Michaud v. Quebec (Attorney General)

The Chief Justice -- Part VI of the Criminal Code , R.S.C., 1985, c. C-46 (since amended by S.C. 1993, c. 40), permits law enforcement officials to obtain judicial authorization for the electronic surveillance (a "wiretap") of a specified individual (the "target") upon the filing of an application and supporting affidavits which establish reasonable and probable grounds for intercepting the individual's private communications. Following judicial consideration of the application, the materials are deemed "confidential" and are placed in a "sealed packet" pursuant to s. 187(1) of the Code. However, under s. 187(1)(a)(ii) (now revised as s. 187(1.3)), a designated judge is vested with the discretionary authority to open the packet and grant access to its contents. In Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505, a majority of this Court held that the target of a wiretap authorization who subsequently faces criminal prosecution on the basis of intercepted communications is automatically entitled to gain access to the materials within the packet, subject only to the Crown's right to apply to have the materials edited. More specifically, the majority held, inter alia, that the judicial discretion vested under s. 187(1)(a)(ii) must be automatically exercised in favour of an accused target in light of an accused's right to full answer and defence under s. 7 of the Canadian Charter of Rights and Freedoms . The narrow issue presented by this appeal concerns whether a non-accused target may similarly seek and obtain automatic access to the sealed packet for the purpose of examining its contents in the hopes of grounding a claim for damages for the unlawful interception of private communications at private law or statute, or under ss. 8 and 24(1) of the Charter .

The appellant was the target of an authorized wiretap in February 1993 as part of a larger police investigation into the leak of confidential government documents. To date, no criminal charges have been laid against him. The appellant, hoping to pursue an action in damages for an unlawful wiretap search, filed a motion under s. 187(1)(a)(ii) for access to the sealed packet. In the same motion, the appellant sought disclosure of the actual tape recordings produced by the wiretap and any existing transcripts of his intercepted communications (the "recording materials"). My colleagues La Forest and Sopinka JJ. would conclude that under both s. 187(1)(a)(ii) and its revised equivalent, s. 187(1.3), a judge must automatically grant the appellant's motion for access to the contents of the packet as an extension of Dersch. They would further find that the judge may grant the appellant access to the recording materials upon a demonstration that the wiretap was illegal.

With respect, I am unable to share their views. While I would also allow the appeal in this instance, I profoundly disagree with their interpretation of a non-accused target's right to examine the sealed packet under the Criminal Code and the Charter . The existing legislative and judicial authorities on s. 187(1)(a)(ii) strongly indicate that Parliament intended the contents of the packet to remain presumptively "confidential" in the interests of preserving the secrecy of police investigative techniques and police informers. For a wiretap to be executed under Part VI of the Code, a judge will have already concluded that the application and supporting affidavits, on their face, raise reasonable and probable grounds for the interception of a subject's private communications. However, as an additional safeguard, Parliament vested a designated judge with a broad discretion to open and selectively distribute the contents of the packet. But where a former surveillance target applies for access in the absence of any threat of criminal prosecution, Parliament clearly intended that the state's pressing interest in confidentiality of the packet should represent the dominant consideration in the exercise of this discretion. Accordingly, previous courts have properly concluded that this discretion to open the packet should not be exercised upon the mere suspicion of wrongdoing by the state; rather, judicial discretion under s. 187(1)(a)(ii) should only be exercised on the basis of "good cause", i.e., upon a preliminary showing which suggests that the original authorization was obtained unlawfully.

Thus, in my view, where a non-accused target has applied for a judicial order under s. 187(1)(a)(ii) (or under the current s. 187(1.3)), a judge should normally only exercise his or her discretion in favour of granting access upon the presentation of some evidence that law enforcement officials engaged in fraud or wilful non-disclosure in obtaining the authorization. If the target is successful in securing access to the packet under s. 187(1)(a)(ii), he or she may only then seek access to the recording materials upon a new motion in a subsequent proceeding.

