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Wiretapping

Scott Fenton on Wiretapping and Other Electronic Surveillance

Author Interview

Scott K. Fenton

In the coming months, our Web site [carswell.com] will spotlight some of Canada Law Book's recent publications. In this inaugural author's interview, we spoke with Scott Fenton, one of the author's of Wiretapping and Other Electronic Surveillance: Law and Procedure.

Mr. Fenton provides an overview of the main issues surrounding electronic surveillance. He also hints at some of the new chapters that he and his co-authors, Robert Hubbard and Peter Brauti, are preparing for the book. For your convenience, we have included the book's table of contents as a means of summarizing its scope.

Longstanding professional and personal interest in electronic surveillance issues

Mr. Fenton first developed his interest in wiretap law as a Crown attorney at the federal Department of Justice in Toronto. He holds a fascination for the area of privacy, and considers himself a civil libertarian at heart.

"I'm very much attuned to the need for there to be this balance [between privacy and legislation], so that the rights of the individual are not sacrificed to the interests of law enforcement," states Mr. Fenton.

According to Mr. Fenton, wiretap and other electronic surveillance are the most insidious forms of government interception in our private lives. He is adamant that the Charter of Rights and Freedoms be respected in order to ensure privacy.

Groups such as the Canadian Civil Liberties Association and the Ontario Law Union, he says, are crucial participants in ensuring privacy issues are upheld during the course of law enforcement and court proceedings.

Are privacy rights of Canadians safeguarded?

Currently, law enforcement officers must apply to the courts for the right to intercept private communications. However, subsequent evidence collected through electronic surveillance may still be challenged under the Canadian Charter of Rights and Freedoms.

As Mr. Fenton points out, Canadian courts are the primary guardians of citizens' privacy rights. They must work to achieve a delicate balance between detecting and eradicating crime, and respecting the rights of Canadian citizens to go about their business without government interference.

"The law regarding electronic surveillance has become increasingly complex," says Mr. Fenton. "The overlay of the Charter has certainly given rise, quite properly, to extensive litigation in relation to privacy rights. That in turn, has spawned a new generation of rules and legislative provisions dealing with specific forms of legislation."

According to Mr. Fenton, the adequacy of current legislation surrounding electronic surveillance is largely a matter of personal opinion. " As new issues come forward," he says, "the courts will continue to grapple with the whole issue of where the appropriate balance lies."

Uncharted territory concerning Internet issues

One of the key issues to be addressed in the realm of electronic surveillance, explains Mr.Fenton, is the area of Internet communications. That would include not only Web site interactions, but also the pervasive use of electronic mail for professional, business and personal use.

"As it is presently drafted," explains Mr. Fenton, "Part 6 of the Canadian Criminal Code does not expressly address whether or not police officers can intercept Internet and e-mail communications."

The U.S. has had several cases where e-mail interceptions have been used as evidence, says Mr. Fenton. But there have been no such cases on Canadian soil. For this reason, claims Mr. Fenton, it remains undetermined whether the Criminal Code would allow a law enforcement officer to apply to intercept online communications, as a form of private communications.

"There's a world of jurisdictional, substantive legal and technical issues that will present themselves," predicts Mr. Fenton.

It is also unclear what sort of legislation may be needed to deal with issues involving encryption of communications. For instance, will the courts rule that in the case of granting the right to undertake electronic surveillance of e-mail, that private keys must be handed over in order to "unlock" encrypted messages?

" ... the world of communications is changing rapidly," concedes Mr. Fenton, " and it's going to be necessary for law enforcement to properly fulfill their functions to protect the public interest and to be able to access in the appropriate case, communications over the Internet."

Upcoming chapters on Internet communications

Mr. Fenton and his co-authors plan to update their publication with chapters dealing with issues of jurisdiction, law enforcement and technical issues surrounding Internet communications and electronic surveillance. Mr. Fenton concedes that this area is extremely specialized, and largely untapped from the perspective of legal analysis.

As there have not yet been any Canadian cases dealing with these issues, much of the content will be gleaned from American research, although existing Canadian academic pieces will be consulted.

Such statistics would give the public "almost no idea" of the sentencing practices of a judge, he says, adding judges rarely issue written reasons in these types of cases.

"As the world moves to wired and wireless Internet communications, so too must both law enforcement and the courts, in terms of safeguarding privacy interests and developing a proper code of procedure... when pursuing alleged communications in the furtherance of crimes," says Mr. Fenton.

Browse table of contents

1. Introduction

2. Lawful and Consent Interceptions Without Judicial Authorization

3. The Application

4. Special Problems Associated with Wiretap Affidavits

5. The Authorization

6. Further Problems Associated with Authorizations

7. Pre-Trial Hearings: Bails and Preliminary Inquiries

8. Defence Motions to Quash and Exclude Evidence

9. At Trial: Crown Techniques for Defending Against Attacks on the Authorization

10. The Consequences of an Invalid Order: Section 24(2) of the Charter

11. Recorded Evidence, Voice Identification, Transcripts, Notice andSummaries

12. Electronic Surveillance Under the Canadian Security Intelligence Service Act

13. Criminal Penalties for Unlawful Electronic Surveillance and Related Activities

This article does not constitute legal or other professional advice and no responsibility for any loss occasioned to any person acting or refraining from action in reliance upon material contained in this article is accepted by the author or Canada Law Book Inc.

(c) Canada Law Book Inc. 2002.