  be  standing  difficult through  can  as  instance,  controlled  there  criminals for  For  the  has  police  electronic  has  gathering  offences shown  its  method  as  well.  First disclaimed Iannuzzi  by  the  all, Ontario  (No.6).247  legitimate the  of  target  for  the  person's  Zuber police  limitation Court J.A. to  of  Appeal  to  the  in  Regina  authoritatively  intercept  communications  -  as  58  u n d e r an  regardless  -  ruled  offence  was  v.  and  Welsh  that  it  authorization of  whether  or  is all not  they  are  concerned  authorization.  The  with  the  offence  specified  police  can  lawfully  intercept  communications  concerning  b e e n commenced  i n r e s p e c t t o the s p e c i f i e d  On t h e o t h e r supra,  that  where  clause  i t i s not  communications intercept persons to  hand,  the  between  interception 1. unknown  Since  of p r i v a t e  to  unnamed  the  who  the i n t e r c e p t i o n  i n t h e same c a s e , include  police  to  intercept  persons,  in  then,  which  however,  a  has  offence.248  does  to  the  a l l the  not  f o r the  authorization  persons  respect  i t was h e l d  communications  are party.249 i n an  o f f e n c e , once  authorization  lawful  private  insert  any  in  basket  other  none  Welsh,  a  basket private  words,  of  the  i t h a s become  clause  to  named common  p e r m i t t i n g the  communications of are i n concert with  specified  offence  t h e named  person  (offence-relating  with  basket  c l a u s e ) ; or 2. unknown  persons  persons And  the  who  resort  (place-relating "unknown  to  basket  persons"  the  premises  of  the  named  clause).  have  been  taken  by  the  courts  to  i n c l u d e not only 1. t h o s e  who  identified  were  known  t o be  a t t h e time  involved  i n the o f f e n c e  o f the a p p l i c a t i o n ;  2. t h o s e whose e x i s t e n c e was t h e n c o m p l e t e l y  Moreover, of  Appeal,  cover  even  according  the second an  innocent  type  but a l s o unknown.250  to the o p i n i o n of the Ontario  of basket  person  but not  who  - 59 -  c l a u s e mentioned  i s not p e r s o n a l l y  Court  above c a n involved i n  the  offence.  included  In  Regina  v.  Samson,251  a p l a c e - r e l a t i n g basket  relevant  as  follows:  clause  3. The identities of the c o m m u n i c a t i o n s may be i n t e r c e p t e d i.  the  persons are:  authorization  whose  private  D o u g l a s J o h n Graham 46 G r e e n w i c h C i r c l e Brampton, O n t a r i o O c c u p a t i o n : Unknown  ii.  D o n a l d A l l a n Graham 46 G r e e n w i c h C i r c l e Brampton, O n t a r i o O c c u p a t i o n : Unkown  iii. iv.  ... Any O t h e r P e r s o n / s a t any i n t h i s paragraph.^57  [emphasis Brooke J.A.  of  the  locations  shown  added]  held  as  t o the  s c o p e of  the  basket  clause:  I t h i n k t h i s would i n c l u d e anyone who may live there and indeed could include a casual visitor. For example, a trademan who a t t e n d s a t the r e s i d e n c e and w h i l e u s i n g t h e t e l e p h o n e d i s c l o s e s t h a t the occupant will be out until a f i x e d t i m e , o r who answers an incoming telephone call and relays a message as r e q u e s t e d by the o c c u p a n t , may w e l l have information which a s s i s t s i n the i n v e s t i g a t i o n of t h e o f f e n c e . 2 5 3 Thus, with  under respect  object the  this  of  to  kind  of  specific  electronic  basket  clause,  premises,  surveillance  any so  to  wit,  innocent long  as  those  person he  is  provided  can  be  resorting  the to  premises.  In customary interception  addition to  to  insert clause"254  the in  basket an  which  clause,  i t has  authorization permits  - 60  -  the  an  police  also  become  "itinerant to  perform  electronic  surveillance  a t any p l a c e  resorted  t o by  the  target  person.25 5  Thus, Protection  a  of Privacy  powerful  weapon  gathering, against  as  positive  Act  has  f o r both  which  aspect  provided  evidence  i s indispensable  to the  the  police,  police  gathering in their  with  and  the  a  most  intelligence  never-ending  fight  crime.  negative judicial  2.  Negative Aspect  In  my  opinion,  aspect  to  the P r o t e c t i o n  the  or otherwise,  to the P o l i c e  police.  of P r i v a c y  That  i n the operation  Act also  i s undue  has a  interference,  by t h e p o l i c e  of c r i m i n a l  investigation.  Firstly, authority  to  surveillance. barricade  and  an  Except  on  o f Canada  t o make  of  for  with the electronic  as  justify  hostage  an  or  emergency  t o a s k an " o u t s i d e r " ,  an a p p l i c a t i o n ,  materials  i s t o be  such  of the p r o v i n c e  f o r the a u t h o r i z a t i o n ,  investigation  occasions  information  because  the p o l i c e  application  would  have  General  a l l the supporting  Secondly,  rare  which  a l l the necessary  required  ordinary  the p o l i c e  of the Attorney  General that  make  situations  application,256 agent  t h e law d i d n o t f u r n i s h  to wit, the  or of the S o l i c i t o r  i n spite  i s i n t h e hands  of the f a c t of the p o l i c e  a r e t o be made by t h e p o l i c e .  the  nature  t h e whole  scrutinized  - 61 -  of  process  at the time  the  conditions  of the p o l i c e of  application,  both the  by  the  agent  conventional  portions  of  here  to  the  information  order  convince  the  administration  other are  traditional unlikely  emergent  as  judge  of  justice  succeed,  third  the  go  behind  cannot  judge  who  judge  of  aside  where  the  found  to  editing  police  are  from  beginning  the  of in  the  be  of  the such  informants,  best  in  interests  either  and  have  impractical  be  tactical  authorization  procedures  to  including  the  of  relevant  a l l the  the  would  be  by  such  or  of  that  failed,  because  of  some b a s i s  as  the  setting  the  the  of  by  purpose  that  the  -  can  for  a  trial  can  be  made t o  on  cases  to  was  and  other  ascertain  ex  that  the  be  parte  subject critical accused materials  whether  a u t h o r i z a t i o n . 260  set  granted  the  safeguarding  the  another  should  informants,  affidavit he  - 62  of  held  authorization,  proved  of  the  the  available,  recent  of  although  authorization  facts  held  J.  authorization  the  the  police  aside  attack  i s not  identities  so  that  authorization  which  for  Mclntyre  Canada  i f he  been  the to  of  that  upon  application, for  Queen,258  the  and  court  reviewability  collaterally  i t has  access  the  The  d i f f e r e n t from  the  the  is  i t or,  facts  Also,  have  for  granted  "the  information  is  only  application  to grant  or  warrant the  respect  disclose  i t is  Supreme C o u r t  same c o u r t ,  review."259  used  that  W i l s o n v.  a p p l i c a t i o n f o r review  should  the  In  of  identities  point  of  majority  are  to  judge.  circumstances.257  the  to  the  hands  period  of  the  In  same  arrest  have  the  time  authorization.  an  police  investigative  to  The  judge  or  i n the  during  critical  authorizing  warrant  the  obtained  investigation  to  the  information  but  information  by  search  the  disclosed,  and  there  Thus,  the  police of  officers  the  the  are  defence  counsels  considerable the  be  i n v e s t i g a t i o n at  non-disclosure  of  to  lengthy  seeking  the  amount  police  the  are  on  cross-examined  of  evidence  of  the  information  to  the  preliminary  for  part  as  on  on  whole hearings  fraud  or  police.261  procedures  investigation is disclosed  i n the  process while wilful  Here,  and  a  techniques  presence  of  the  scheme o f  the  criminals.  The  fourth  authorization warrant roll  police  only  police.  On  envisaged provide  itself.  the  is  by  judge, not  In  choose  majority with  police,  critical  respect  contrary,  judge the  most  the  determine  the  The Carothers  to  the  the  and  following  the the  statement  et al.263 r e p r e s e n t s  of  scheme courts  this  and  the of  is  Spencer  or  the  intent  the  arrest judge's of  the  authorization  this:  information  c h o o s e the  of  warrant  thereof,  necessary  properly  i s the  search  adequacy  here, of  the  objects  the  a l l the can  of  point  The so  police that  the  objects.262  Co.Ct.J.  i n Regina  v  scheme:  Under S e c t i o n 178.12(e) the a p p l i c a t i o n must r e v e a l the names of all known persons, and under Section 178.13(2)(c) the a u t h o r i z a t i o n must name a l l known p e r s o n s who a r e c h o s e n f o r i n t e r c e p t i o n . 2 6 4 [emphasis Another  example  statement  added] of p r e s e n t a t i o n  o f B r o o k e J.A.  of  the  same v i e w  i n Samson, s u p r a  i s the  following  :265  I f i n d no a m b i g u i t y i n t h e p r e s e n t s s . 1 7 8 . 1 2 ( 1 ) ( e ) and 1 7 8 . 1 3 ( 2 ) ( c ) r e a d i n g them s e p a r a t e l y or t o g e t h e r . The first of the two sections sets out t h e f a c t s and i n f o r m a t i o n w h i c h must be p l a c e d b e f o r e a j u d g e when he  - 63  -  i s a s k e d t o d e t e r m i n e who a r e a l l the p e r s o n s the interception of whose p r i v a t e communications there are r e a s o n a b l e and p r o b a b l e g r o u n d s to b e l i e v e may assist i n t h e i n v e s t i g a t i o n ... 266 [emphasis  In of  due  added]  the  above  respect,  professionals better  on  police  without  Court  respect  by  to the  the  role the  a  majority  the  of  authorizing  room  into bugging  the  can  the  objects  a  police  of the  personal  device,  as  in a  criminal criminal  experience  intelligence  the  efforts?  The  of  the  objects,  Queen2 67 judge  also over  power  to permit  premises Estey  J.  for  the  clarified the  police  electronic surveillance.  named  lack  j u d g e be  about  any  selection  judge's the  observe  How  more  authorizing the  I  for  strategic  lengthy  L y o n s v.  the  manner  the  of  in  of  police  installing of  issue  know  without  to  J.A.,  court,  choose  judge  through  Canada  supervisory  recognizing entry  of  Brooke  the  to  police,  have a c c u m u l a t e d  Supreme  a  access  the  of  police  the  of  investigation.  can  than  Besides  with  the  How  investigation and  part  in criminal  investigation?  the  the  p o s i t i o n than  thereof  statement  After  surreptitious  the  purpose  proceeded  for  of the  court:  I believe that a court, i n i s s u i n g an authorization under Part IV.1, should, in the exercise of its supervisory function, designate the t y p e o f d e v i c e or devices w h i c h may be employed and the p r o c e d u r e s and c o n d i t i o n s w h i c h , i n the c i r c u m s t a n c e s r e v e a l e d i n the a p p l i c a t i o n , a r e n e c e s s a r y or a d v i s a b l e i n the p u b l i c interest.268 Thus  i t seems  to  me  that  the  authorizing  - 64  -  judge,  not  the  police,  presides  over  important  methods of  3.  the  a  by  the  In  my  forces,  is  the  as  respect  to  detailed  the  legal of  The  performing  D.  is  to  of  should  be  form the  of  most  obtained  citizen's  right  with  this  from  to  privacy.  upon  Canadian  latter  power  following  Protection  the  is  result  granted,  conclusion  of  Privacy  by  most  duty,  the  at  with  Act  Canadian  powerful  upon police  weapon  the  cost  Protection  of  Privacy  surveillance  investigation, the  power  scrutinized to  has  protection  impact  more  Act  of  in  their  investigation.  criminal  critically  The  frequently  Privacy  right  sense  investigation  electronic  police  a  the  the  criminal  in criminal  In  draw  crime-fighting  Because  provides  the  been  of  own  double-edged  events.  C o n s t i t u t i o n a l i t y of  intrusive  of  required.269  impact  police  the  independence  like  their  above. of  has  c i t i z e n s ; the  to  a  it  Protection  Canadian  has  course  1973,  the  threat  also  would  operation  forces:  the  upon  more a c c o u n t a b i l i t y  in  that  the  law  natural  I  the  and  the  police  the  impact  crime,  view,  in  one  investigation.  enactment  authorities  double-edged  organized  criminal  surveillance,  Conclusion  Since maintained  electronic  with  privacy.  - 65  of a  is the  view  particularly  legislation  electronic  Therefore,  -  a  Act  to it  the is  which  surveillance protection  of  essential  to  examine  the  under  constitutionality  the  Canadian  (hereinafter Supreme  referred  Court  of  interpretation right  to  be  Hunter et the  secure  a l . v.  search  court  ruled  protection protect "[T]he  that  the  is  a  Section  8  of  search  and  of  of  surveillance.  In  to  which  of  search  and  of  the  must  other  prevents  judge,  upon  must  of  meet  unjustified the  and at  person  a  minimum  be  to  the  as  far  Dickson  of  of  that  traditional  to  electronic  Privacy  Act  is  Charter.  the  Section  8  authorization  they search he  specific  authorization  prior  although  the  follows  comply w i t h  a  from  Since  to  to  stated:  enunciated  of  as  individuals  before  capable  - 66 -  to  also  has  system  and  limited  only  the  authorizing  impartial,  the  least  governing  searches  Combines of  at  but  8 of  In  decision  not  not  i n order  all, a  the  is  Protection  provisions  seizure".  inevitably  evidence  supra,  "the  privacy."274  apply  the  guarantees  c o n s t i t u t i o n a l i t y of  protect  it  the the  or  Justice  their  Freedoms270  on  of  goes  is...to  words,  must  which  Charter  Act  Recently,  search  Chief  Hunter,  First  Secondly, neutral  he  8  and  unanimous  r i g h t , but  should  statutory  seizure  Charter.  be  the  Privacy  statement  which  the  s c r u t i n y under S e c t i o n  standards  required.  of  tangible  Conveniently,  which  in  document",275  Charter of  Charter  271  privacy.  "purposive  relevant  issue,  intrusions  the  a  the  of  Charter").  provisions272  in 8  Rights  unreasonable  Section  seizure  subject  was  property  State  Charter  of  Inc.,  Section  the  purpose  8  Protection  of  "the  made  seizure  right  unjustified  now  Southam  Act273  of  as  against  and  Investigation  to  Section  the  Charter  Canada  of  of  happen and  need  acting  not  is  seizure be  a  judicially.  Thirdly,  in  interests  between  must  be,  respect  at  established committed the  the  a  upon  and  and  interception and  probable  be  individual's  untenable.  my What  on  interests.  which  opinion, is  if  t o be  found  may be  someone may  of  and  thus  however, in  argue  the  - 67  will  close  "the  is  names, the  reasonable  investigation an of  Part  electronic IV.1  of  the  provide  the  or  presented  that  of  affidavit  demonstrate,  not  that find,  targeted  evidence  satisfy  the  in  third  i n Hunter.277  this  train  of  thought  178.12(l)(e)  assesses  merely  -  of  clearly  persons  by  that  believe  judge  178.12(l)(e)  place  hurdle.  