I am not persuaded that this settled, purposive interpretation of s. 187(1)(a)(ii) ought to be altered in light of s. 8 of the Charter . In Dersch, this Court held that notwithstanding the existing interpretation of the predecessor of s. 187(1)(a)(ii), where the wiretap target faces subsequent criminal prosecution, this statutory discretion must be exercised systematically in favour of access to give effect to an accused's right to full answer and defence under s. 7 of the Charter and an accused's right to challenge the admission of potentially unlawfully intercepted evidence under ss. 8 and 24(2) of the Charter . But where a target faces no threat of imprisonment, Dersch clearly indicated that "different considerations" apply. Under such circumstances, these different "considerations" persuade me that a non-accused target is not constitutionally entitled to examine the contents of the packet in the absence of some evidence which suggests that the original authorization was unlawfully granted. While an individual has an important and vital right to the disclosure of governmental information in order to effectuate his or her substantive constitutional rights under ss. 7 and 8 of the Charter , it is my belief that this right does not compel absolute access to confidential information held by the state where the individual does not face the jeopardy of the criminal process.

The appellant, a lawyer, worked for the Secrétariat aux affaires intergouvernementales canadiennes (“SAIC”) up until September 28, 1992. Shortly following the end of his employment, an article appeared in the national press which revealed certain confidential information regarding the participation of the SAIC in constitutional negotiations leading up to the Charlottetown Accord. In the course of its ensuing investigation regarding the leaked information, the Sûreté du Québec suspected that the appellant had removed documents from the SAIC in violation of s. 122 of the Criminal Code (breach of trust by a public official). On the basis of evidence provided by the Sûreté, a Justice of the Peace approved a search warrant in October 1992 for the purpose of seizing an enumerated list of SAIC documents from his residence.

The search was executed on the morning of November 2, 1992. The appellant was promptly arrested during the search and detained at police headquarters during the day without the benefit of counsel. At the appellant's residence, the officers seized a number of documents, including a number of personal items of the appellant which were not listed in the search warrant.

The appellant promptly filed a motion by nature of certiorari in Superior Court for return of the documents seized during the search of his premises. As well, the appellant sought damages against the Sûreté and the individual officers involved under s. 24(1) of the Charter for an infringement of his constitutional right to counsel during the detention. On December 4, 1992, Pinard J. granted the motion in part. The motions judge ordered the officers to return a number of the seized items which fell outside the bounds of the original search warrant. In so ordering, Pinard J. concluded that parts of the search were both [translation] "unreasonable and unlawful”. In relation to the detention, the judge found that the officers did not have reasonable and probable grounds to arrest and detain the appellant. Furthermore, he concluded that the circumstances of the detention violated the appellant's constitutional right to counsel. Accordingly, Pinard J. declared that the detention of the appellant was also [translation] "unlawful, arbitrary, and unreasonable". But the motions judge declined to adjudicate the appellant's claim for damages, as the claim should have been brought in a separate action.

A number of months following the search, on February 11, 1993, the appellant received the following notice by mail.

[translation] On October 27, 1992, following a motion by a designated representative of the Attorney General of Quebec, pursuant to the requirements of s. 185 of the Criminal Code , a judge of the Court of Sessions of the Peace for the province of Quebec, approved an authorization which permitted the interception of your private communications in the interests of the administration of justice. This authorization was valid from October 27, 1992 to November 15, 1992, inclusive.

The purpose of this letter is to advise you of this authorization, in accordance with s. 196 of the Criminal Code .

On March 22, 1993, the appellant served the Attorney General of Quebec and the relevant officers with a notice of default for damages arising from both the physical search and the wiretap. However, on April 30, 1993, before filing his statement of claim for damages, the appellant filed a motion before Paul J. of the Superior Court requesting a judicial order to open the sealed packet containing the application and affidavits which were filed in support of the surveillance authorization. In the same motion, he requested copies of the police tapes of his private communications.

The appellant sought access to these normally confidential materials in the hope of procuring evidence which demonstrated that the wiretap did not comply with the requirements of Part VI of the Code. In support of his request for access to the packet and the tapes, the appellant submitted that he had grounds to believe that the application and affidavits failed to mention his status as a lawyer in contravention of s. 185(1)(e) of the Code. As well, he contended that he had grounds for believing that the wiretap was the product of administrative pressure from officials within the SAIC. While the appellant fails to state so explicitly in his motion, I assume more generally that it is his contention that the wiretap authorization was not justified in the "best interests of the administration of justice" in accordance with s. 186(1)(a) as the application and affidavits did not disclose reasonable and probable grounds for a wiretap

On May 19, 1993, Paul J. denied the appellant's motion to open the packet and to compel disclosure of the tapes. At the outset, upon examining the application in private, Paul J. dismissed the appellant's argument that the wiretap application had failed to comply with s. 185(1)(e). As he stated:

[translation] There is one thing I wanted to make sure of, namely that your allegation that you were not designated as a lawyer was not borne out in the documents relating to the application to intercept your private communications. I confirm for you . . . that you were indeed designated as a lawyer, with your business address.

Paul J. then turned to the substance of the appellant's motion to open and examine the contents of the sealed packet under s. 187(1)(a)(ii). While the judge took notice of this Court's ruling in Dersch regarding the right of an accused to automatic access to the sealed packet, Paul J. underscored that the appellant stood in a different position from an accused. As Paul J. explained in an exchange with the appellant:

[translation] There is nothing in Garofoli [[1990] 2 S.C.R. 1421, to support a motion for access by a non‑accused], I know Garofoli almost by heart. . . . In all the decisions, all the decisions that are to that effect. Except if you seek a review, you may have the lawfulness of a decision reviewed, but in that case it would be in the context of an accused, not in your context at all, right now there is a vacuum because you are not an accused and you have no case pending before the civil or criminal courts. . . . [Emphasis added.]

Paul J. held that where the request for access under s. 187(1)(a)(ii) originates from a non-accused target, the Code requires that such authorizations remain confidential. Accordingly, he denied the appellant's motion. However, in so doing, he left open the possibility that such a request might be entertained by the judge who presided over the civil suit:

[translation] No, no, but you will not lose any right you may have to make that argument, but you must do so before the judge who hears the case. It is there that the argument must be made and not here on a motion. So if there is a civil action or any other kind of action, you will make your request to that judge, although whether you will be successful is another matter ‑‑ that is not for me to decide. But at the present time, I must tell you that the Code applies and it remains confidential, you received notification and if there are further civil or criminal developments, then the situation will alter dramatically. At present, the situation is like that and you are not entitled to the sealed packet. Unfortunately, I must deny your motion. . . . [Emphasis added.]

The Criminal Code provides no appeal to a provincial court of appeal from the decision of a judge who refuses access to the sealed packet. See Re Meltzer and The Queen (1986), 29 C.C.C. (3d) 266 (B.C.C.A.), at pp. 271-72, aff'd [1989] 1 S.C.R. 1764; R. v. Kumar (1987), 35 C.C.C. (3d) 477 (Sask. C.A.), at p. 479, leave to appeal denied, [1987] 1 S.C.R. ix. The appellant thus sought leave to appeal the judgment of Paul J. as a "final or other judgment . . . of the highest court of final resort in a province" under this Court's general jurisdiction vested by s. 40(1) of the Supreme Court Act , R.S.C., 1985, c. S-26 . We granted leave. The respondent subsequently filed a motion to dismiss the appeal on January 26, 1995, but this Court denied the respondent's motion on March 6, 1995.