are  authorization  Section  authorizing  all  assist  does  specified  been  a  third  there  applicant  to  the  investigated  application  grounds  has  above,  provided  an  there  C r i m i n a l Code r e q u i r e s t h a t  known,  for  the  offence at  of  grounds,  of P r i v a c y A c t  communications  specified  the  Section  the  communications  requirement  an  standards  r e q u i r e the  offence,  that  offence being  added)  probable  an  of  balance  prbbable  r e s p e c t t o the  believe  whom  private  constitutional  In  to  does n o t  and  to  the  application  before  reasonable  relation  of  Therefore,  Code  judge  standard  178.12(l)(e)  whose p r i v a t e  an  surveillance.  the  second  the  i s assessed,  and  Protection  required with  (emphasis  accompanying  the  which  individual  i s evidence  and  grounds  the o f f e n c e "  Criminal  to  occupations,  of  the  believe  particulars  addresses  and  on  oath,  first  shall  basis  "reasonable  there  Section besides  state  Although  the  examination  the  minimum,  that  search".276  satisfies  of  shows  the one  is  i s not balance of  a of  many  elements  that  must  application. study,  As  the  affidavit,  be d i s c l o s e d I  law  detailed  requires  investigation  issue  an  into  authorization,  i n the previous that  a l l the important  their  i n the a f f i d a v i t  the  arguments  police  information  accompanying the  disclose,  obtained  judge  must  be  And  this  i n the  i n each  a p a r t i c u l a r offence. the  in  step of  i n order  satisfied  on  to such  information; (a) that i t would be i n t h e b e s t interests a d m i n i s t r a t i o n o f j u s t i c e t o do s o ; and  of the  (b) t h a t o t h e r i n v e s t i g a t i v e p r o c e d u r e s have b e e n t r i e d and f a i l e d , o t h e r i n v e s t i g a t i v e p r o c e d u r e s a r e u n l i k e l y to succeed or the urgency of the matter i s such t h a t i t would be i m p r a c t i c a l t o c a r r y o u t t h e i n v e s t i g a t i o n o f the offence using only other investigative procedures.278 Thus,  the  judge  can  authorize  communications  only  reasonable  and  probable  serious  offence  h a s been  suspect  i s personally  interests there  is a  involved for  of  to  interception  satisfied believe  of  that that  private  there a  are  targetable  committed  and t h a t  t h e named  i n the o f f e n c e ,  so t h a t  "the best  of  for believing  justice"  c a n be  the targeted  i t i s safe  secured.  person  to say that  the i n t e r c e p t i o n of h i s p r i v a t e  there  is  When himself  i s a basis  communications  will  the evidence.  Regina  constitutionality  J.A.  is  or i s being  involved  i n the offence,  In  Court  he  grounds  administration  basis  believing  provide  when  an  of Appeal f o r the court  v. F i n l a y and G r e l l e t t e , 2 7 9  of the l e g i s l a t i o n made  a  clear  was  statement  pointed out:  - 68 -  in  contended, on  this  which the  point.  the  Ontario Martin  In d e t e r m i n i n g the c o n s t i t u t i o n a l i t y of Part IV. 1 o f the Code the proper approach, i n my view, i s to consider i t s provisions and t h e s a f e g u a r d s contained therein i n their entirety. I t i s n o t p r o p e r , i n my o p i n i o n , t o s e i z e upon i n d i v i d u a l s e c t i o n s o f P a r t IV.1 and t o see i f those sections, viewed in isolation, contravene the p r o v i s i o n s of the Charter.280 Then M a r t i n  J.A. p r o c e e d e d :  I t i s t r u e t h a t s.178.13 does n o t , i n e x p r e s s l a n g u a g e , require the judge as a c o n d i t i o n of g r a n t i n g the a u t h o r i z a t i o n t o be s a t i s f i e d t h a t t h e r e a r e r e a s o n a b l e g r o u n d s t o b e l i e v e t h a t an o f f e n c e has been committed or i s b e i n g o r i s about t o be c o m m i t t e d and t h a t t h e authorization sought will afford evidence of communications concerning the offence... The judge must, however, be s a t i s f i e d that the g r a n t i n g of the a u t h o r i z a t i o n would be i n t h e " b e s t i n t e r e s t s of the administration of justice". The language used by P a r l i a m e n t , as p r e v i o u s l y i n d i c a t e d , r e q u i r e s t h e j u d g e t o b a l a n c e t h e i n t e r e s t s o f e f f e c t i v e law e n f o r c e m e n t a g a i n s t p r i v a c y i n t e r e s t s and, i n my v i e w , i m p o r t s a t l e a s t t h e r e q u i r e m e n t t h a t t h e j u d g e must be s a t i s f i e d that there i s reasonable ground to believe that communications concerning the p a r t i c u l a r o f f e n c e will be obtained through the i n t e r c e p t i o n sought. The " p a r t i c u l a r o f f e n c e " , o f course"! i n c l u d e s t h e i n c h o a t e o f f e n c e s o f c o n s p i r a c y , a t t e m p t o r i n c i t e m e n t t o commit the offence. To place this construction on t h e l a n g u a g e used by P a r l i a m e n t i s not t o read i n words t h a t a r e n o t t h e r e , b u t t o g i v e a r e a s o n a b l e meaning t o Parliament's language. . . . I am consequently of the view that, when the p r o v i s i o n s of Part IV.1 a r e considered in their entirety, the appellants' c o n t e n t i o n t h a t s.178.13 p e r m i t s an a u t h o r i z a t i o n t o be granted on the basis of a standard that is u n c o n s t i t u t i o n a l l y low must be r e j e c t e d . 2 8 1 [emphasis Thus,  the  added]  legislation  respect  to t h i s  balance  of  point,  interests  itself that  is  constitutionally  i s t o say, the b a s i s  between  the  hand,  i n my  state  and  the  valid  with  on w h i c h t h e individual i s  assessed.  On be  the other  unconstitutional  view,  an a u t h o r i z a t i o n  i f t h e j u d g e names an i n n o c e n t  -  69  -  third  would  party  as  a  target  of  electronic  interception  of  investigation  of  covers the  offence  the  any  third  Ontario  Court  In  stated  communications of  an  believed  to  provided  that  in  agency my  there of  the  this  it  is  the  which  the  from also  only  of  of  of  electronic to  are  surveillance  allow  to  cannot  that  because  measures  cars  is be  Part  it  has  been  intercepted to to  legitimate  reduce a  practical  investigative  -  Martin  70  -  J.A.  private  become  "the  is  not  offence,  to  believe  of  that  that  the  person a  car  will  rental  drugs."282  in  with  the  sustained.  standards  are  the  utilized  the  of  the  express  or  be  person  e.g.  defined  which  endorsed  inconsistent  IV. 1  lacks  as  Code the  transport  constitutional  arguable  not  of  offence,  judgment  communications  investigation  adoption  the  clause  commission  an  rents the  Minimization  those  I  that  communications  investigation  portion  unconstitutional.  Criminal  grounds  which in  however,  though  reasonable  private  unconstitutional  minimization.  time  are  clause  constitutionally  even  in  the  involved  should  supra, the  may  r u l i n g s q u o t e d above, and  Hunter,  the  person  of  assist  personally  i n Samson  IV.1  involved  Apart  is  Part  a  not  the  basket  opinion,  Grellette,  f r o m whom a s u s p e c t  view  prior  Appeal  authorization  be  interception assist  of  are  because  will  p l a c e - r e l a t i n g basket  of  under  who  i s , i n my  F i n l a y and  that  S i m i l a r l y , the  parties  the  merely  communications  offence.  therefore,  subject  private  investigated  more.  also  an  innocent  believe, by  his  surveillance  as the  specified Criminal  Code  provisions  for  "the  procedure  proper  subject  recorded",283 extent  of  minimum aims  to  in  and be  or  by of  "the  court-ordered at  the  same  pursued".284  For  instance,  Privacy  the  Act,  Street  Act  Title  of  2815(5) of  United III  States'  counterpart  of  Omnibus Crime C o n t r o l  1968,285 has  Title  III  the  a provision  for  of  the  Protection and  of  Safety  minimization.  Section  provides:  (5) ... Every order and extension thereof shall contain a p r o v i s i o n t h a t the a u t h o r i z a t i o n to i n t e r c e p t s h a l l be e x e c u t e d as soon as p r a c t i c a b l e , s h a l l be c o n d u c t e d i n such a way as to minimize the interception of communications not otherwise subject to interception under t h i s chapter, and must t e r m i n a t e upon a t t a i n m e n t of the a u t h o r i z e d o b j e c t i v e , or i n any e v e n t i n t h i r t y days. Although Title not been  the  Canadian  I I I , headed  follow  the  conditions  as  conditions  communications, of  recognized legislative  the  scheme  the  minimization  the  authorizing that  he  the  of m i n i m i z a t i o n  in  in  things,  in  be  the  the not  an  terms  and  - 71  -  the  can  of  the  in  one  for  police  the  light  i t does  because  the as This  guideline  opinion,  any  private  Lyons.  in any  public  specify  necessary  unconstitutional  provisions.287  such in  Canada  i n my  often  that  over  specify  has  provides  interception  better  i t did  However,  judge  role  on  privacy.  advisable  of  Nevertheless, is  of  conditions  Court  i t does  legislation  based  which  "contain  authorizing  such  not  extent,  point,  Code  supervisory  Supreme  judge.  this  considers the  large  protection  other  his  that  a  Criminal  thinks  might  to  Electronic Surveillance,  minimization  performing by  the  Therefore,  if  of  judge  requiring  and  light  among  the  is,  precedent  of  shall,  interests".286  follow  i n the  178.13(2)  authorization  purpose  Wiretapping  American  criticized  Section  statute  of  of for not lack  IV.  ELECTRONIC SURVEILLANCE  A.  Necessity  At  specific  of  Japanese  the  enactment  gathering  up  to  the  (the r a t i o  cases  reported),  efficiency  crime  rates  International Police rates  by  of and  solved  by t h e p o l i c e  i n 1984 b o t h  police,  clearance by  (Interpol),  the  that  rates. the crime  resorting  the  of  i n the of  and  offences "clearance  among  clearly i s to  say,  According  International rates  a l l  the  indicates  and  i n Canada and J a p a n a r e as f o l l o w s : 2 8 8  - 72 -  to  Japanese  the r e s u l t s  number  comparison  before  i n v e s t i g a t i o n are  population)  Japanese  higher  (the  no  however,  and o r d e r  While  and c r i m e  rate"  With  intelligence-  that  100,000  Crime S t a t i s t i c s  Organization  standards.  international  the  and  peace  police  forces  A c t , from  i t appears  prevention  of the c a s e s the  Canadian p o l i c e  i n maintaining  per  Japan.  surveillance,  evidence-gathering  "crime  police  governing  in  of Privacy  high  i n crime  shown  rate"  the  unlike  Nevertheless,  to impressively  statistically reported  as  successful  activities  statute  electronic  refrain,  measures.  no  communications  against  weapon  Surveillance  is  of the P r o t e c t i o n  have b e e n  country police  private  police  powerful  police  there  prohibition  the  this  of E l e c t r o n i c  present  interception  IN JAPAN  to  lower the  Criminal clearance  Crime R a t e s  (1984) [Japan]  [Canada]  Murder  1.5  6  Sex  Offences  3.6  59  Serious Assault  19.6  117  1,137.6  5,119  1.8  93  251.2  1,421  90.7  489  0.1  4  1.6  219  Theft  ( a l l kinds)  Robbery Breaking  and V i o l e n t  Theft  and E n t e r i n g  Fraud Counterfeit Drug  Currency  Offences  Crime T o t a l 2 8 9  Clearance Rates  1,453  10,802  [Japan]  [Canada]  (1984)  Murder  97.2 %  83.7 %  Sex O f f e n c e s  83.9  65.4  Serious Assault  94.5  79.1  Theft  58.7  22.1  78.8  32.1  69.8  21.1  97.7  69.7  25.5  21.4  100.0  88.0  66.5  46.4  ( a l l kinds)  Robbery and V i o l e n t Breaking  Theft  and E n t e r i n g  Fraud Counterfeit  Currency  Drug O f f e n c e s Crime T o t a l 2 9 0  - 73 -  Thus,  as  far  remarkably  as  Then  Japanese  police  opinion,  the  the to  in question  to  go,  the  performing  resort  answer  this  their  arises:  to  Japanese  is  it  electronic  question  is  police  are  crime-fighting  necessary  for  surveillance?  "Yes".  The  the  In  my  reasons  are  follows.  First the  constant  the  number  thousands) to  statistics  successful  duties.291  as  the  and  the  was  longer they  will  manage  resort  than  to  ever-increasing to  reflect  take  come to  in  crimes  are  inadequacy  of  police,  Therefore, leads  such  no  as  how  ineffectiveness to  "low"  to prevent  rates  crime  drug  in  can  no  unless  effective  are  rates  the  do  not  field  of  bribery  and  the  from  outside  actually  clearance  to  committed.  investigation the  The  them.  gambling,  reported  up  likely,  demanding  clearance  while  -  more  and  police  very  situation is  (in  swelled  police  attack  they  rates,  - 74  the  and  rarely  the  is  on  1973,  i t went  number  society,  offences,  often of  the  In  investigation.  activities  are  the  when  which  been  police  later,  which  criminal  police  crimes  matter  of  crime  the  deteriorating  a menace t o  method  to  later,  surveillance  has  decades.  years  future  the  methods  Those  five  crimes  two  known  continues,  near  with  electronic  crimes,  1978,  trend the  deal  a new  nearly  offences  In  this  both  prostitution.  field  If  for  number o f  f i v e more y e a r s  Secondly,  victimless  the  1983,  traditional  police  code  1,191.292 In  absolute  increase  penal  1,541.294 time  a l l , the  rapid  of  1,337.293  into  of  in rates  this of  those  o f f e n c e s are  never  counted  is  in  this  for  their  the  only  the  thirty-third  i t does  effective  i n cracking  inadequacy illicit  every  of  stimulant  year  is  kilograms.295 them,  less  Japanese  5%  police in  of  one  field  armed w i t h t h e i n t r u s i v e  The "Yakuza",  third  the  organization.  Boryokudan  members,  Boryokudan", areas,  had  statistics 1.6,  Japan  is  by  to  At  1,878  into  be  of  the  crime  is  - 75 -  2,000  kilograms Maybe times  with  a  the  the  are  or  permanent number  throughout  Among  74  of  less  "Boryokudan"  police  of  Japan  surveillance.  syndicates  groups  to  c o u n t e r p a r t s who  1983,  groups.297  more  amount  over  99.0  electronic  end  by  2,330  smuggled  syndicate  the  the  The  thirty-three  considered  crime  and  thereof i s  are  smuggled.296  Canadian  crime  Canada.  police.  confiscated  and  Crime  It only points  to  allegedly  be  in  is  hundred  police  being  which  the  clearance rate  estimated  police  219  one  Japanese  weapon c a l l e d  in  one  offenders.  are  the  (1984),  while  Japanese  the  which  inter-prefectural men  the  drug  than  in  the  is  recognized  98,771  58,490  the  the  on  traditional  counted  to  hundred  factor  Mafia-type  country,  International  the t o t a l  are  this  the  criticized  in  officially  i n 1983,  than  effective  drugs  been  shown  that  the e f f o r t s  have  And i t  offences",  in  down  o f f e n c e s are  the p o l i c e ) .  police  i n Canada, and  follow  by  those  i s "drug  Japan  rate  that not  in  (because  solved  example  According  crime of  and  crime  offences  100%  Japanese  A clear  supra.  Although  of  the  victimless  drug  the  that  weakness.  of  100%,  unless unearthed  field  Statistics, rate  theoretically  them,  of the  "Koiki  covering  f a m i l i e s , 298  wider and  showed  no  sign  of  police  to  crack  earning  their  members  account  Japan, the  they,  that the  down  for  for  of  are  trillion  largest  fruit  book-making yen.301  Police  a year,  458  billion  Because  no  the  investigations  the  police  to  175.4  a  organizations.  