The appellant seeks a judicial order for disclosure of two distinct items in support of his putative civil suit: (1) the application and supporting affidavits contained within the sealed packet; and (2) the tape recordings and prepared transcripts of his intercepted communications, which are not contained within the packet, but which remain in the custody of the Crown. In light of the Code's differential treatment of these materials, I will examine these two requests separately.

I agree with the manner in which my colleagues La Forest and Sopinka JJ. deal with the issue of whether the appellant has sufficient standing to seek an order under s. 187(1)(a)(ii). I am also in agreement that the appellant's motion for access, dated April 30, 1993, is properly governed by s. 187(1)(a)(ii) of the Code rather than by the amended s. 187(1.3) which came into force on August 1, 1993. See An Act to amend the Criminal Code, the Crown Liability and Proceedings Act and the Radiocommunication Act, S.C. 1993, c. 40, s. 27; SI/93-154. Furthermore, I share their view that in light of the legislative history of the similar wording of the new provision, the scope and content of judicial discretion under s. 187(1.3) are identical to the discretion vested by its predecessor. Accordingly, I would arrive at the same result and reasoning in this appeal if the appellant's motion was governed by the 1993 amendments to Part VI.

In addressing the appellant's request for access to the packet, it is essential to distinguish two conceptually distinct questions. First, it is necessary to determine the nature and content of the statutory discretion delegated by Parliament under s. 187(1)(a)(ii), as elaborated by the relevant case law. Second, one must then examine whether this judicial interpretation of the scope of the provision restricts s. 7 or 8 of the Charter , thus mandating a modification of the prevailing interpretation of this discretion in order to bring its exercise into conformity with the Charter . I note that if a restriction of a substantive Charter right is found, the existing interpretation of this statutory discretion may not be sustained under s. 1 of the Charter . Section 187(1)(a)(ii) confers a broad unstructured discretion to grant (or conversely, to refuse) access to the sealed packet. As I noted in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at pp. 1078-79, where a statute confers a broad "imprecise" administrative or judicial discretion which encroaches on a constitutional right in certain applications, such a discretion must be interpreted in a manner which accommodates the Charter even if a potential justification for the impugned applications of the discretion could otherwise be advanced under s. 1. See my comments in R. v. Swain, [1991] 1 S.C.R. 933, at pp. 1010-11; Schachter v. Canada, [1992] 2 S.C.R. 679, at p. 720.

This general framework of analysis properly reflects the approach of this Court in Dersch, which underscored that the pre-existing interpretation of s. 187(1)(a)(ii) continues to operate in relation to a non-accused, subject to a subsequent Charter challenge. As Sopinka J. stated for the majority, at p. 1517:

The judge still has a discretion [under s. 187(1)(a)(ii)] but, in the case of an accused, it would not be judicially exercised and in conformity with the Charter right unless the application is granted. This does not affect the discretion in respect of a request by a target or a member of the public who is not an accused person, to which different considerations would apply. This is not an amendment to the section, but rather an alteration of the judicial interpretation placed on it in light of the Charter . [Emphasis added.]

Regretfully, I do not believe that the analysis adopted by La Forest and Sopinka JJ. in the present appeal is faithful to this Court's earlier approach in Dersch. My two colleagues effectively subsume these two distinct questions into one constitutional inquiry, namely whether a non-accused enjoys an independent Charter right of access to the packet. Perhaps more seriously, the single-barrelled analysis adopted by my colleagues gives short shrift to Parliament's intent and purpose in adopting the provision. In my view, an appreciation of the careful balancing of interests that Parliament reached in adopting the provision must inform the determination of whether a non-accused person enjoys a constitutional right to examine such confidential court documents under a purposive and contextual examination of the Charter .

With those thoughts on the appropriate framework of analysis in mind, I turn to an examination of the nature and content of the statutory discretion delegated by Parliament under s. 187(1)(a)(ii).

(1) Under the existing interpretation of s. 187(1) (a)(ii) of the Criminal Code , may a non-accused surveillance target apply for a judicial order to open the sealed packet, and if so, under what conditions should such an order be granted?

The Protection of Privacy Act, S.C. 1973-74, c. 50, s. 2, as amended shortly afterwards by the Criminal Law Amendment Act, 1977, S.C. 1976-77, c. 53, was adopted to fill a troubling statutory void by establishing a comprehensive regime for the regulation of electronic surveillance. Prior to the Act, law enforcement officials were subject to few legal restrictions on their ability to intercept private communications, and the historical record suggests that this intrusive state power was frequently exercised well prior to Parliament's intervention. See Report of the Canadian Committee on Corrections, Toward Unity: Criminal Justice and Corrections (1969 (the Ouimet Report)); N. M. Chorney, "Wiretapping and Electronic Eavesdropping" (1965), 7 C.L.Q. 434; MacDonald Royal Commission (Second Report), Freedom and Security under the Law (1981), vol. 1, at p. 149. The core purpose of the Act was to enact a general regime for regulation of such surveillance in an effort to balance society's interest in the detection of crime, particularly organized crime, with an individual's right to personal privacy. The central means by which the Act effected its purpose was to impose a general ban on the interception of private communications in the absence of prior authorization. As this Court described the careful legislative balance of the Act in R. v. Duarte, [1990] 1 S.C.R. 30, at pp. 44-45:

Electronic surveillance plays an indispensable role in the detection of sophisticated criminal enterprises. Its utility in the investigation of drug related crimes, for example, has been proven time and again. But, for the reasons I have touched on, it is unacceptable in a free society that the agencies of the state be free to use this technology at their sole discretion. The threat this would pose to privacy is wholly unacceptable.

It thus becomes necessary to strike a reasonable balance between the right of individuals to be left alone and the right of the state to intrude on privacy in the furtherance of its responsibilities for law enforcement. Parliament has attempted to do this by enacting Part IV.1 of the Code. An examination of Part IV.1 reveals that Parliament has sought to reconcile these competing interests by providing that the police must always seek prior judicial authorization before using electronic surveillance. [Emphasis added.]

To enforce this ban, the Act armed the individual surveillance target with the means to retroactively challenge the legality of a wiretap following the termination of the surveillance. More specifically, s. 4 of the Act created a civil action in damages against the Crown in right of Canada for unlawful interception of private communications: Crown Liability Act, R.S.C. 1970, c. C-38, s. 7.2 (now the Crown Liability and Proceedings Act , R.S.C., 1985, c. C-50, s. 17(1)). This right of action has since been complemented by provincial laws which create a delictual right of action against provincial authorities and others who engage in the interception of private communications without lawful authorization. See, e.g., Civil Code of Québec, S.Q. 1991, c. 64, arts. 35, 36(2), 1457.

The Act, in large part, was modelled on comparable legislation adopted by the U.S. Congress under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, June 19, 1968, Pub. L. No. 90-351, Title III, § 802, now codified as 18 U.S.C. §§ 2510-20 (1994) (hereinafter "Title III"). In light of the "striking similarities" between the two statutes, commentators have concluded that the U.S. jurisprudence on Title III provides an "invaluable" source of guidance for issues arising under the Act. See D. Watt, Law of Electronic Surveillance in Canada (1979), at p. 1; D. A. Bellemare, L'écoute électronique au Canada (1981), at p. 3. This Court has relied on Title III as a helpful tool for interpreting the scope of Part VI in light of the "remarkable similarity" between the two legislative regimes: Lyons v. The Queen, [1984] 2 S.C.R. 631, at p. 680, per Estey J. However, this Court has drawn inferences from important differences between the two regimes: R. v. Thompson, [1990] 2 S.C.R. 1111, at p. 1137 (specific minimization requirement under Title III); Dersch, supra, at p. 1511 (specific requirement of delivery of application to accused prior to trial under Title III).