The  Boryokudan  their  exterminate those as  well  only be  by  as  to  take  means o f  of  key  it  is  echelons away  their  traditional  and  resource  Research  by  Boryokudan  members  bearing  gamblling  illegal  69.2  billion  i t is essential  weapon  be  to  in  expected  unearth  penetrate  cracking  to  those  In  arrest i n the  resources.  investigation  in for  their  their  income.  the  by  crimes,  financial  of  National  can  of  is  the  followed  imperative  in  prostitution,  be  and  of  those  important  traffic  factors  ways o f  of  victims  and  instead  13.6%  drug  and  intrusive  organization  Boryokudan,  i n the upper  from  plans  two  yen  arrested  i t s huge  by  to  population  i s more  as  the  yen,  kinds  very  criminal  are  with  and  the  Boryokudan  total  gambling  above,  billion  those  obtain  sophisticated  drugs,  cooperation of  the  what  incomes e a r n e d  yen  yielding  of  total  by  criminals  Although  the  estimation  Science,  of  And  mentioned the  professional  violation299  dominates  to  of  f o r 6.7%  offences.300  According  Institute  0.1%  accounted  crimes  are  activities.  than  Code  painstaking efforts  They  illegal  less  crime  victimless  d e s p i t e the them.  Penal  other  organized  1.08  by  i n 1984,  for  income.  on  living  country  arrested  decline  solid down  on  order  to  and  detain  street The  level  efforts  have p r o v e d  to  shortcoming.  The "Kageki-ha",  fourth that  reason is,  i s the  other  extremists  - 76 -  type or  of  organized  crime,  ultra-leftists  with  paramilitary those  underground  violent  membership  in  ultra-leftist  of  conspicuously recent  about  In  increased  than f i v e  times  incidents  are  t o 47.304  as l a r g e brutal,  rockets,  and  otherwise  stable  virtually  powerless  find  subdue need  are  extreme  a  causing  society.  intrusive  underground  by  However,  ago.  Most  weapon  could  are  total  of  17  guerrilla  bombs  more  that  even  in  an  the p o l i c e and  incident.  that  In  police  deeply  and  unrest  the t e r r o r i s m ,  which  they  of the t e r r o r i s t  social  the Japanese  have  t o 87,305  fire-arms,  each  to  activities  of  i t surged  i t seems  i n solving terrorism,  a  number  considerable  i n suppressing  escalating  new  In 1985  committed  caused  the  as two y e a r s  difficulty  this  1984  and  and g u e r r i l l a  groups  o f 1983,  estimated  country,302  terrorism  In  o f t h e end  were  the  those  incidents.303  incidents  in  their 1983  As  groups  35,000  escalating  years.  guerrilla  organizations.  are they  order  to  definitely  penetrate  their  organizations.  In  summary  sufficiently  indicate  a method o f c r i m e a.  Constant  b.  Inadequate  following  four  the n e c e s s i t y  investigation  and r a p i d law  the  increase  factors,  of e l e c t r o n i c  by t h e J a p a n e s e  in  my  view,  surveillance  as  police.  i n t h e a b o s o l u t e number o f c r i m e s .  enforcement  i n the f i e l d  of  victimless  crimes  s u c h as d r u g s , g a m b l i n g , p r o s t i t u t i o n , e t c . c.  Difficulty victimless  d.  Difficulty underground  in  cracking  down  on  crimes which generate in  suppressing  Boryokudan  huge f i n a n c i a l  terrorism  organization.  -  77 -  by  the  controlling  the  resources. ultra-leftists'  B.  Legitimacy  of E l e c t r o n i c  1.  Decision  Court  Assuming method the to  future  deal  with  them  With  electronic  f o r the Japanese  near  for  that  when  police,  to use e l e c t r o n i c to  this  question,  w h i c h was d e l i v e r e d  1953.306  In t h i s  t h e manager  device)  close  Communist  Party  whereabouts violation  of  of  the  officer  contended  follows  order  several  staff  is  a suit  Thus, in  was  a radio  rented to  the present  only  one  Court  by  a  members  found  member  the  station  The  Tokyo  Japan  he  members, and of the p o l i c e their  surveillance  Court  ruled  (translation):  Although i t i s true that i n Japan sovereign power resides with the people309 and that the people's f u n d m e n t a l human r i g h t s c o n c e r n i n g t h e i r homes, s p e e c h , assembly, association etc. shall be the supreme c o n s i d e r a t i o n , 310 a t t h e same t i m e a l l t h e J a p a n e s e people are responsible f o r u t i l i z i n g those fundamental rights f o r the public welfare.311 Therefore the  - 78 -  was  gathering  f o r abusing  High  the  wanted f o r  communists  the prosecutions  17,  consent  the  While  by t h e communist  case  upon  Party  Act.307  between  his police  court.  old  (room-bugging  information of  law?  on J u l y  of  the l e g a l i t y of the e l e c t r o n i c  the  come i n  i s i t legitimate  transmitter  obtain  requesting of  will  o f f i c e r i n s t a l l e d , with  communications  the c h i e f  authority.308 was  a police  room  the device  filed  and  in  private  t h e room, Party  the  under  there  necessary  t o use i t i n o r d e r  situation,  the O r g a n i z a t i o n s Regulating  intercepting in  case,  have  by t h e Tokyo H i g h  of the premises, to  police  crime  is a  the time  surveillance  authority  of  surveillance  and t h a t  the Japanese  the d e t e r i o r a t i n g  respect  Surveillance  as  exercise of those fundamental r i g h t s i s not without l i m i t a t i o n , but should be r e s t r i c t e d so as to be i n harmony w i t h the p u b l i c w e l f a r e . Whenever t h e r e are s u s p i c i o n s of c r i m e s , r e g a r d l e s s of the k i n d s of o f f e n c e s or damages e t c . , i t i s w i t h i n the duty and a u t h o r i t y of the j u d i c i a l p o l i c e o f f i c e r to i n v e s t i g a t e thereon,312 and w i t h r e s p e c t to the methods of the i n v e s t i g a t i o n i t i s l e g i t i m a t e to take any d i s p o s i t i o n n e c e s s a r y f o r a t t a i n i n g the purpose of the i n v e s t i g a t i o n , p r o v i d e d t h a t the d i s p o s i t i o n i s not a compulsory one and t h a t i t does not v i o l a t e the laws and orders.313 T h e r e f o r e , the objects of such an investigatory d i s p o s i t i o n can include not only the suspects of the crimes but a l s o r e l e v a n t t h i r d p a r t i e s who have some r e l a t i o n s h i p with the offence or suspects. • ••  The s o l e purpose of the i n t e r c e p t i o n of communications in this case was the i n v e s t i g a t i o n of the crime committed by the e i g h t s t a f f members of the P a r t y . The p o l i c e had o b t a i n e d the consent of the manager of the premises t o the i n s t a l l a t i o n and use of the radio transmitter. The d e v i c e was i n s t a l l e d c l o s e to the o u t s i d e of A's room, b u t , a c c o r d i n g t o the clear e v i d e n c e , i t d i d not a f f e c t the o u t l o o k or u t i l i t y of the room at a l l . There i s no e v i d e n c e i n d i c a t i n g t h a t the i n t e r c e p t i o n was conducted f o r the purpose of preparation f o r o p p r e s s i n g the legitimate political a c t i v i t i e s of the Japan Communist P a r t y . A l t h o u g h the i n s t a l l a t i o n and use of the r a d i o t r a n s m i t t e r were k e p t secret from A whose communications were to be i n t e r c e p t e d , the d e v i c e was not a t t a c h e d to the room i t s e l f , and the consent of the manager of the premises had been o b t a i n e d beforehand w i t h r e s p e c t to i t s use and i n s t a l l a t i o n . Thus, i t i s c l e a r i n evidence t h a t the p o l i c e regarded the i n t e r c e p t i o n as non-compulsory disposition. T h e r e f o r e , as f a r as the i n t e r c e p t i o n was performed f o r the purpose of a t t a i n i n g the o b j e c t of the i n v e s t i g a t i o n , t h e r e was no abuse of the p o l i c e a u t h o r i t y even i f t h e r e was some minor bad influence upon the e x e r c i s e of A's fundamental r i g h t s , which was the natural result accompanying the interception, because such r e s t r i c t e d e l e c t r o n i c s u r v e i l l a n c e was i n harmony w i t h the p u b l i c w e l f a r e , and A and h i s company were r e s p o n s i b l e f o r u t i l i z i n g t h e i r fundamental r i g h t s f o r the p u b l i c w e l f a r e . 3 1 4  Thus  the  court  surveillance  by  the  investigation  i s legitimate  was  police so  -  of  the  for  the  long  79  -  as  view  that  purpose i t i s not  electronic of  criminal  accompanied  by  trespass there  on  the  has  been  surveillance to  the  premises no  (owing  method),  respect  to  the  privacy  by  Considering be  one  of  was  judgment,  it  legitimacy  the  However,  this  as  well the  the  of  As  that  i s the  police  for  for  the  most  not seems  as  Since to  electronic  stopped  only  resorting  authority  interception i s now  then  of  subject  to  severe  no  attention  ambiguity  of  i t s reasoning.  which  i s now  principles  guaranteed  by  generally  recognized  that  this  old  and  that  a  fresh  electronic surveillance is  considered  has  time  of  little  deliberation  the 315 to the  Constitution  the  authority  to  underlying  the at  with  private  paying  important  rights  law police  judgment  scholars as  the  judgment the  person.  case  r i g h t to p r i v a c y ,  present,  2.  above  targeted in  fact  of  human  Japan,316  at  the  legitimacy  that  fundamental  power  to  academic  right  the  development  and  communications. criticism  of  of the  binding upon  the  required.  Legislation mentioned  before,  there  regulating  electronic surveillance  Electronic  Cable  Communications  at  is  no  statute  present.  Law317 p r o v i d e s  specifically  Article  13  of  the  (translation):  Article 13. A p e r s o n who obstructs e l e c t r o n i c cable communcations by destroying electronic cable communication equipment, a t t a c h i n g devices thereto or by other means h i n d e r i n g the function of e l e c t r o n i c cable communcation equipment shall be punished with imprisonment at f o r c e d labor f o r not more t h a n five y e a r s o r w i t h a f i n e of not more t h a n one m i l l i o n y e n . Since  wiretapping  telephone cannot  be  by  the  communications c o v e r e d by  this  police  would  intercepted, provision.  -  80  -  create the  no  obstruction  surreptitious  of  activity  Article Business  4,  Paragraph  Law318 p r o v i d e s  1  of  the  Electronic  Communication  (translation):  Article 4. Secrecy of communications relating to dealings of an electronic communication business c o r p o r a t i o n s h a l l not be v i o l a t e d . And  A r t i c l e 104  of  the  same law  proceeds  (translation):  Article 104. A p e r s o n who violates the secrecy of communications r e l a t i n g to d e a l i n g s of an electronic communication business corporation s h a l l be punished w i t h i m p r i s o n m e n t a t f o r c e d l a b o r o r w i t h a f i n e o f not more t h a n 300,000 yen. However,  "communications  communication to  exclude  be  listened  business  telephone to  terminal.319 prohibited  by  of  the  other  dealings  in  communications  those  of  a  private  wiretapping  an  electronic  provisions  private  party  is,  of  at  are  party the  generally  taken  which  end  can  of  the  speaking,  not  the A r t i c l e s .  most  relevant  consideration,  Criminal  to  corporation"  Thus,  The detailed  by  relating  statutory  is  Procedure320  Article  dispositions  provision  (translation):  reads  197,  enunciating  non-compulsory  in  provision,  which  Paragraph  the  criminal  1  principle  of in  requires the  Code  favor  investigations.  of The  Article 197. With regard . to investigation, such examination as may be necessary for attaining its object may be made. However, c o m p u l s o r y d i s p o s i t i o n s s h a l l not be effected e x c e p t e d when t h e r e a r e s p e c i a l p r o v i s i o n s t h e r e f o r i n t h i s law. [emphasis At  present  added]  there  are the  no  surveillance  in  "compulsory  dispositions"  surreptitious  interception  "special  Code of  Criminal in  of  Procedure.  Article  private  - 81  provisions"  -  for  electronic  Therefore,  197(1)  communications,  include i t would  if the be  against  Article  police  to resort  if  we  take  upon  Tokyo of  High  disposition" against  is  the  follow  the scope  Judgment that  my  however,  be whether  the w i l l  the  disposition"  and  seizure  of tangible  conducted  i n secret  concerned,  seizure  is  accompanied the  by  object  against of  the object  his  property  interception in  which  that  they  intended  will  n o t be  recipient  A  course,  would  Even  private  typical  i f a search person  disposition against  reasonable  because  disposition  be  - 82 -  by  search  and  i s not  duties  because  upon it  is  expectation f o r security  made  the  surreptitious  under  circumstances  f o r the o r i g i n a t o r  intercepted  seizure from t h e  it  or l e g a l  Similarly,  communications  such  of  search  and  i s absent  that  who  example  the t r a d i t i o n a l  suggest  compulsion  should  of  e x p e c t a t i o n of the person  evidence.  i t i s reasonable  i s apparently  i n question  privacy.  of p r i v a t e  the  or not the d i s p o s i t i o n  I t i s a compulsory  and  Indeed,  "compulsory  i s , of  person's  electronic  of  non-compulsory  person.  touchstone  while the object  physical  duties  disposition.  disposition.  nobody  compulsion  the  interception  the  or reasonable  of  that  hand,  legal  17, 1953, s u p r a ,  i s not a compulsory  should  premises  on J u l y  some  the A r t i c l e .  surreptitious  view,  object  of  f o r the  "compulsory  physical  i t would  itself  a  some  thereof,321  "compulsory  is  accompanying  the  imposing  view  In  that  or those  Court  the  view  Procedure  On t h e o t h e r  thereof,  i s ,out o f  communication  is  those  the o b j e c t  surveillance  surveillance.  traditional  mean  the o b j e c t  o f t h e Code o f C r i m i n a l  to e l e c t r o n i c the  dispositions" against  197(1)  thereof  any p e r s o n  considered  as  to expect  other  than  an  "compulsory  disposition".  Therefore,  police  use  cannot  I  investigation  governing  i t s procedures:  Code o f  Criminal  3.  of  electronic  criminal  the  am  the  opinion^ that  surveillance  without  for  "special"  i t would  be  the  the  Japanese  purpose  statutory  against  of  provisions  Article  197(1)  of  Procedure.  Constitution  In  order  surveillance,  to  we  fully  examine  cannot  constitutionality  the  avoid  thereof.  