Under Part VI of the Criminal Code , law enforcement officials may apply for an authorization to execute an electronic surveillance upon an ex parte application filed with supporting affidavits to a designated judge. Under s. 186(1), a judge may authorize an interception of private communications if the judge is satisfied that "it would be in the best interests of the administration of justice to do so". This Court explained in Duarte, supra, at p. 45, that the "best interest of the administration of justice" requires, at a minimum, that law enforcement officials have demonstrated reasonable and probable grounds that an offence has been committed and that communications relating to the offence will be intercepted. If the court issues an authorization, the surveillance must be carried out in accordance with the terms and conditions of the authorization. Within 90 days following the expiration of the authorization, the Crown must then deliver a written notification to the surveillance target stating that an authorization had been issued and executed, but the notice is not required to disclose the contents and details of the authorization. See s. 196(1).

Following completion of the ex parte hearing for authorization, the Code dictates that the application and supporting affidavits are "confidential" and shall be "placed in a packet and sealed" by a designated judge. However, Parliament created a statutory mechanism for seeking a judicial order to open and examine the packet under s. 187(1)(a)(ii) (originally R.S.C. 1970, c. C-34, s. 178(1)(a)(ii)). The provision (since amended) reads as follows:

187. (1) All documents relating to an application made pursuant to section 185 or subsection 186(6) or 196(2) are confidential and, with the exception of the authorization, shall be placed in a packet and sealed by the judge to whom the application is made immediately on determination of the application, and that packet shall be kept in the custody of the court in a place to which the public has no access or in such other place as the judge may authorize and shall not be

(a) opened or the contents thereof removed except

(i) for the purpose of dealing with an application for renewal of the authorization, or

(ii) pursuant to an order of a judge of a superior court of criminal jurisdiction or a judge as defined in section 552; and

(b) destroyed except pursuant to an order of a judge referred to in subparagraph (a)(ii). [Emphasis added.]

The provision permits a broad range of unspecified parties to apply for an order under s. 187(1)(a)(ii). However, it provides no guidance as to what conditions would warrant a disclosure order. The virtually unanimous view is that Parliament originally intended to leave such issues to the discretion of the court rather than to create an automatic right to access to the packet to specific parties in specific circumstances. See Dersch, supra, at p. 1510, per Sopinka J. ("Parliament, therefore, intended to confer on the judge an unlimited discretion"); R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1479, per McLachlin J. ("[T]he matter is in the discretion of the judge hearing the application"); R. v. Durette, [1994] 1 S.C.R. 469, at p. 491, per Sopinka J. ("The judge hearing an application under this section has a broad discretion to decide whether or not to provide access"), and at p. 518, per L'Heureux-Dubé J. ("[The legislator] left the courts with the task of deciding the proper approach to the matter"). Nonetheless, the state's interest in the confidentiality of its investigations was intended to be a major consideration in the judicial exercise of this discretion. As Sopinka J. described this state interest in Dersch, supra, at p. 1510:

The purpose of the confidentiality provision of this section is apparently to ensure that the investigation is kept secret during the currency of the authorization and to protect informers, police techniques and procedures once the authorization is spent.

And as McLachlin J. expressed in her dissent in Garofoli, supra, at p. 1480: "Parliament's dominant intention was that the documents [within the packet] should remain confidential".

This particular statutory provision has since been amended by Parliament in response to this Court's rulings in Dersch and Garofoli. In 1993, Parliament recast Part VI to give legislative recognition to the accused's constitutional right to examine the packet prior to trial. The language of the amended provision reads as follows:

187. (1) All documents relating to an application made pursuant to any provision of this Part are confidential and, subject to subsection (1.1), shall be placed in a packet and sealed by the judge to whom the application is made immediately on determination of the application, and that packet shall be kept in the custody of the court in a place to which the public has no access or in such other place as the judge may authorize and shall not be dealt with except in accordance with subsections (1.2) to (1.5).

. . .

(1.3) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may order that the sealed packet be opened and its contents removed for the purpose of copying and examining the documents contained in the packet.

(1.4) A judge or provincial court judge before whom a trial is to be held and who has jurisdiction in the province in which an authorization was given may order that the sealed packet be opened and its contents removed for the purpose of copying and examining the documents contained in the packet if

(a) any matter relevant to the authorization or any evidence obtained pursuant to the authorization is in issue in the trial; and

(b) the accused applies for such an order for the purpose of consulting the documents to prepare for trial.

. . .

(4) Where a prosecution has been commenced and an accused applies for an order for the copying and examination of documents pursuant to subsection (1.3) or (1.4), the judge shall not, notwithstanding those subsections, provide any copy of any document to the accused until the prosecutor has deleted any part of the copy of the document that the prosecutor believes would be prejudicial to the public interest, including any part that the prosecutor believes could

(a) compromise the identity of any confidential informant;

(b) compromise the nature and extent of ongoing investigations;

(c) endanger persons engaged in particular intelligence‑gathering techniques and thereby prejudice future investigations in which similar techniques would be used; or

(d) prejudice the interests of innocent persons.

(5) After the prosecutor has deleted the parts of the copy of the document to be given to the accused under subsection (4), the accused shall be provided with an edited copy of the document. [Emphasis added.]

Under this new legislation, it is clear that both an accused person and a non-accused person are entitled to apply for access to the packet. However, consistent with Dersch, Parliament adopted a mandatory regime of disclosure for an accused person. Under the new legislation, an accused is entitled to apply for access to the packet to prepare for trial under either s. 187(1.3) or 187(1.4); following appropriate blacklining by the Crown under the procedure stipulated by s. 187(4), the Crown "shall" deliver the edited wiretap application and affidavits to the accused in accordance with s. 187(5). But in contrast to this mandatory regime, Parliament specifically chose to preserve a discretionary regime of disclosure in addressing applications by non-accused persons. A non-accused person may apply for access to the packet under s. 187(1.3), but Parliament specifically omitted to stipulate that the Crown “shall” deliver the contents of the packet in response to such a request.

The drafting of both s. 187(1)(a)(ii) and the recent s. 187(1.3) closely parallels the applicable U.S. legislation. Under the scheme of Title III, a wiretap application is similarly sealed following approval of the authorization. However, an individual who faces criminal prosecution on the basis of intercepted communications is entitled to examine the confidential application prior to trial; as noted in Dersch, at p. 1511, unlike Part VI of the Code, § 2518(9) of Title III specifically provides that copies of the wiretap application must be delivered to an accused 10 days before trial in order to extend the accused adequate opportunity to seek suppression of the wiretap evidence. On the other hand, where a non-accused individual seeks to examine the application, § 2518(8)(d) stipulates that a court enjoys a discretion to withhold access in the absence of a showing of "good cause". Section 2518(8) reads in part as follows:

§ 2518. Procedure for interception of wire or oral communications

. . .

(8)(a) . . .

(b) Applications made and orders granted under this chapter shall be sealed by the judge. Custody of the applications and orders shall be wherever the judge directs. Such applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for ten years.

. . .

(d) Within a reasonable time but not later than ninety days after the filing of an application for an order of approval under section 2518(7)(b) which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory which shall include notice of --

(1) the fact of the entry of the order or the application;

(2) the date of the entry and the period of authorized, approved or disapproved interception, or the denial of the application; and

(3) the fact that during the period wire, oral, or electronic communications were or were not intercepted.

The judge, upon the filing of a motion, may in his discretion make available to such person or his counsel for inspection such portions of the intercepted communications, applications and orders as the judge determines to be in the interest of justice. . . . [Emphasis added.]

In short, both s. 187(1)(a)(ii) and § 2518(8)(d) leave it to the court's discretion to balance the state's interest in the confidentiality of the packet against the individual's interest in privacy.