legitimacy  of  deliberation  Article  35  of  the  electronic upon  the  Constitution  of  Japan322 p r o v i d e s ( t r a n s l a t i o n ) : A r t i c l e 35. The r i g h t o f a l l p e r s o n s t o be s e c u r e i n their homes, papers and effects against entries, s e a r c h e s and s e i z u r e s s h a l l n o t be i m p a i r e d e x c e p t upon warrant issued for adequate cause and particularly describing the place t o be s e a r c h e d and things to be s e i z e d , o r e x c e p t as p r o v i d e d by A r t i c l e 33.323 Each search or seizure shall be made u p o n separate w a r r a n t i s s u e d by a c o m p e t e n t j u d i c i a l officer. It  is  clear  of  Japan324  that  at  the  time  "search"  and  "seizure"  the  traditional  the  Tokyo  took  High  the  means  leading  of  the  of  States  of  case  Japan  on  law  does  in  the  83  35  referred  -  only  evidence. supra,  apply  to  Thus,  apparently electronic  investigation.  Recently,  into  United that the  account  States Article  Fourth  35  and of  the  concerning of  Amendment  right,  interception  communications.327  Constitut ion  to  privacy  police  -  not  the  like  the  1953,  taking  maintain  of  tangible 17,  criminal  protects,  the  of  July  35  Constitution,326 to  in Article  scholars,  surveillance,325  Constitution  applicable  Article  some  electronic  United  that a  proclamation  seizure  Judgment  as  development  and  Court  view  surveillance however,  search  of  thus  the  to i t  the is  private  In approaching Chief  Canada,  the  need  constitutional  Justice  Dickson  for  a  documents  for  the  broad  was  Supreme  perspective  recognized  Court  of  in  Canada  in  Hunter. ruled  as  follows: The task of expounding a constitution is crucially d i f f e r e n t f r o m t h a t of c o n s t r u i n g a s t a t u t e . A statute defines p r e s e n t r i g h t s and obligations. It i s e a s i l y enacted and as easily repealed. A c o n s t i t u t i o n , by contrast, i s drafted w i t h an eye t o the f u t u r e . Its f u n c t i o n i s to p r o v i d e a c o n t i n u i n g framework f o r the legitimate e x e r c i s e of g o v e r n m e n t a l power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of ind~ividual rights and l i b e r t i e s . " Once e n a c t e d , i t s p r o v i s i o n s c a n n o t easily Fe r e p e a l e d o r amended. I t must, t h e r e f o r e , be c a p a b l e of g r o w t h and d e v e l o p m e n t o v e r t i m e t o meet new social, p o l i t i c a l and h i s t o r i c a l r e a l i t i e s o f t e n u n i m a g i n e d by i t s framers. The judiciary i s the guardian of the C o n s t i t u t i o n and must, i n i n t e r p r e t i n g i t s p r o v i s i o n s , bear these considerations in mind. Professor Paul F r e u n d e x p r e s s e d t h i s i d e a a p t l y when he admonished the American courts "not to read the provisions of the Constitution like a last will and testament lest i t become one".328 [emphasis There  seems  only  to  to  the one.  Article  35  at  the  be  and  the  time o f  the  the  did  anticipate  enactment,  interpreting  the  it  enactment  cannot  and  this  American  powerful  be of  sensible Japan  i s a new  of  the  hand,  some  such  of  Japanese  police  to  argue  the that  applicable  to  unimagined  words  "Jukyo,  -  scholars  activities  is  84  to  argue  surveillance  there  -  not  social reality  other  electronic  that  is  but  applies  Constitution.  encompass kind  statement  constitutions  would  which  other  35  why  Constitution  surveillance,  Article  the  reason  Therefore of  On  not  no  Canadian  Japanese  electronic  added]  considerable Shorui  at  that  because the  time  difficulty oyobi  it of in  Shojihin"  (translated version)  as  i n A r t i c l e 35  scholars,  however,  Constitution of  "due  Article  "homes,  of  31  reads  and  include  vocal  unanimously  Japan,  process  to  papers  of  which law",  effects"  applies  the  English  communications.329  maintain  adopted  in  that  Article  the  principle  to  electronic  31  of  of  order  surveillance.  (translation):  must  " l i b e r t y " i n A r t i c l e 31  for be  the  police  to  intrusive  intercept  the  Article  35  surveillance  they  of  threat  thereby,  warrant  Further,  nature  substantial  to  the  be  authorities  which  35  virtually  private  communications.330  guarantees  relevant the  that  surveillance,  Article  which  right  the at  because  the  according  the to  of  (translation):  -  does  police  the the  created  required  by  electronic  those  requirements  not  of  apply  the to  academic directly  specified  by  interception  of  is Article  21  provision  speech.  be  should  to 35  the  of  principle  35  there  of  and  those  in  electronic  governing  least  Article  right,  the  could  to  law  constitutional  - 85  which  Article  applicable  freedom  for  that  similar  by  Thus  maintain  electronic  Another  that  law  surveillance  in  enunciated  surveillance.  are  and  by  privacy  or be by  communications,  contend  privacy  demanded  procedures,  requirement  to  also  r e s t r i c t i n g conditions shall  the  private  electronic  electronic  apply  encompasses  s p e c i f i c procedures established  surveillance.  the  requirement  Article 31. No p e r s o n s h a l l be d e p r i v e d of l i f e liberty, nor shall any other criminal penalty imposed, e x c e p t a c c o r d i n g t o p r o c e d u r e e s t a b l i s h e d law. Because  Those  Article  21  provides  Article 21. Freedom o f assembly and a s s o c i a t i o n as w e l l a s s p e e c h , p r e s s and a l l o t h e r forms o f e x p r e s s i o n are guaranteed. No censorship shall be maintained, nor s h a l l the s e c r e c y o f any means o f c o m m u n i c a t i o n be v i o l a t e d . [emphasis It  is  added]  clear  from  surveillance  by  the  the State  wording  that  which  violates  communications  i s prohibited  hand,  however,  t h e freedom  taken  t o be  the  by  Article  of speech  subject to the reasonable  "public  welfare"332  Constitution.  Article  clarified  12 r e a d s  uncontrolled the secrecy 21.331  guaranteed limits in  electronic of  On  private  the  other  by A r t i c l e  21 i s  f o r the purpose  Article  12  of  of the  (translation):  A r t i c l e 12. The f r e e d o m s and r i g h t s g u a r a n t e e d t o t h e p e o p l e by t h i s C o n s t i t u t i o n s h a l l be m a i n t a i n e d by t h e c o n s t a n t e n d e a v o r o f t h e p e o p l e , who s h a l l r e f r a i n f r o m any abuse o f t h e s e f r e e d o m s and r i g h t s and s h a l l always be responsible f o r u t i l i z i n g them f o r the p u b l i c welfare. [emphasis An the  example purpose  added]  of the l i m i t a t i o n of the p u b l i c  Code o f C r i m i n a l seizure  of p o s t a l  t o the s e c r e c y of communication f o r  welfare  i s found  in Article  Procedure,  which  authorizes  matters.  Article  100 p r o v i d e s  the  100 o f t h e search  (translation):  A r t i c l e 100. A c o u r t may s e i z e o r c a u s e t o be p r o d u c e d postal matters or papers relating to telegrams, sent out by o r t o t h e a c c u s e d , w h i c h a r e i n t h e c u s t o d y o r possession o f a Government office o r o f any o t h e r person t r a n s a c t i n g communication b u s i n e s s . (2) Postal matters or papers relating to telegrams other than those mentioned i n the preceding paragraph, w h i c h a r e i n t h e c u s t o d y o r p o s s e s s i o n o f a Government o f f i c e o r o f any o t h e r p e r s o n t r a n s a c t i n g c o m m u n i c a t i o n b u s i n e s s , may be s e i z e d o r c a u s e d t o be p r o d u c e d o n l y when t h e r e a r e c i r c u m s t a n c e s w h i c h w a r r a n t t h e i r b e i n g c o n s i d e r e d t o be c o n n e c t e d w i t h t h e c a s e i n hand. (3) When any d i s p o s i t i o n has b e e n e f f e c t e d under t h e p r o v i s i o n s o f t h e p r e c e d i n g two p a r a g r a p h s , n o t i c e o f such fact shall be g i v e n t o t h e s e n d e r or to the -  86  -  and  addressee. However, t h i s s h a l l not a p p l y i f t h e r e i s apprehension that s u c h n o t i f i c a t i o n may obstruct the proceedings. Similarly, would  the  not  within  violate  the  welfare. quoted for  Indeed,  the  should  be  Judgment  the  public  purpose  the  of  July  the  17,  1953,  principle, In my  public  form  for  public  surveillance  in  the  i f i t is  the  welfare.  the  need  protection  on  is,  of  in  of  electronic  investigation the  speech,  purpose  that  specified  the  of  communications  of  view,  welfare statutory  effective  privacy  crime  right.  Conclusion seen  which  electronic  above, of  no  private  surveillance  Japanese  and  police method  respect  to  the  Supreme  Court  appropriate investigative  there  specific  Procedure  enchanting  Court  limits for for  the  ruled  balance  interception  illegally  have  criminal  against  As  Criminal  to  of  which  4.  the  seems  private  freedom  for  Tokyo H i g h  restrictedly  investigation  in  limits  limitation  provisions  law,  the  of  constitutional  reasonable  however,the  police  the  purpose the  interception  reasonable  before,  within  police  the  statutory  well  criminal  from  Japan the  activity obtained  takes  is  With  the  view  such  of  allow  into  i n gross disregard  - 87  -  the  Code  to  the  of  this with  evidence,  "where  it  future  evidence of  present  Because,  deterring  the  suspicions,  resorting  obtained that  the  the  investigation. illegally  that  clarify  against  r e f r a i n from  standpoint to  under  provisions  Constitution. as  suspicions  communications  a d m i s s i b i l i t y of of  grave  proceedings,  might of  are  the  is  the not  illegal things  p r i n c i p l e of  the  warrant  requirement embodied,  inter a l i a ,  A r t i c l e 35 of the C o n s t i t u t i o n . . . , such inadmissible"333 the  private  ( t r a n s l a t i o n , emphasis  communications  Thus the  legal  Japan  needs  framework  of  the  police  a fresh  be  by  the p o l i c e  held that  under  the  e l e c t r o n i c s u r v e i l l a n c e law, the  the c o n f l i c t i n g  to o b t a i n  i s to  i n e v i d e n c e at t r i a l .  satisfying  warrant and b a l a n c i n g  evidence  added), i t i s l i k e l y  intercepted  p r e s e n t law would be i n a d m i s s i b l e  i n such p r o v i s i o n s as  requirement social  information  on  of  judicial  i n t e r e s t s ; the need  criminal  activities  and  the p r o t e c t i o n of the i n d i v i d u a l ' s r i g h t to p r i v a c y .  C.  Desirable  Contents  of  Electronic  Surveillance  Law  in  Japan  Assuming surveillance, this  final  Japan  what  needs  shall  question  be  of  controversial proposed seen up  field,  a  earlier,  scope  of  communications furnished weapon  the  Canadian  i n major  protecting  study,  the  crime  I  an  of the  would  Canadian  on  electronic law?  suggest  that  precedent  appropriate  As  model  i s an e l a b o r a t e police  restricting police  legal  conditions.  forces  with  investigation, while,  the at  of The  most the  this  f o r the  scheme which  interception  have sets  private law  has  effective same  time,  the c o n s t i t u t i o n a l r i g h t to p r i v a c y of the c i t i z e n s  -  88  -  to the  in  The P r o t e c t i o n of P r i v a c y A c t , as we  lawful  under  legislation  ingredients  is basically  law i n Japan.  in detail  the  the  P r o t e c t i o n of P r i v a c y A c t ,  new  by  virtue  of  the  deliberate  judicial  legal  interests,  control  framework  over  police  balancing  t h e two  w h i c h c a n be a model f o r o t h e r  In precedents  my  opinion,  shall  be  the f o l l o w i n g  essential  to  conduct. conflicting  democratic  elements  the  It  is a social  countries.  of the Canadian  Japanese  legislation  as  well. 1.  The  police  the  suspects  recipient is 2.  can l a w f u l l y  only  when  thereof  consent  i s obtained,  of  private  the  o r when  communications  originator a  judicial  or  of  intended  authorization  obtained. The  offences  i n respect  obtained  are  committed  by o r g a n i z e d  3.  intercept  limited  An a u t h o r i z a t i o n  application a.  there  i s made  to  which  certain  the a u t h o r i z a t i o n  serious  offences  c a n be  or  those  crime.  may be g i v e n is satisfied  are reasonable  (i) a  of  targetable  only  when t h e j u d g e  t o whom t h e  that  and p r o b a b l e serious  grounds t o b e l i e v e  offence  has  been  or  i s being  c o m m i t t e d , and (ii)  the person intercepted  whose  private  i s personally  communications involved  a r e t o be  i n the  offence,  and b.  one o f t h e f o l l o w i n g ( i ) other have (ii)  other  conditions  investigative  has been met;  procedures  have  been  tried  and  unlikely  to  failed. investigative  procedures  succeed.  - 89 -  are  (iii)  the  urgency  impractical offence A  4.  private  admissible  prior  A  prima  of  However, admit  this  to  be  such  of  the  An  authorization  and  is  subject the  required  for  The  fact  after  the  the  and  of  the  the  traditions  valid  must  who  be  of  the  procedures.  lawful order  be  by  interception for  the  received by  is  lawfully  in  the  evidence,  details  unlawful  the  of  the  interception  originator  or  introduction of  evidence  is  was  only  on  due  evidence.  trial  judge  relevant to  a  is  intended  in  the  only  be  satisfied  to  the  the  was  difference some  a  certain In  that  authorization  became  other  for  application.  and  defect  have  lawfully  hand,  to the  of  form  particular  -  of  the to  certain  time,  grant  conditions  met.  is  of  be  the as  electronic notified  period  of  of  time  inevitable  that  terminated.  it  between  a  same  to  been  object  within  period  order  the  authorization  interception  interception  On because  is  original  the  would  investigation  discretion  the  it  accused.  its  the  where  pursuant  of  to  unless  renewal  judge  person  surveillance the  to  in  the  that  procedure.  6.  renewal,  to  interception  in  by  secured  to  the  accompanied  to  subject  evidence  irregularity  7.  given  such  investigative  However,  consented is  other  prosecution  is  out  secured  communication  has  unlawfulness or  only  inadmissible,  recipient  matter  communication  the  has  private facie  carry  evidence,  communication 5.  to  using  private  notice  the  communication  as  intercepted  of  seems both  elements  90 -  to  be  countries of  the  in  legal  Canadian  systems  model  are  not  suitable  f o r the Japanese  be  modified.  Such  counterpart,  elements  shall  and t h e r e f o r e  be  pointed  out  should i n the  following.  Firstly, except  in  case  authorization province, agents. have  to  Not b e i n g ask  the  General  police  Criminal  police,  after  this  obtained,336  Neither  is  to  be  the p o l i c e  the  with  the  within  prosecutor  their  shall and  under  chief  law  the  Solicitor  under  t h e Code criminal  Although  send  the  the case to  other  evidence  t o the prosecutor f o r independent  responsible  - 91 -  by t h e  come  conduct  prosecutor.335  are not accountable  activities  of  to  written  fact  t h e RCMP, a s t h e  the p o l i c e ,  an i n v e s t i g a t i o n ,  the  an  i n Canada,  the  the d i r e c t i o n  authority  make  t o make s u r e o f  f o r c e s 334  and where  of  the  of the p o l i c e  surveillance  police  I n J a p a n , however,  of  provided  system  of the p r o v i n c e ,  together  the  i s i n t h e hands are  to  i n spite  General,  completing  investigative  Minister  Attorney  are given  of  the p o l i c e  electronic  i s under  General  of the a p p l i c a n t ,  i s an a p p r o p r i a t e  the  judicial  designated  relevant  and m u n i c i p a l  that  or t h e i r  surveillance,  of  provides  for a  Attorney  Canada,  materials  independent  prosecutor  the  information  Procedure,  investigation  of  of  Act  application  the  agent  force,  o f Canada.  by  the status  of  officer  an  General  operation  supervision  of Privacy  given  the p r o v i n c i a l  federal  the  made  supporting  Probably,  enforcement  the  be  for electronic  deliberate  where  of  emergency  the S o l i c i t o r  a l l the  police.  the  Protection  a l l the necessary  and  the  of  must  application that  the  for  authority.  the  police  investigation. judicial bring  Therefore,  authorization  about  criminal  is  considerable  the  prosecutors  with  the  police  as  democratic 1948,338  such  my  investigative  authority  make  the  sure  of  Japan,  the  rank of  National Safety  judicial  the  the  As  be  Police  police before  for  criminal  and  Code o f  the in  the  that  order  operation the  and,  at  of  restricted  to  Superintendent  the or  Commission  by  the  Procedure  in  would  the the  judicial  higher,  or  created  for  the  II  independent  not  be  independent same t i m e ,  electronic  applicant  War  in  investigation  authority keep  the  would  authority  the  was  to  it  World  Criminal  police  police,  of  Safety  point  is  the  earlier  in  this  authorization court  with  little  decisions  a l l the  police,  believe,  second seen  surveillance." had  should  the  for  to  surveillance the  judicial  police  officer  designated  by  Prefectural  the  Public  Commission.339  itself.  judge  of  status  Public  The  and  in  deliberate  the  authorization at  the  applicant  prosecutor,  investigation  of  opinion,  the  that  authority  criminal  interference  In  in  assistants,337  reformation  accepted.  in  the  of the  Considering  had  in  to  interference  their  authority  status  limited  investigation.  only  police  i f the  can It  thereon  necessary  by  seems  me  this  in  to  that  accepting  - 92  -  so  be  authorization scheme  the Act  police provide  the  that  the  objects  novelty imported  of  of  Privacy  Canadian  the  scheme c a n n o t  the  "The  information the  the  Protection  is this:  choose  of  study, the  properly  difficulty  however,  envisaged  scheme  of  judge,  electronic  jurisprudence of  the  not  has  scheme.  i n t o Japan  I  where  there  is  no  tradition  investigative common  of  the  they  the  to  permit  to  him  still  a search  warrant  issued  same  the until  Thus,  warrant  In can  sending  Japan, keep  them  Canada  authorization objects shall  of  order,  determine  those  that a  search  Japan,  adequacy f o r the  after  of  the  arrest  - 93  that  this:  surveillance,  and  order, the  it.  the  in  the  arrest  In  Canada,  in  the  i s a permit,  and  the  own  custody of  judicial  the  scheme  the  police  of  and  the search  the  roles  judicial  choose  authorizing of  the  decide  completion  the  a  justice  peace  can  a  criminal  the  their  the  but  s e i z e d under  before  in  intent  warrant  -  an  justice  differences  be  On  article  articles  I believe  should  jurisdiction.  obtained  warrant  directing  answer  of  of  In  the  i s not  justice the  prosecutor  those  having  brought  the  to  purpose  be  hand,  judiciary.  can  any  the  Japan  the  again,  they  as  supervision  justice  and  some o t h e r so  the  the  having  created  state authority,  to execute  delay,  the  other  the  not  seized  With  electronic  same scheme as  police,  the  of by  the  the  to  and in  or  of  warrant  discretion  division  investigation.343 between  the  on  that  for  inherited  direct  justice  arrest  i s a l s o an  territorial  police  the  so  the  under  part  order  over  were  servants  other  suspects  Canada  i n Japan,  an  preside  police  were  suspects  must, w i t h o u t  the  disposition.  is  some  the  have  and  the  i n J a p a n an  warrant,  who  the  the  integral  been  or  arrest  warrant  an  courts  police.  which  warrant  investigation.342  search  as  the  the  peace.341  arrest  hand,  of in  never  arrest  before  other  the  created  an  which  citizens,340  of  have  police  charge the  of  were  Canada, the  tradition  justice  police and  activities  law  delegates  in  the judge  police; warrant.  the  Besides Supreme  Court  of  authorizing  the  manner  of  also  of  the  the  role  manner  of  the  police  and  the  the  police's  require  the  an  and  the  The  arbitrator  role  that  supervisor  of  the  authorizing recognized  the  judge in  interception  the  be  the  reasonable Thus,  and  of  made  scrutinize  be  needs  in  the  neutral  and  the  i t is  by  the  adequacy law by  at the  of  should  virtue  the  a the  suspect,  of the  time  of  adequacy  of  manner  of  the  the  the  hands and  of  the  impartial  citizen's  rights,  investigation.  the  supervisory in  the  Canada  sweeping  the  basket  clause  no  the  judge's  supervisory  to  attach  less  would  - 94 -  is,  power  usually  I  in  the  again,  chosen  the  clear  to  accept  Japanese  initiative  police for  be  room-bugging  secured  police's  containing  deny  be  strictly  compensation  would  authorization.  shall  hand,  i f we  be  the  other  Therefore,  do  j u d g e can  Thus,  over  the  to  Here,  determine  premises  thereof  police  clause,  to  to  the  the  authorization  should  the role  however,  judge  investigation.  be  respect  Japan, a  target,  supervisory  with  In  expect  intend  should  between  to  the  the  police  Specifically,  reasons so  the  shall  into  of  recognized  surveillance  police  judge  On  single  criminal  investigation  police.  the  over  o p e r a t i o n . 344  criminal  not  unfair  entry  selection  surveillance.  electronic  application,  such  over  and  judge's  the  Lyons  judge  i f the  surreptitious  of  in  intention.  that  intention  Canada  electronic  irrelevant  supervisory  issue  minimization role  intrusive  propose  that  role in  of a  sense,  attached and  the  to  a  itinerant  requirement. in  Japan,  power the  to  it an  Japanese  electronic specify, whose  surveillance among  other  private  particulars  clause.  the  conclusion  Canadian  the  with  Act  weapon  it  upon  police in  the  required,  hands and  the  of  more  the  the  to  be  this  of  the  in  police.  of  the  I  to  choose  surveillance Japanese  - 95  -  the  shall  the  cost  of  believe  that  rules  with  target, be  of  powerful  authorization  the  should  police  independence.  Protection  restricting an  a  following  most  investigation."  be  III.  i n v e s t i g a t i o n by  at  to  may  contain  the  the  obtained  more  the  interception  Title  I drew  criminal  Japan  persons and  law  duty,  initiative  The  the  2815(5) o f  crime-fighting  criminal  electronic  that  impact  police  the  itinerant  study,  legal  of  communications  or  Section  authorization  intercepted,  private  i n t r u s i v e power a t t a c h e d  while  the  the  "The  circumstances  to  of  in  of  the  particulars  preferable  operation  forces:  that  clause  like  to  performing  are  which  be  respect  under  manner  would  the  the  basket  half  independence  be  no  first  their  respect  at  f o r minimization,  In  Privacy  things,345  place  allowing  Also,  provision  require  communications  of  intercepted,  law  place  secured enjoy  shall  in  less  and the  power  V.  CONCLUSION  What legal  i s law?  studies,  society  Professor  i s the s o c i e t y ' s  tensions,  that  as a member  which  the d e l i c a t e  the  t h e one hand strong  S.M.  attempt  balance  i t i s part  Thus,  a human s o c i e t y must,  resolving  interests. In  this  to  sense,  framework  be  basic  human  between  the i n d i v i d u a l In s p i t e o f  i n d i v i d u a l , no  to l i v e  to survive,  on  in a  one c a n  community.  develop  a system  i n d i v i d u a l i n t e r e s t s and community of r e s o l v i n g  procedural  two  effective  to  those  conflicts.  law r e g u l a t i n g  electronic  o f t h e name  fundamental core  crime  interests:  concept  of  prevention,  protected  from  t h e most  o f law.  the  that  crime.  It i s a the r i g h t  dignity  is,a  Thus,  careful balancing  of  widely  electronic of competing  interests.  Privacy  has l o n g  and i t h a s b e e n g i v e n  protection  i n order  i s , the  law d e s e r v e s  defensible  West,  as an  nature  the worthiest  balancing  and  desire  surveillance  be  that  individuals,  yet  o f Man's  the c r i m i n a l  may  privacy,  shared  on Man  between  t h e most  on t h e o t h e r . "346  The law i s t h e s y s t e m  surveillance legal  conflicts  of  " t h e law i n any  The law i s t h e k n i f e - e d g e  i s maintained  placed  that  states:  question  o f man a s an i n d i v i d u a l , and h i s  and t h e s o c i e t y  emphasis  fundamental  to resolve  o f a community.  doubt  of  this  Waddams  between t h e needs  needs  on  Answering  against  any k i n d  been  a highly  valued  interest  i n the  by t h e C a n a d i a n c o u r t s  constitutional  of unreasonable  and s e i z u r e by  - 96 -  search  the  state.  the  In  people  Japan,  with  thereto,  protected  interest.  contrary,  the  the  traditional  privacy  recently  Despite  an  Japanese  constitutional  all  courts,  protection  emerged  old  case  too,  indifference  are  against  as  a  legally  authority  likely  to  of  to  the  afford  unregulated  it  electronic  surveillance.  In balance  the  Canada police  Protection  of  decided  scope  a  police  of  privacy  of  impacts undue  upon  the  criminal police  crime-fighting criminal  police  judicial as  at  the  framework  resulted  30,  1974, police  After  to  have  weapon  a  however,  forces  in  otherwise,  powerful cost  of  private  decade  crime  in  their  to  negative about  operation In  of the  right  had  the  study.  weapon  has  i t brought  in  in this  which  major  has  that  the  furnished  in  to  in  of  constitutional  law,  or  the  by  the  detailed  most  right  June  seems  powerful  Canadian  duty,  on  legal  conditions.  protecting  the  privacy  now  The  a  short,  of the  performing  the  independence  in  investigation.  Up resorting  to to  cooperative symbolized which  most  investigation, obtained  law  citizens.  interference,  up  interception  the  while  set  the  restricting  the  the  to  proclaimed  lawful  practice,  investigation,  against  Act  under  with  attempt  need  Privacy  communications confusing  the  this  time  electronic  attitude by  the  Junkai  of  for  police  have  surveillance. the  Renraku,  made i t p o s s i b l e  Japanese  the  citizens supra, police  - 97  -  to  The  toward  seems  refrained  to  be  traditional  the the  from  police main  m a i n t a i n peace  and  as  factor order  in  the country  without  investigation. society and  However,  accompanied  getting  relationship seems  situation  will  modification  When we in  Japan,  police, members police that  take  with  introduce power  than  Japanese  police  generally  acceptable.  a supplemental  police, a to  into  account  Therefore, i t crime  police  the time  can, with  new  comes, I  precedent to the necessary  be an a p p r o p r i a t e  of  are able  and t h e u n i q u e  justice  system  an e l e c t r o n i c in  the c i t i z e n s  the p o l i c e  Canada  strategies Then,  and l i m i t e d  in  status  model  while  electronic tool  - 98 -  emerged  identify  my  proposal with  less  traditional will  surveillance  be will  f o r t h e Japanese  be s e e n by J a p a n e s e  privacy.  to  investigation  investigative  l i m i t a t i o n t o the newly  toward t h e  system  preserving  criminal  rate  of the Japanese  i n the country,  surveillance  I hope,  and a t t h e same t i m e w i l l  reasonable  cooperative  t h e r e l a t i v e l y low c r i m e  attitude  which  crime,  i n the c r i m i n a l  intrusive  the  the Canadian  study,  from  i t seems t o be  the Japanese When  interests,  in this  residents  counterpart.  of organized  Japan  Act,  of the  the d e t e r i o r a t i n g  surveillance.  of Privacy  criminal  resulting  and t h e c i t i z e n s .  to give  the cooperative  the ease  preserve  law makers  as p r o p o s e d  of the  reformation,  to  of  urbanization  consciousness  future  conflicting  method  anonymity  i n the near  electronic  the Japanese  rapid  democratic  the p o l i c e  force  t h e two  the  difficult  the Protection  balance  effective  of the l e g a l  more  sometime  including  believe,  for  and  between  that  tools  with  of the post-war  more  this  by t h e i n c r e a s i n g  the westernization  permeation  be  using  c i t i z e n s as  constitutional  right  N O T E S 1.  1973-74 ( C a n . ) , c.50.  2.  D.H. F l a h e r t y , P r o t e c t i n g S e r v i c e s ( 1 9 8 5 ) , a t 6.  3.  Ibid.  Privacy  i n Two-Way E l e c t r o n i c  4. M.R. K o n v i t z , P r i v a c y And The Law: A Philosophical (1966) 31 L. and C o n t . P r o b . 2 72, a t 2 72. 5.  I d . a t 272-276.  6. L.C. V e l e c k y , The C o n c e p t ( 1 9 7 8 ) , a t 16. 7.  Prelude  of Privacy,  i n J . B . Young,  Privacy  Ibid.  8. (1968) 31 L. and C o n t .  P r o b . 281.  9. I d . a t 290. 10.  Ibid.  11.  I d . a t 293.  12.  (1890) 4 H a r v . L. Rev. 193.  13.  D i s s e n t i n g Judgment i n O l m s t e d (1928, U . S . S . C ) , a t 478.  14.  The i n c r e a s i n g t h r e a t t o p r i v a c y b r o u g h t about by t h e d e v e l o p m e n t o f modern t e c h n o l o g y has b e e n d e s c i b e d by A l a n F. W e s t i n as f o l l o w s i n S c i e n c e , P r i v a c y , and Freedom: Issues and P r o p o s a l s f o r The 1 9 7 0 * 5 (1966) 66 C o l . L. Rev. 1003, a t 1050:  v. U n i t e d  States  277 U.S. 438  Man's a b i l i t y t o f o l l o w t h e movements and m o n i t o r t h e p r i v a t e c o n d u c t o f h i s f e l l o w human b e i n g s has been g r e a t l y expanded by t h e d e v e l o p m e n t o f new s u r v e i l l a n c e d e v i c e s and t e c h n i q u e s . P h y s i c a l s u r v e i l l a n c e has been a i d e d by i n v e n t i o n s s u c h as s u b m i n i a t u r e t a g s and t r a n s m i t t e r s , long range cameras, d i r e c t i o n a l m i c r o p h o n e s , and a g r e a t v a r i e t y o f s o p h i s t i c a t e d " b u g s " and w i r e t a p p i n g i n s t r u m e n t s . Access to the l i f e h i s t o r y o f i n d i v i d u a l s has been made p o s s i b l e by t h e e v e r i n c r e a s i n g amount and v a r i e t y o f r e c o r d s k e p t by government and i n d u s t r y , t h e e f f i c i e n c y w i t h w h i c h computers can h a n d l e these r e c o r d s , the i n c r e a s i n g t e n d e n c y toward d a t a s h a r i n g and c e n t r a l i z a t i o n , and recent developments l e a d i n g to replacement of p r i v a t e  - 99 -  money and c h e c k t r a n s a c t i o n s w i t h f u l l y r e c o r d e d , computerized c r e d i t systems. D i s c o v e r y o f an i n d i v i d u a l ' s i n n e r m o s t s e c r e t s - h i s f e a r s , hopes, and p r o b l e m s - f o r p u r p o s e s s u c h as p e r s o n n e l s e l e c t i o n and l o y a l t y - t e s t i n g has been f a c i l i t a t e d by t h e s p r e a d o f p s y c h o l o g i c a l s u r v e i l l a n c e t e c h n i q u e s s u c h as p o l y g r a p h and p e r s o n a l i t y t e s t s . 15.  (1972) 62 Am J u r 2d 678.  16.  S c h u y l e r v. C u r t i s (N.Y.S.C.).  17.  171 N.Y.  18.  See W.P. K e e t o n , P r o s s e r and K e e t o n ed.) ( 1 9 8 4 ) , a t 850-851.  19.  122 Ga. 190, 50 S.E. 68.  20.  See K e e t o n ,  21.  E.g. P. B u r n s , The Law and P r i v a c y : (1976) 54 Can. B a r Rev. 1, a t 12.  22.  J.G. F l e m i n g , The Law o f T o r t s  e t a l . (1891) 15 N.Y. Supp.  787  538, 64 N.E. 442 (N.Y.C.A.).  supra, note  on The Law o f T o r t s ( 5 t h  18, a t 851. The C a n a d i a n  ( 6 t h ed.) ( 1 9 8 3 ) ,  Experience a t 568.  23. See B u r n s , s u p r a , n o t e 21; D. G i b s o n , Common Law P r o t e c t i o n of P r i v a c y ( 1 9 7 7 ) , i n L. K l a r , S t u d i e s i n C a n a d i a n T o r t Law, Ch. 12; O n t a r i o Law Reform C o m m i s s i o n , R e p o r t on P r o t e c t i o n of P r i v a c y i n O n t a r i o ( P r e l i m i n a r y S t u d y ) ( 1 9 6 8 ) . 24.  The s e c o n d f e d e r a l l e g i s l a t i o n i s t h e P r i v a c y A c t , 1980-81-82-83, c . I I I , S c h e u l e I I , t h e p u r p o s e o f w h i c h i s " t o e x t e n d t h e p r e s e n t laws o f Canada t h a t p r o t e c t t h e p r i v a c y o f i n d i v i d u a l s w i t h r e s p e c t t o p e r s o n a l i n f o r m a t i o n about t h e m s e l v e s h e l d by a government i n s t i t u t i o n and t h a t p r o v i d e i n d i v i d u a l s w i t h a r i g h t of a c c e s s t o such i n f o r m a t i o n " (Section 2).  25.  The B r i t i s h C o l u m b i a P r i v a c y A c t , S.B.C., 1968, c.39; t h e M a n i t o b a P r i v a c y A c t , S.M., 1970, c.74; and t h e S a s k a t c h e w a n P r i v a c y A c t , S.S., 1974, c.80. These laws do n o t c o v e r c o n d u c t o f a peace o f f i c e r a c t i n g i n t h e c o u r s e o f h i s duties.  26.  Burns,  27.  I d . , a t 10. Rev. 383.  28.  See A . F . W e s t i n ,  29.  389 U.S. 347 (1967,  30.  I d . a t 351.  s u p r a , note  21 and 23, a t 64.  See a l s o W.L. Privacy  Prosser, Privacy  and Freedom  U.S.S.C).  - 100 -  (1960) 48 C a l . L .  (1967) Ch.6  31.  [1984] 2 S.C.R. 145, 14 C.C.C. ( 3 d . )  32.  P a r t I, C o n s t i t u t i o n 1982, c . l l ( U . K . ) .  33.  Jurisuto  34.  Quebec, R e p o r t Constitutional  35.  E.g. A. S c h a f e r , P r i v a c y : A P h i l o s o p h i c a l O v e r v i e w , i n D. G i b s o n A s p e c t s o f P r i v a c y Law (1980) C h . l , a t 15. S e e a l s o E. Goffman A s y l u m s : E s s a y s on t h e S o c i a l S i t u a t i o n o f M e n t a l P a t i e n t s and O t h e r Inmates ( 1 9 6 8 ) .  36.  T.M. C o o l e y , A T r e a t i s e a t 29.  37. W e s t i n ,  97.  A c t , 1982, S c h e d u l e  B t o t h e Canada A c t ,  (No.760) 39 ( 1 9 8 2 ) . o f t h e R o y a l Commission o f I n q u i r y P r o b l e m s (1956) V o l . 2 , a t 113.  supra, note  on t h e Law o f T o r t s ,  on  2d e d . ( 1 8 8 8 ) ,  28, a t 7.  38.  R.B. P a r k e r , A D e f i n i t i o n o f P r i v a c y R e v i e w 275, a t 283-284.  39.  E.g. D.H. F l a h e r t y , P r o t e c t i n g P r i v a c y i n P o l i c e I n f o r m a t i o n Systems: D a t a P r o t e c t i o n i n The C a n a d i a n P o l i c e I n f o r m a t i o n C e n t e r (1986) 36 U. o f T o r o n t o L. J o u r . 116. a t 118. See a l s o E . J . B l o u s t e i n , P r i v a c y as an A s p e c t o f Human D i g n i t y : An Answer t o Dean P r o s s e r , i n I n d i v i d u a l and Group P r i v a c y (1978) C h . l .  40.  J . C . S m i t h , A j a s e and O e d i p u s : J a p a n e s e and W e s t e r n Ideas o f The S e l f i n L e g a l C o n s c i o u s n e s s (1986) 20 UBC L. Rev. 341, a t 355.  41.  T.P. K a s u l i s ,  42.  G.A. R e s . 217 ( i i i ) ,  43.  Dai Nippon  44.  See L.W. B e e r , Interpretation  45.  T. I s h i d a , F u n d a m e n t a l Human R i g h t s and The Development o f L e g a l Thought i n J a p a n (197T1 8 Law i n J a p a n 39, a t ,3 9.  46. W e s t i n ,  Zen A c t i o n  Teikoku  Zen P e r s o n  (1974) 27 R u t g e r s  (1981),  Law  a t 44.  d a t e d December 10, 1948.  Kenpo.  J a p a n ' s C o n s t i t u t i o n a l System and I t s J u d i c i a l (1984) 17 Law i n J a p a n 8.  supra, note  14, a t 1050.  47.  15 Kakyu M i n s h u  (No.9) 2317.  48.  23 K e i Shu (No.12) 1625.  49.  H. I t o h and L.W. B e e r , The C o n s t i t u t i o n a l Case Law o f J a p a n : S e l e c t e d Supreme C o u r t D e c i s i o n s , 1961-79 ( 1 9 7 8 ) , a t 180-181. - 101 -  50. Commission o f I n q u i r y C o n c e r n i n g C e r t a i n A c t i v i t i e s of t h e R o y a l C a n a d i a n Mounted P o l i c e , Second R e p o r t -- Volume 1; Freedom and S e c u r i t y u n d e r t h e Law ( 1 9 8 1 ) . 51.  I b i d , a t 149.  52. E.P. C r a i g , E l e c t r o n i c S u r v e i l l a n c e : (1975) 24 U.N.B.L.J. 29, a t 33. 53.  Setting  the  Limits  Ibid.  54. See i d . a t 29. 55. See W.  K e l l y and N. K e l l y , P o l i c i n g i n Canada  (1976),  a t 397.  56. Re C o p e l a n d and Adamson e t a l . (1972) 28 D.L.R. (3d) 26 ( O n t . H . C ) , a t 28. 57. See Commission of I n q u i r y C o n c e r n i n g C e r t a i n A c t i v i t i e s of t h e R o y a l C a n a d i a n Mounted P o l i c e , s u p r a , n o t e 50 and 51 at 156. 58. See Commission of I n q u i r y C o n c e r n i n g C e r t a i n A c t i v i t i e s of the R o y a l C a n a d i a n Mounted P o l i c e , T h i r d R e p o r t : C e r t a i n R.C.M.P. A c t i v i t i e s and t h e Q u e s t i o n o f Government Knowledge (1981) a t 111-124. 59. See C r a i g ,  supra, note  52-54,  a t 34.  60. S.M. Beck, E l e c t r o n i c S u r v e i l l a n c e and t h e A d m i n i s t r a t i o n C r i m i n a l J u s t i c e (1968) 46 Can. B a r Rev. 645, a t 649. 61. See D. Watt, Law a t 86.  of E l e c t r o n i c S u r v e i l l a n c e  i n Canada  of  (1979),  62. See Commission of I n q u i r y C o n c e r n i n g C e r t a i n A c t i v i t i e s o f t h e R o y a l C a n a d i a n Mounted P o l i c e , s u p r a , n o t e 50, 51 and 57, at 149-150. 65. See R . J . D e l i s l e , E v i d e n t i a r y I m p l i c a t i o n s o f B i l l C-176 i n M. Manning,The P r o t e c t i o n o f P r i v a c y A c t ( 1 9 7 4 ) , a t 120. 64. See R.  v. C o t r o n i ;  TS7C. C . ) , a t 204.  65. My  interview  66. C r a i g ,  Papalia  v. R.  with Vancouver P o l i c e  supra, note  52-54 and  1880,  Department.  59, a t 54.  67. C o n t r a , i d . a t 29. 68. S.C.  (1979) 7 C R .  ch.67.  - 102  -  (5d) 185  69. S u p r a , n o t e 56. 70. See Commission of I n q u i r y C o n c e r n i n g C e r t a i n A c t i v i t i e s o f t h e R o y a l C a n a d i a n Mounted P o l i c e , s u p r a , n o t e 58, a t 110. 71. R.S.M. 1970, c. T40. 72. R.S.A. 1970, c.12. 73. See Commission of I n q u i r y C o n c e r n i n g C e r t a i n A c t i v i t i e s o f t h e R o y a l C a n a d i a n Mounted P o l i c e , s u p r a , n o t e 50, 51, 57 and 62, a t 155. 74. See Canada, R e p o r t o f t h e C a n a d i a n Committee on C o r r e c t i o n s , Toward. U n i t y : C r i m i n a l J u s t i c e and C o r r e c t i o n s ( 1 9 6 9 ) , a t 82. 75.  ( 1 9 5 6 ) , 1 9 W.W.R. 661 (Man. Q.B.).  76. I d . a t 664. 77.  [1965] S.C.R. 155.  78.  (1967) 3 C.C.C. 48 ( O n t . C . A . ) .  79.  I d ^ a t 50.  80.  IcL a t 51.  81. See R e g i n a v. P a s s (1979) 47 C.C.C. (2d) 194 (Man. Q.B.) a t 211; R e g i n a v. Lyons (1982) 69 C.C.C. ( 2 d ) 318 (B.C.C.A.) a t 327. 82.  (1975) 26 C.C.C. (2d) 388 ( O n t . C.A.).  83. Lo\ a t 391. 84. C r i m i n a l 85.  Ibid,  Code,  s.178.11.  s.178.16.  86. I b i d , s . 1 7 8 . 1 1 ( 2 ) . 87.  Ibid. s.l78.12(l)(e).  88. P. B u r n s , A R e t r o s p e c t i v e View o f t h e P r o t e c t i o n o f P r i v a c y A c t : A F r a g i l e Rede i s Recked (.1979) 13 U.B.C.L.Rev. 123, a t 123. 89. R.S.C. 1970, c. C-34. 90. C r i m i n a l 91. I b i d ,  Code,  s.178.11.  s.178.2.  - 103 -  92.  Ibid.  s.178.18.  93.  Ibid.  s.178.11(2).  94.  Ibid.  s.178.16.  95.  (1977) 32 C.C.C. (2d) 363  96.  Id.  97.  R.S.C .  (Ont. C  a t 369 1970, c.  C-38.  98. Crown L i a b i l i t y A c t , s.7.2 99. R.S.C . 1970, c.  and  s.  0-3.  100. O f f i c i a l  S e c r e t s A c t , s.16  101. 1976- 77,  c.53.  •  102. 1980- 81-82, c.125. 103. 1984, c. 21. 104. 1985 , c. 19. 105. Watt, s u p r a , n o t e 61., at 106. C r i m i n a l  Code,  107.  Ibid.  s.178.1.  108.  Ibid.  s.178.12.  s.178. 11(2)  109. I b i d .  s.l78.13(l)(a).  110.  S.178.13(l)(b).  Ibid.  111. I b i d .  s.178.13.(2)(a) •  112.  Ibid.  s.178.13(2)(b).  113.  Ibid.  S.178.13(2)(c).  114.  Ibid.  S.178.13(2)(c).  115.  Ibid.  S.178.13(2)(c).  116.  Ibid.  s.l78.13(2)(e).  117. I b i d .  S.178.13(2)(d).  118.  s.l78.13(3)and  Ibid.  2 -3. •  s.178 . 1 3 ( 4 ) .  - 104 -  119.  Ibid,  120.  Ibid.  s.l78.16(l)(a).  121.  Ibid,  s.178.16(4).  122.  Ibid,  s.178.16(1).  123.  Ibid,  s.178.16(3).  124.  Ibid,  s.178.16(1).  125.  Ibid,  s.178.16(2).  126.  Ibid,  s.178.23(1).  127.  Ibid,  s.178.12(3).  128.  Ibid,  s.178.23(4).  129.  See R e g i n a v. Welsh 370.  130.  See Watt,  131.  I d ^ a t 28.  132.  (1976) 31 C.C.C. ( 2 d ) 245 ( O n t . C o . C t . ) .  133.  IcL a t 247.  134.  s.178.15.  and I a n n u z z i ( N o . 6 ) ,  95, a t  s u p r a , n o t e 61 and 105, a t 27-28.  See R e g i n a v . C a r o t h e r s e t a l . , u n r e p o r t e d , June 15, 1978 (B.C. C o . C t . J , Van. Reg. #CC770553; R e g i n a v. Samson e t a l . , i n f r a , n o t e 135.  135.  (1983) 9 C.C.C. ( 3 d ) 194 ( O n t . C . A . ) .  136.  I d ^ a t 204.  137.  My i n t e r v i e w w i t h t h e RCMP.  138.  supra, note  See R e g i n a v. C a r o t h e r s e t a l . , s u p r a , n o t e 134; R e g i n a v. M i l l e r and Thomas ( N o . l ) (,1976) 28 C.C.C. ( 2 d ) 94 ( B . C . C o . C t . ) ; Goldman v. The Queen, i n f r a , n o t e 139. C o n t r a R e g i n a v . Ho, u n r e p o r t e d , November 2, 1976 (B.C. C o . C t . ) , Van. Reg. #CC760644.  139.  [1980]  1 S.C.R. 976, 51 C.C.C. ( 2 d ) 1.  140.  Id^_ a t 992, 51 C.C.C. ( 2 d ) a t 13-14.  141.  P. B u r n s ,  142.  (1978) 38 C.C.C. ( 2 d ) 212 (Ont.C.A.)  supra, note  88, a t 126.  - 105 -  143.  Id.  at  217.  144.  Goldman v. The Queen, s u p r a , n o t e (2d) a t 17-18.  145.  An e x t e n s i o n t e l e p h o n e i s an " e l e c t r o m a g n e t i c , acoustic, m e c h a n i c a l o r o t h e r d e v i c e " . See R e g i n a v. Dunn (1975) 28 C.C.C. (2d) 538, 33 C.R.N.S. 299 (N.S. Co.Ct.).  146.  Supra, note  147.  The e s s e n c e o f t h e r e a s o n i n g o f M c l n t y r e J . f o r t h e majority o f the c o u r t a p p e a r s i n the f o l l o w i n g p a s s a g e i n [1980] 1 S.C.R. a t 994-995, 51 C.C.C. (2d) a t 15-16:  138-140 and  138-140, a t  997,  51  C.C.C.  144.  I t i s e l e m e n t a r y t o say t h a t the C o u r t s must d i s c e r n and a p p l y t h e l e g i s l a t i v e i n t e n t when c o n s t r u i n g the s t a t u t e s . The i n t e n t must be f o u n d upon an e x a m i n a t i o n o f t h e words employed i n the enactment f o r i t i s t h e i n t e n t w h i c h the L e g i s l a t u r e e x p r e s s e d w h i c h must have e f f e c t . It i s f o r t h i s r e a s o n t h a t t h e meaning o f s t a t u t o r y l a n g u a g e must be examined and on o c c a s i o n s f i n e d i s t i n c t i o n s must be made. In my v i e w , the d i f f e r e n c e between the word c o n v e r s a t i o n and the word c o m m u n i c a t i o n i s , i n the c o n t e x t of t h i s s t a t u t o r y p r o v i s i o n , s i g n i f i c a n t . A communication i n v o l v e s t h e p a s s i n g o f t h o u g h t s , i d e a s , words o r i n f o r m a t i o n from one p e r s o n t o a n o t h e r . C o n v e r s a t i o n i s a b r o a d e r term and i t would i n c l u d e , as a l l c o n v e r s a t i o n s do, an i n t e r c h a n g e of a s e r i e s of s e p a r a t e c o m m u n i c a t i o n s . It i s c o n s i s t e n t w i t h the scheme o f P a r t IV.1, i n my v i e w , t o c o n s i d e r t h a t the o r i g i n a t o r of a p r i v a t e c o m m u n i c a t i o n w i t h i n the meaning o f s. 178.1 is t h e p e r s o n who makes t h e remark o r s e r i e s o f r e m a r k s w h i c h the Crown s e e k s t o adduce i n evidence. If a person, w i t h a r e a s o n a b l e e x p e c t a t i o n of p r i v a c y , s p e a k i n g i n an e l e c t r o n i c a l l y i n t e r c e p t e d c o n v e r s a t i o n makes s t a t e m e n t s w h i c h the Crown s e e k s t o use against him, he h a s , i n my v i e w , as t h e o r i g i n a t o r of t h o s e s t a t e m e n t s , t h e p r o t e c t i o n of t h e p r i v a c y p r o v i s i o n s of t h e C r i m i n a l Code b e c a u s e t h o s e s t a t e m e n t s c o n s t i t u t e p r i v a t e c o m m u n i c a t i o n s upon h i s p a r t and t h e i r a d m i s s i b i l i t y at any s u b s e q u e n t t r i a l w i l l depend upon the p r o v i s i o n s of P a r t IV.1 o f the C r i m i n a l Code. I do not f i n d t h i s a s t r a i n e d or u n r e a l i s t i c i n t e r p r e t a t i o n o f t h e words of the s t a t u t e . In f a c t , where a p o l i c e o f f i c e r or p o l i c e agent p a r t i c i p a t e s i n a c o n v e r s a t i o n w i t h a s u s p e c t knowing t h a t i t i s b e i n g i n t e r c e p t e d e l e c t r o n i c a l l y and h e a r s the s u s p e c t make hoped f o r i n c u l p a t o r y s t a t e m e n t s o f  - 106  -  147.  Quote c o n t i n u e d : i m p o r t a n c e t o t h e Crown's c a s e , I am u n a b l e t o c o n s i d e r t h e p o l i c e o f f i c e r t o be t h e o r i g i n a t o r o f t h e v e r y s t a t e m e n t o r s t a t e m e n t s he was s e e k i n g to o b t a i n . I t f o l l o w s from what I have s a i d t h a t t h e A c t a p p l i e s here to those statements i n the telephone c o n v e r s a t i o n and p e r s o n a l c o n v e r s a t i o n between Dwyer and t h e a p p e l l a n t w h i c h were o r i g i n a t e d by the a p p e l l a n t .  148.  (1975) 25 C.C.C. ( 2 d ) 262 ( A l t a .  C.A.).  149.  (1978) 15 C.R. ( 3 d ) 7, 47 C.C.C. ( 2 d ) 457  150.  See W a t t , s u p r a , n o t e  151.  See R e g i n a v. G r a n t . H i g g i n s and Sharma (1979) 48 C.C.C. "CTd)504 (B.C.Co.Ct. J ; R. v. N e w a l l e t a l . (No. 1 ) (1982) 67 C.C.C. ( 2 d ) 431 ( B . C . S . C . ) .  (B.C.S.C).  61, 105 and 130, a t 35.  152.  Ibid.  153.  I d . a t 440.  154.  (1978) 43 C.C.C. ( 2 d ) 356 ( O n t .  155.  See R e g i n a v. McQueen, s u p r a , n o t e 148, p e r Clement J.A. ; R e g i n a v. Watson, s u p r a , n o t e 132 and 133. C o n t r a , R e g i n a v. B o u t i l i e r and M e l n i c k (1976) 35 C.C.C. ( 2 d ) 555 (N.S.S.C.T.D.).  156.  See Watt, s u p r a , n o t e  157.  Criminal  158.  Ibid. s.l78.11(2)(b).  159.  Ibid,  160.  Supra, note  161.  When an u n d e r c o v e r p o l i c e o f f i c e r wears a c o n c e a l e d r a d i o t r a n s m i t t e r ("body p a c k " ) , t h e r e c o r d i n g o f h i s c o n v e r s a t i o n i s c o n d u c t e d by a n o t h e r member o f t h e p o l i c e f o r c e .  162.  S u p r a , n o t e 149.  163.  Supra, note  164.  Criminal  165.  S u p r a , n o t e 104.  C.A.).  61, 105, 130 and 150, a t 46.  Code, s . 1 7 8 . 1 1 ( 2 ) ( a ) .  s.178.16(1). 138-140, 144 and 147.  151-153.  Code, s.178.18(2) ( d ) .  - 107 -  166. C r i m i n a l  Code,  167. S u p r a , n o t e  s.178.18(2)(b.1).  138-140,  168. I d ^ a t 1005-1006, 169. C r i m i n a l  144, 147 and 160.  51 C.C.C. ( 2 d ) a t 23-24.  Code, s.178.13.  170.  Ibid,  s.178.15.  171.  Ibid,  s.178.1.  172. I b i d ,  s.178.12  173. I b i d ,  s.178.12(1).  174. I b i d .  S.178.12(l)(a).  175. I b i d .  s,178.12(l)(b).  (1).  176. See R e g i n a v. Hancock and P r o u l x 36 C.R.N.S. 102 ( B . C . C . A . ) . 177. A c c o r d i n g t o my i n t e r v i e w w i t h o f t e n happens. 178. C r i m i n a l  30 C.C.C. ( 2 d )  t h e RCMP, t h i s  situation  Code, S . 1 7 8 . 1 2 ( 1 ) .  179. I b i d .  s.l78.12(l)(c).  180. I b i d .  s.l78.12(l)(c).  181.  Ibid.  s.l78.12(l)(d).  182. I b i d .  s.l78.12(l)(e).  183. I b i d .  s.l78.12(l)(e).  184. I b i d .  s.l78.12(l)(e).  185. I b i d .  s,178.12(l)(e.l).  186. I b i d .  s.l78.12(l)(f).  187. I b i d .  s.l78.12(l)(g).  188. See Watt, s u p r a , n o t e 189. C r i m i n a l  (1976),  Code,  61, 105, 130, 150 and 156, a t 86.  s.178.13(1)(a).  190.  Ibid.  s.l78.13(l)(b).  191.  Ibid.  s.l78.13(2)(a).  - 108 -  544,  192.  Ibid.  s.l78.13(2)(b).  193.  Ibid,  s.178.13(c).  194.  Ibid.  S.178.13(2)(C).  195.  Ibid.  s.l78.13(2)(c).  196.  I b i d . S.178.13(2)(e).  197.  Ibid. s.l78.13(2)(d). U n l i k e other items i n s.178.13(2), t h i s i t e m i s n o t m a n d a t o r y . See W a t t , s u p r a , n o t e 61, 105, 130, 150, 156 and 188, a t 129.  198.  See W a t t ,  199.  My i n t e r v i e w  with  t h e RCMP.  200.  My i n t e r v i e w w i t h  t h e RCMP.  201.  Criminal  202.  E . g . , i n W a t t , s u p r a , n o t e 61, 105, 130, 150, 156, 188, 197 and 198, a t 91, t h e l e a r n e d a u t h o r s t a t e s as f o l l o w s :  ibid.  Code, s.178.12(1) ( e ) .  I t i s t h e p o t e n t i a l i n v o l v e m e n t o f a known s u b j e c t i n the commission of the o f f e n c e being i n v e s t i g a t e d t h a t makes h i s c o n v e r s a t i o n s o f e v i d e n t i a r y s i g n i f i c a n c e and, a c c o r d i n g l y , i t i s o n l y knowledge o f t h e c o n t e m p l a t e d o b j e c t ' s i d e n t i t y i n t h i s p a r t i c i p a t o r y sense t h a t animates the i d e n t i f i c a t i o n r e q u i r e m e n t o f s e c t i o n 178.12(e). 203.  Unreported, #CC780237.  January  204.  S u p r a , n o t e 134.  205.  S u p r a , n o t e 203, a t 4. On t h e o t h e r hand, t h e c o u r t h e l d t h a t an a u t h o r i z a t i o n i s n o t i n v a l i d s o l e l y by r e a s o n o f t h e f a c t t h a t i t f a i l s t o name a l l "known" s u s p e c t s , w h i l e a f a i l u r e t o s p e c i f y a l l " p r i m a r y t a r g e t s " may w e l l l e a d t o the a u t h o r i z a t i o n b e i n g s t r u c k down on t h e b a s i s o f f r a u d o r non-disclosure. An a c c u r a t e a n a l y s i s o f t h i s c a s e i s i n S.D. F r a n k e l , The R e l a t i o n s h i p of'Known" and"Unknown" P e r sons t o t h e A d m i s s i b i l i t y o f I n t e r c e p t e d P r i v a t e Communicat i o n s , (.1979) 21 C r . L.Q. 465.  206.  M. T i t l e , C a n a d i a n W i r e t a p L e g i s l a t i o n : P r o t e c t i o n o r E r o s i o n o f P r i v a c y , (.1978) 26 C h i t t y ' s L . J . 47, a t 49.  207.  My i n t e r v i e w  with  8, 1979 (B.C. C o . C t . ) Van.  t h e RCMP.  - 109 -  Reg.  208.  My i n t e r v i e w w i t h t h e RCMP.  209.  (1977) 40 C.C.C.(2d) 87 (Ont. C o . C t . ) .  210.  I d . a t 90-91.  211.  1967-68, c . 7 .  212.  (1985) 21 C.C.C. ( 3 d )  68.  213. My i n t e r v i e w w i t h t h e R.C.M.P. 214.  Criminal  Code,  215.  See R e g i n a v. P l e i c h 194 (Ont. C.A.).  216.  Criminal  217.  Ibid.  s.l78.13(3)(a).  218.  Ibid.  s.l78.13(3)(b).  219.  Ibid.  s.l78.13(3)(b).  220.  Ibid.  s.l78.13(3)(c).  221.  Ibid,  s.178.13(3).  222.  Ibid,  s.178.13(4).  Code,  s.178.13(3). (1980) 55 C.C.C. ( 2 d ) 13, 16 C.R. ( 3 d )  s.178.13(3).  223. My i n t e r v i e w w i t h t h e RCMP. 224.  Regina 70.  v. B a d o v i n a c  (1977) 34 C.C.C. ( 2 d ) 65 ( O n t . C.A.), a t  225.  I n R e g i n a v. C r e a s e e t a l . (No.2) (1980) 53 C.C.C. ( 2 d ) 121, 16 C.R. C 3d J 221 (B.C.C.A.J, i t was h e l d t h a t an i n t e r c e p t i o n i s n o t l a w f u l l y made where, n o t w i t h s t a n d i n g t h e a u t h o r i z a t i o n c o n t a i n s a b a s k e t c l a u s e f o r unknown p e r s o n s , t h e p e r s o n sought t o be i n c l u d e d i n t h e b a s k e t c l a u s e was known by t h e p o l i c e , a t t h e t i m e o f r e n e w a l o f t h e authorization.  226.  In R e g i n a v. Commisso (1983) 7 C.C.C. ( 3 d ) 1, 36 C.R. ( 3 d ) 105 ( S . C . C ) , i t was h e l d t h a t i t may be t h a t i f i t were shown t h a t t h e p o l i c e on a r e n e w a l had n o t r e v e a l e d t h a t t h e y had g r o u n d s t o a s k f o r a s e p a r a t e a u t h o r i z a t i o n f o r a n o t h e r o f f e n c e t h e n t h e r e n e w a l might have been o b t a i n e d i r r e g u l a r l y , and t h e s u b s e q u e n t i n t e r c e p t i o n s would be u n l a w f u l and any e v i d e n c e o b t a i n e d t h r o u g h s u c h interceptions inadmissible.  227.  Criminal  Code, s.178.15.  - 110 -  228.  Ibid.  s.l78.15(l)(a).  229.  Ibid.  s.l78.15(l)(b).  230.  Ibid,  s.178.15(1).  231.  Ibid,  s.178.15(1).  232.  Ibid,  s.178.15(2).  233.  Ibid,  s.178.23(1).  234.  Ibid,  s.178.12(2).  235.  Ibid,  s.178.23(3).  236.  My i n t e r v i e w  w i t h t h e RCMP.  237.  My i n t e r v i e w  w i t h t h e RCMP.  238.  Criminal  239.  Ibid,  s.178.16(1).  240.  Ibid,  s.178.16(3).  241.  Ibid,  s.178.16(4).  242.  Ibid.  s.l78.16(4)(a).  243.  Ibid.  s.l78.16(4)(b).  244.  Ibid,  s.178.23(1).  245.  E . g . , i n R e g i n a v . W e l s h and I a n n u z z i ( N o . 6 ) , s u p r a , n o t e 95 and 96, a t 370, t h e O n t a r i o C o u r t o f A p p e a l h e l d as f o l l o w s :  Code,  s.178.16(1).  S e c t i o n 178.23(1) i s d i r e c t o r y and i t s p u r p o s e i s to e n s u r e t h a t t h e r e be d i s c l o s u r e t h a t p r i v a t e c o m m u n i c a t i o n s have been i n t e r c e p t e d and t h e r e b y provide a basis for p o l i t i c a l accountability. However, i t cannot be s a i d t h a t a f a i l u r e t o comply w i t h t h i s s e c t i o n c a n r e t r o s p e c t i v e l y c h a r a c t e r i z e an o t h e r w i s e l a w f u l i n t e r c e p t i o n as unlawful. 246.  Criminal  Code,  247.  Supra, note  248.  The r e l e v a n t  s.178.16(2).  95, 96 and 245. part  of the c o u r t  decision  r e a d s as f o l l o w s :  In my o p i n i o n , an i n t e r c e p t i o n c o m p l i e s w i t h b o t h the Code and t h e a u t h o r i z a t i o n i f i t i s made i n r e s p e c t t o a s t a t e d o f f e n c e , i . e . , f o r the purpose - I l l-  or o b j e c t of i n v e s t i g a t i o n or g a t h e r i n g e v i d e n c e w i t h r e s p e c t t o the named o f f e n c e . The f a c t t h a t the p u r s u i t of the o b j e c t i v e of the a u t h o r i z a t i o n r e v e a l s e v i d e n c e o f o t h e r c r i m e s does not a f f e c t the l a w f u l c h a r a c t e r of t h e i n t e r c e p t i o n . 249.  The  relevant  part  of  the  court  d e c i s i o n r e a d s as  follows:  If an a u t h o r i z a t i o n does not i n c l u d e e i t h e r as a named o r unnamed p e r s o n any o f the p a r t i e s t o a c o m m u n i c a t i o n , the i n t e r c e p t i o n c a n n o t be c h a r a c t e r i z e d as l a w f u l , and the i n t e r c e p t e d communication i s , t h e r e f o r e , inadmissible. 250.  C o n t r a , R e g i n a v. Samson (No.4) (1982) 37 O.R. (2d) 26 ( C o . C t . ) , r e v e r s e d i n the O n t a r i o C o u r t of A p p e a l , s u p r a , n o t e 135 and 136.  251.  Supra, note  252.  Id. at  197.  253.  Id.  201.  254.  S.A. Cohen, I n v a s i o n of P r i v a c y : P o l i c e and S u r v e i l l a n c e i n Canada ( 1 9 8 3 ) , a t 147.  255.  See R e g i n a v. L e c l e r c (1985) 20 C.C.C. (3d) 173 (B.C.CTA.),which h e l d t h a t the i n t e r c e p t i o n o f the a c c u s e d ' s p r i v a t e c o m m u n i c a t i o n s under an i t i n e r a n t i n t e r c e p t i o n c l a u s e was l a w f u l . On t h e o t h e r hand, the Supreme C o u r t o f Canada h e l d i n G r a b o w s k i v. The Queen [1985] 2 S.C.R. 434, 22 C.C.C. (3d) 68 t h a t the i t i n e r a n t i n t e r c e p t i o n c l a u s e combined w i t h a p l a c e - r e l a t i n g b a s k e t c l a u s e was invalid, b e c a u s e s u c h a c o m b i n a t i n a l l o w e d the c o n v e r s a t i o n s of anyone t o be i n t e r c e p t e d anywhere and c o n s e q u e n t l y the a u t h o r i z a t i o n c o n t a i n e d no l i m i t a t i o n s as t o p e r s o n or p l a c e of t h e i n t e r c e p t i o n .  256.  P r o v i n c e of B r i t i s h C o l u m b i a , M i n i s t r y of A t t o r n e y G e n e r a l , 1983 A n n u a l R e t u r n : I n v a s i o n o f P r i v a c y P a r t IV.1 o f the C r i m i n a l Code shows t h a t d u r i n g the s i x y e a r p e r i o d from 1978 t o 1983 the emergency a u t h o r i z a t i o n was g r a n t e d o n l y f o u r t i m e s , w h i l e 375 o r d i n a r y a u t h o r i z a t i o n s (excluding r e n e w a l s ) were g r a n t e d .  257.  Criminal  258.  (1984) 9 C.C.C. (3d)  259.  Id.,  at  at  135,  Code, s.  136  and  250.  178.13(1). 97  (S.C.C.).  124.  - 112  -  Electronic  260.  E.g. R e g i n a v. Wood e t a l . (1986) 8 C.R.D. 950-01 ( S . C . O n t . ) T ~ R e g i n a v. M a r t e l (T986) 8 C.R.D. 950-02 ( S . C . P . E . I . , A p p e a l D i v . J ; R e g i n a v." Young e t a l . (1986) 8 C.R.D. 950-03 (B.C.Co.Ct.).  261.  My i n t e r v i e w  262.  C o n t r a , R e g i n a v. B l u n d e l l , S t r e e t n o t e 209 and 210.  263.  Supra, note  264.  I a \ a t 16.  265.  Supra, note  266.  IdL a t 201.  267.  (1985) 15 C.C.C. ( 3 d ) 417 ( S . C . C . ) .  268.  I d . a t 465.  269.  F o r example, L y o n s , i d . , has a p o s i t i v e a s p e c t t o t h e p o l i c e as w e l l . I n t h i s c a s e , t h e main i s s u e was w h e t h e r o r n o t the s u r r e p t i t i o u s e n t r y by t h e p o l i c e i n t o t h e p r e m i s e s o f the a c c u s e d f o r t h e p u r p o s e o f i n s t a l l i n g a r a d i o t r a n s m i t t e r rendered i n a d m i s s i b l e evidence of the i n t e r c e p t i o n s s u b s e q u e n t l y made p u r s u a n t t o t h e a u t h o r i z a t i o n s which d i d not s p e c i f i c a l l y r e f e r t o such entry. The c o u r t h e l d t h a t u n l e s s t h e a u t h o r i z a i o n contains l i m i t a t i o n s on or p r o h i b i t i o n of s u r r e p t i t i o u s e n t r y , an a u t h o r i z a t i o n by n e c e s s a r y i m p l i c a t i o n a u t h o r i z e s any p e r s o n a c t i n g under t h e a u t h o r i z a t i o n t o e n t e r any p l a c e a t w h i c h p r i v a t e c o m m u n i c a t i o n s a r e t o be i n t e r c e p t e d t o i n s t a l l o r to s e r v i c e a p e r m i t t e d l i s t e n i n g d e v i c e , p r o v i d e d such e n t r y i s r e q u i r e d t o implement t h e a u t h o r i z a t i o n .  270.  S u p r a , n o t e 32.  271.  S u p r a , n o t e 31.  272.  S e c t i o n 10(1) and 1 0 ( 3 ) o f t h e Combines i n f r a , n o t e 273, p r o v i d e :  with  t h e RCMP. and Read  (No. 2 ) , s u p r a ,  134 and 204.  135, 136 and 250-253.  Investigation Act,  10(1). S u b j e c t t o s u b s e c t i o n ( 3 ) , i n any i n q u i r y under t h i s A c t t h e D i r e c t o r [ o f I n v e s t i g a t i o n and R e s e a r c h o f the Combines I n v e s t i g a t i o n B r a n c h ] o r any r e p r e s e n t a t i v e a u t h o r i z e d by him may e n t e r any p r e m i s e s on w h i c h t h e D i r e c t o r b e l i e v e s t h e r e may be e v i d e n c e r e l e v a n t t o t h e m a t t e r s b e i n g i n q u i r e d i n t o and may examine any t h i n g on t h e p r e m i s e s and may copy o r t a k e away f o r f u r t h e r e x a m i n a t i o n o r c o p y i n g any book, p a p e r , r e c o r d o r o t h e r document t h a t i n t h e o p i n i o n o f the D i r e c t o r o r h i s a u t h o r i z e d r e p r e s e n t a t i v e , as t h e case may be, may a f f o r d s u c h e v i d e n c e . - 113 -  (3). B e f o r e e x e r c i s i n g t h e power c o n f e r r e d bys u b s e c t i o n ( 1 ) , t h e D i r e c t o r or h i s r e p r e s e n t a t i v e s h a l l p r o d u c e a c e r t i f i c a t e from a member o f the [ R e s t r i c t i v e T r a d e P r a c t i c e s ] Commission, w h i c h may be g r a n t e d on t h e ex p a r t e a p p l i c a t i o n o f the D i r e c t o r , a u t h o r i z i n g t h e e x e r c i s e of s u c h power. 273.  R.S.C. 1970,  c.  C-23.  274.  Supra, note  275.  In H u n t e r v. Southam I n c . , i d . , t h e Supreme C o u r t o f Canada e x p r e s s e d the view t h a t the p r o p e r approach to the d e f i n i t i o n of t h e r i g h t s and f r e e d o m s g u a r a n t e e d by t h e C h a r t e r was a p u r p o s i v e one, and t h a t t h e meaning o f a r i g h t or freedom g u a r a n t e e d by t h e C h a r t e r was t o be a s c e r t a i n e d by an a n a l y s i s o f t h e p u r p o s e o f s u c h a g u a r a n t e e .  276.  L a \ , a t 168  277.  E.g., see J.W. Hak, The A u t h o r i z a t i o n P r o v i s i o n s o f t h e P r o t e c t i o n o f P r i v a c y A c t and t h e A p p l i c a t i o n o f S e c t i o n of t h e C a n a d i a n C h a r t e r o f R i g h t s and Freedoms ( 1 9 8 6 ) , unpublished.  31 and  271,  (S.C.R.),  Code,  a t 160  115  (S.C.R.),  109  (C.C.C).  (C.C.C). 8  278.  Criminal  s.178.13(1).  279.  (1986) 48 C.R.  280.  Id. at  281.  I d . a t 365-366.  282.  Id. at  283.  Law Reform Electronic  284.  Watt, s u p r a , n o t e 202, a t 178.  285.  18.  286.  Criminal  287.  E.g., i n F i n l a y and G r e l l e t t e , s u p r a , n o t e 279-282, a t 369, M a r t i n J.XI f o r t h e O n t a r i o C o u r t o f A p p e a l h e l d as f o l l o w s :  (3d)  341  (Ont.  C.A.).  362.  366. Commission of Canada, Working S u r v e i l l a n c e ( 1 9 8 6 ) , a t 34. 61,  105,  U.S.C. ss.2510-2520 Code,  130,  150,  156,  Paper 188,  47: 197,  198  and  (1970).  s.178.13(2)(d).  I am of t h e view t h a t , h a v i n g r e g a r d t o t h e p r o v i s i o n s o f s . 1 7 8 . 1 3 ( 2 ) ( d ) , w h i c h may and s h o u l d be r e s o r t e d to by the a u t h o r i z i n g judge t o impose a m i n i m i z a t i o n r e q u i r e m e n t when the c i r c u m s t a n c e s o f the i n t e r c e p t i o n w a r r a n t the i m p o s i n g of s u c h a term, t h e a b s e n c e of an  - 114  -  e x p r e s s m i n i m i z a t i o n r e q u i r e m e n t s u c h as i n T i t l e I I I does not r e n d e r P a r t IV.1 unconstitutional.  that  contained  288.  Source: International Criminal A f f a i r s Divison, Criminal I n v e s t i g a t i o n B u r e a u , N a t i o n a l P o l i c e A g e n c y , Government of Japan, 1986.  289.  T o t a l number of Statistics.  290.  Ibid.  291.  A c c o r d i n g t o N a t i o n a l P o l i c e Agency, The P o l i c e of J a p a n ( 1 9 8 5 ) , b e s i d e s the e f f i c i e n c y o f the p o l i c e , the f o l l o w i n g a r e s a i d t o be the main r e a s o n s f o r the good p u b l i c p e a c e and o r d e r i n J a p a n :  offences  contained  in National  Crime  a. J a p a n i s a sea-bound c o u n t r y w i t h a homogeneous r a c e , l a n g u a g e and c u l t u r e . b. The J a p a n e s e have a h i g h l e v e l of e d u c a t i o n and are t r a d i t i o n a l l y bound by norm c o n s c i o u s n e s s . c. In J a p a n , t h e unemployment r a t e i s low. The gap b e t w e e n t h e r i c h and t h e p o o r i s s m a l l . T h e r e a r e no fixed social classes. And the p e o p l e are g u a r a n t e e d equal o p p o r t u n i t i e s i n occupation, s o c i a l status and income, s u b j e c t t o one's own efforts. d. J a p a n e x e r c i s e s s t r i c t c o n t r o l o v e r guns and d r u g s . e. The J a p a n e s e put deep t r u s t i n the p o l i c e and are cooperative in criminal investigation. 292.  N a t i o n a l P o l i c e A g e n c y , Government of P o l i c e 1983 ( e x e r p t s ) , t r a n s l a t e d and A s s o c i a t i o n , a t 45.  Japan, White p u b l i s h e d by  293.  N a t i o n a l P o l i c e A g e n c y , Government of P o l i c e 1984, t r a n s l a t e d and p u b l i s h e d at 61.  J a p a n , W h i t e P a p e r on by P o l i c e A s s o c i a t i o n ,  294.  Ibid.  295.  Asahi  296.  National  297.  Source: Second I n v e s t i g a t i o n D i v i s i o n , C r i m i n a l I n v e s t i g a t i o n B u r e a u , N a t i o n a l P o l i c e A g e n c y , Government Japan.  S h i n b u n , March Police  298.  Ibid.  299.  446,417 p e r s o n s .  300.  144,758 p e r s o n s .  31,  1986,  at  3.  A g e n c y , s u p r a , nofie  - 115  -  P a p e r on Police  293  and  294,  at  109. of  301.  Source: Second I n v e s t i g a t i o n D i v i s i o n , C r i m i n a l I n v e s t i g a t i o n B u r e a u , N a t i o n a l P o l i c e A g e n c y , Government Japan.  302.  National 150.  P o l i c e Agency,  303.  Ibid.  304.  Shukan A s a h i ,  305.  Asahi  306.  Judgment d e l i v e r e d  307.  Dantai-to  308.  A r t i c l e 193 of (translation):  December  Shinbun, A p r i l  supra, note  13,  2,  by  1985,  1986,  at  at  Eleventh  293,  294  and  296,  of  at  21.  5.  Criminal  Department.  Kiseirei. the  Penal  Code  [Keiho]  provides  A r t i c l e 193. (Abuse of A u t h o r i t y by P u b l i c O f f i c e r ) When a p u b l i c o f f i c e r a b u s e s h i s a u t h o r i t y and c a u s e s a p e r s o n t o p e r f o r m an a c t w h i c h he has no o b l i g a t i o n t o p e r f o r m , or o b s t r u c t s a p e r s o n from e x e r c i s i n g a r i g h t w h i c h he i s e n t i t l e d t o e x e r c i s e , i m p r i s o n m e n t a t or w i t h o u t f o r c e d l a b o r f o r not more t h a n two y e a r s s h a l l be imposed. 309.  The p r e a m b l e t o the (translation):  Constitution  of  Japan  provides  We, t h e J a p a n e s e p e o p l e , a c t i n g t h r o u g h our d u l y e l e c t e d r e p r e s e n t a t i v e s i n the N a t i o n a l D i e t , d e t e r m i n e d t h a t we s h a l l s e c u r e f o r o u r s e l v e s and our p o s t e r i t y the f r u i t s o f p e a c e f u l c o o p e r a t i o n w i t h a l l n a t i o n s and the b l e s s i n g s of l i b e r t y t h r o u g h o u t t h i s l a n d , and r e s o l v e d t h a t n e v e r a g a i n s h a l l we be v i s i t e d w i t h the h o r r o r s of war t h r o u g h the a c t i o n of g o v e r n m e n t , do p r o c l a i m t h a t s o v e r e i g n " p o w e r r e s i d e s w i t h t h e p e o p l e and do f i r m l y e s t a b l i s h t h i s Constitution. Government i s a s a c r e d t r u s t of the p o e p l e , t h e a u t h o r i t y f o r w h i c h i s d e r i v e d from the p e o p l e , the powers of w h i c h a r e e x e r c i s e d by t h e r e p r e s e n t a t i v e s o f the p e o p l e , and the b e n e f i t s o f w h i c h a r e e n j o y e d by t h e p e o p l e . This i s a u n i v e r s a l p r i n c i p l e of mankind upon w h i c h t h i s C o n s t i t u t i o n i s founded. We r e j e c t and r e v o k e a l l c o n s t i t u t i o n s , l a w s , o r d i n a n c e s , and r e s c r i p t s i n c o n f l i c t h e r e w i t h . [emphasis  added]  - 116  -  310.  A r t i c l e 13 o f t h e C o n s t i t u t i o n (translation):  of Japan  provides  A r t i c l e 13. A l l o f t h e p e o p l e s h a l l be r e s p e c t e d as individuals. T h e i r r i g h t t o l i f e , l i b e r t y , and t h e p u r s u i t of h a p p i n e s s s h a l l , t o t h e e x t e n t t h a t i t does not i n t e r f e r e w i t h t h e p u b l i c w e l f a r e , be t h e supreme c o n s i d e r a t i o n i n l e g i s l a t i o n and i n o t h e r g o v e r n m e n t a l affairs. 311.  A r t i c l e 12 o f t h e C o n s t i t u t i o n (translation):  of Japan  provides  A r t i c l e 12. The f r e e d o m s and r i g h t s g u a r a n t e e d t o t h e p e o p l e by t h i s C o n s t i t u t i o n s h a l l be m a i n t a i n e d by t h e c o n s t a n t e n d e a v o r o f t h e p e o p l e , who s h a l l r e f r a i n f r o m any abuse o f t h e s e f r e e d o m s and r i g h t s and s h a l l always be r e s p o n s i b l e f o r u t i l i z i n g them f o r t h e p u b l i c welfare. 312.  A r t i c l e 189 o f t h e Code o f C r i m i n a l (translation):  Procedure  provides  A r t i c l e 189. A p o l i c e o f f i c i a l s h a l l p e r f o r m h i s d u t i e s as a j u d i c i a l p o l i c e o f f i c i a l as a u t h o r i z e d by law, o r r e g u l a t i o n s o f t h e N a t i o n a l P u b l i c S a f e t y Commission o r o f the P r e f e c t u r a l P u b l i c S a f e t y Commission. 2. A j u d i c i a l p o l i c e o f f i c i a l s h a l l , when he deems an o f f e n c e has been c o m m i t t e d , i n v e s t i g a t e t h e o f f e n d e r and e v i d e n c e t h e r e o f . 313.  A r t i c l e 197 o f t h e Code o f C r i m i n a l (translation):  Procedure  provides  A r t i c l e 197. W i t h r e g a r d t o i n v e s t i g a t i o n , s u c h e x a m i n a t i o n as may be n e c e s s a r y f o r a t t a i n i n g i t s o b j e c t may be made. However, c o m p u l s o r y d i s p o s i t i o n s s h a l l n o t be e f f e c t e d e x c e p t when t h e r e a r e s p e c i a l p r o v i s i o n s t h e r e f o r i n t h i s law. 2. Public o f f i c e s , or p u b l i c or p r i v a t e organizations may be a s k e d t o make r e p o r t s on n e c e s s a r y m a t t e r s r e l a t i n g to i n v e s t i g a t i o n . 314.  4 Toko J i h o  18, 9 H a n r e i  Jiho  3.  315.  See S. T a n a k a d a t e , T o c h o k i no S h i y o t o P u r a i b a s h i Kenpo H a n r e i Hyakusen V o l . 1 , a t 170.  316.  See K. K u b o t a , P u r a i b a s h i T a i k e i V o l . 7 , a t 145.  317.  Yusen D e n k i T s u s h i n Ho, Law No.98 o f 1953.  no K e n r i  - 117 -  (1980),  ( 1 9 6 5 ) , N i p p o n k o k u Kenpo  318.  Denki  Tsushin Jigyo  Ho, Law No.86 o f 1984.  319.  C a b i n e t L e g a l Bureau's  320.  Keiji  321.  See H. T a m i y a ,  322.  Nipponkoku  323.  A r t i c l e 33 o f t h e C o n s t i t u t i o n (translation):  O p i n i o n , December 9, 1963.  Sosho Ho, Law No.131 o f 1948. Keiji  Sosho Ho, V o l . 1 ( 1 9 7 5 ) ,  a t 146.  Kenpo. of Japan p r o v i d e s  No p e r s o n s h a l l be a p p r e h e n d e d e x c e p t upon w a r r a n t i s s u e d by a competent j u d i c i a l o f f i c e r w h i c h s p e c i f i e s the o f f e n c e w i t h w h i c h t h e p e r s o n i s c h a r g e d , u n l e s s he i s a p p r e h e n d e d , t h e o f f e n c e b e i n g committed. 324.  January  3, 1946.  325.  See, K a t z  326.  The F o u r t h Amendment p r o v i d e s :  v. U n i t e d S t a t e s ( 1 9 6 7 ) ,  389 U.S. 347  (U.S.S.C).  The r i g h t o f t h e p e o p l e t o be s e c u r e i n t h e i r p e r s o n s , h o u s e s , p a p e r s , and e f f e c t s , a g a i n s t u n r e a s o n a b l e s e a r c h e s and s e i z u r e s , s h a l l not be v i o l a t e d , and no w a r r a n t s s h a l l i s s u e b u t upon p r o b a b l e c a u s e , s u p p o r t e d by o a t h o r a f f i r m a t i o n , and p a r t i c u l a r l y d e s c r i b i n g t h e p l a c e t o be s e a r c h e d , and t h e p e r s o n s o r t h i n g s t o be seized. 327.  See R. H i r a n o , K e i j i Sosho Ho ( 1 9 5 8 ) , a t 113; T. A t s u m i , Tocho, W i r e t a p p i n g (.1972 J, Enshu K e i j i Sosho Ho, a t 74.  328.  Supra, note (C.C.C.).  329.  See H. T a m i y a , a t 308.  330.  See T a m i y a ,  331.  See T. Matsumoto, Tocho 208.  332.  Kokyo no F u k u s h i .  31 and 271 and 274-276, a t 155 ( S . C . R . ) , Kyosei Sosa(1965),  supra, note  Sogo Hanken K e i s o  105 Vol.16,  321, a t 148. ( 1 9 7 0 ) , Shokoho T a i k e i  - 118 -  V o l . 1 , at  333.  Supreme C o u r t , F i r s t P e t t y 1978, 901 H a n r e i J i h o 15. follows ( t r a n s l a t i o n ) :  Bench Judgment on September 7, The g i s t o f t h e judgment r e a d s as  S i n c e n e i t h e r t h e C o n s t i t u t i o n n o r t h e Code o f C r i m i n a l Procedure provides concerning the a d m i s s i b i l i t y of i l l e g a l l y seized p h y s i c a l evidence, i t i s proper f o r t h i s i s s u e t o be d e c i d e d a c c o r d i n g t o t h e i n t e r p r e t a t i o n o f t h e Code of C r i m i n a l P r o c e d u r e . The p u r p o s e o f t h e Code o f C r i m i n a l P r o c e d u r e i s , "regarding c r i m i n a l cases, t o c l a r i f y the true f a c t s of c a s e s and t o a p p l y and r e a l i z e c r i m i n a l laws and o r d i n a n c e s f a i r l y and s p e e d i l y , w h i l e t h o r o u g h l y accomplishing t h e m a i n t e n a n c e o f p u b l i c w e l f a r e and s e c u r i t y o f f u n d a m e n t a l human r i g h t s o f i n d i v i d u a l s ( A r t i c l e 1)". I t i s , therefore, necessary to consider the i s s u e from t h i s p o i n t o f v i e w . On one hand, i t i s an i m p o r t a n t m i s s i o n o f t h e c r i m i n a l p r o c e d u r e t o a p p l y and r e a l i z e c r i m i n a l laws and o r d i n a n c e s f a i r l y and t o maintain p u b l i c order. F o r t h a t p u r p o s e i t goes without saying that c l a r i f y i n g the true f a c t s of cases as much as p o s s i b l e i s n e c e s s a r y . C o n s i d e r i n g the c h a r a c t e r i s t i c of p h y s i c a l e v i d e n c e t h a t t h e i l l e g a l i t y o f s e a r c h and s e i z u r e p r o c e d u r e c o u l d n o t change t h e n a t u r e , c o n d i t i o n , o r shape and t h e r e f o r e t h e e v i d e n t i a l v a l u e , o f t h e t h i n g w h i c h was i l l e g a l l y s e i z e d , i t i s n o t p r o p e r t o deny i t s a d m i s s i b i l i t y i n e v i d e n c e m e r e l y b e c a u s e o f t h e i l l e g a l i t y o f s e a r c h and s e i z u r e p r o c e d u r e , f o r i t would n o t conduce t o t h e c l a r i f i c a t i o n of the true f a c t s of cases. On t h e o t h e r hand, however, t h e c l a r i f i c a t i o n o f t h e t r u e f a c t s o f c a s e s must be a c h i e v e d a c c o r d i n g t o t h e f a i r process, thoroughly accomplishing the s e c u r i t y of fundamental human r i g h t s o f i n d i v i d u a l s . E s p e c i a l l y , c o n s i d e r i n g t h a t A r t i c l e 35 o f t h e C o n s t i t u t i o n p r o v i d e s t h a t " [ t ] h e r i g h t o f a l l p e r s o n s t o be s e c u r e i n t h e i r homes, p a p e r s and e f f e c t s a g a i n s t e n t r i e s , s e a r c h e s and s e i z u r e s s h a l l n o t be i m p a i r e d e x c e p t upon w a r r a n t i s s u e d f o r a d e q u a t e c a u s e and p a r t i c u l a r l y d e s c r i b i n g the p l a c e t o be s e a r c h e d and t h i n g s t o be s e i z e d , o r e x c e p t as p r o v i d e d by A r t i c l e 33", and a l s o c o n s i d e r i n g t h a t t h e Code o f C r i m i n a l P r o c e d u r e s t r i c t l y provides f o r s u c h m a t t e r s as s e a r c h e s and s e i z u r e s and t h a t A r t i c l e 31 o f t h e C o n s t i t u t i o n p r o v i d e s t h a t " [ n ] o p e r s o n s h a l l be d e p r i v e d o f l i f e o r l i b e r t y , n o r s h a l l any o t h e r c r i m i n a l p e n a l t y be imposed, e x c e p t a c c o r d i n g t o p r o c e d u r e e s t a b l i s h e d by law", i t s h o u l d be u n d e r s t o o d t h a t where i t i s n o t a p p r o p r i a t e from t h e s t a n d p o i n t of d e t e r i n g f u t u r e i l l e g a l i n v e s t i g a t i v e a c t i v i t y to allow i n t o evidence the things i l l e g a l l y o b t a i n e d i n gross d i s r e g a r d of the p r i n c i p l e of the w a r r a n t r e q u i r e m e n t embodied, i n t e r a l i a , i n s u c h p r o v i s i o n s as A r t i c l e 35 o f t h e C o n s t i t u t i o n and A r t i c l e 218, P a r a g r a p h 1 o f t h e Code o f C r i m i n a l P r o c e d u r e , s u c h e v i d e n c e i s t o be h e l d inadmissible.  - 119 -  334.  I n c l u d i n g the RCMP u n d e r t a k i n g , by c o n t r a c t , p r o v i n c i a l or municipal p o l i c e f o r c e .  335.  Code of  Criminal  Procedure,  A r t i c l e 189,  336.  Code o f  Criminal  Procedure,  A r t i c l e 246.  337.  Code of 248.  Criminal  Procedure of  338.  Under the  339.  enforcement  of  the  postwar  duties  supra, note  1922, A r t i c l e new  the  246  and  of  a  312.  Article  Constitution.  A c c o r d i n g to A r t i c l e 199 o f the Code o f C r i m i n a l P r o c e d u r e , the s t a t u s of the a p p l i c a n t f o r an a r r e s t w a r r a n t i s r e s t r i c t e d t o the j u d i c i a l p o l i c e o f f i c e r a t the r a n k of . P o l i c e I n s p e c t o r o r h i g h e r , d e s i g n a t e d by the National P u b l i c S a f e t y Commission or t h e P r e f e c t u r a l P u b l i c Safety Commission.  340.  See D.J. Guth and R.H. V o g e l , The C a n a d i a n C o n s t a b l e : Endangered S p e c i e s ? (1985), u n p u b l i s h e d .  341.  See P.C. S t e n n i n g , L e g a l S t a t u s o f The P o l i c e ( 1 9 8 1 ) , A S t u d y P a p e r p r e p a r e d f o r the Law Reform Commission of Canada, a t 18-28.  342.  See  343.  Code o f C r i m i n a l 222(1 ).  344.  Such r e q u i r e m e n t a l s o c o m p l i e s w i t h A r t i c l e C o n s t i t u t i o n of Japan.  345.  In a d d i t i o n t o the p a r t i c u l a r s of the p e r s o n s and p l a c e , the authorization shall specify; a. the o f f e n c e i n r e s p e c t of w h i c h p r i v a t e c o m m u n i c a t i o n s may be intercepted. b. a p a r t i c u l a r d e s c r i p t i o n of the t y p e of c o m m u n i c a t i o n s o u g h t t o be intercepted. c. the manner of i n t e r c e p t i o n , e s p e c i a l l y , whether or not t h e e n t r y i n t o the p l a c e i s a u t h o r i z e d . d. the p e r i o d of t i m e d u r i n g w h i c h i n t e r c e p t i o n i s authorized.  346.  S.M.  S.  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