Before proceeding to examine the judicial interpretation of s. 187(1)(a)(ii), I wish to highlight one ambiguity in relation to the procedure for opening the packet which subsists notwithstanding the procedural detail of this Court's judgments in Dersch and Garofoli. The provision simply states that the packet shall not be opened in the absence of a judicial order. But it does not clarify whether a judge may temporarily open and examine the contents of the packet in camera (i.e., in private without disclosure to the parties) for the narrow purpose of ruling on a s. 187(1)(a)(ii) application, or whether a judge must render a ruling on a s. 187(1)(a)(ii) application without any reference to the materials within the packet. Moreover, a stark, literal reading of the provision would appear to suggest that the court must rule on such a motion while turning a blind eye to the contents of the packet. In this instance, it seems that Paul J. did indeed examine the contents of the packet in considering the application before him. In response to the allegation that the application did not mention the appellant's status as a lawyer, Paul J. informed the parties that the application did indeed specify the appellant's occupation in accordance with s. 185(1)(e).

In my view, the provision should be interpreted as permitting a judge to examine the contents of the packet in private for the restricted purpose of adjudicating a s. 187(1)(a)(ii) application. The confidentiality interests underlying the provision are simply not triggered when a competent judicial authority examines the contents of the packet in camera. As illustrated in this instance, such an examination would be helpful in promptly disposing of a motion for access where the alleged deficiencies of the application are simply not borne out on the face of the application. If an order for access is not issued, the relevant materials would be returned to the packet, with no disclosure of the contents to parties.

I note that U.S. courts have similarly concluded that a designated judge is entitled to examine the "sealed" wiretap application and authorization in determining whether to grant an accused or non-accused person access to the materials under § 2518(8)(d). For endorsement of a federal court's ability to examine the wiretap application in camera, see In re Lochiatto, 497 F.2d 803 (1st Cir. 1974), at p. 808; Application of the United States for an Order Authorizing the Interception of Wire Communications, 413 F.Supp. 1321 (E.D. Pa. 1976), at p. 1333; In the Matter of a Warrant Authorizing the Interception of Oral Communications, 708 F.2d 27 (1st Cir. 1983), at p. 28; Application of the United States for an Order Authorizing the Interception of Oral Communications at the Premises Known as Calle Mayaguez 212, Hato Rey, Puerto Rico, 723 F.2d 1022 (1st Cir. 1983), at p. 1027.

I now turn to examine the judicial understanding of the statutory discretion vested by s. 187(1)(a)(ii). The relevant case law spans some 16 years prior to this Court's ruling in Dersch, and it only deserves a brief summary in light of this Court's exhaustive survey of the prior jurisprudence in Dersch, supra, at pp. 1511-14, per Sopinka J., and more recently in Durette, supra, at pp. 518-28, per L'Heureux-Dubé J. In brief, prior to the advent of the Charter , Canadian courts ruled quite consistently that judicial discretion to open the sealed packet ought to be exercised sparingly in light of the state's strong interest in limiting the disclosure of its investigative techniques and the identity of its informers. More specifically, the courts held that once a judge had concluded that the face of the surveillance application raises reasonable and probable grounds for a search, the application and supporting materials should be sealed and should not be disclosed to the subject of the surveillance in the absence of rare and exceptional circumstances: Re Royal Commission Inquiry into the Activities of Royal American Shows Inc. (No. 3) (1978), 40 C.C.C. (2d) 212 (Alta. S.C.T.D.), at p. 219. In almost all the reported cases, the party seeking access was only able to obtain an order compelling disclosure of the contents of the packet upon a threshold showing that the authorization was obtained on the basis of fraud or wilful non-disclosure by the Crown. See, e.g., Re Miller and Thomas and The Queen (1975), 23 C.C.C. (2d) 257 (B.C.S.C.); Re Stewart and The Queen (1976), 30 C.C.C. (2d) 391 (Ont. H.C.); Re Regina and Kozak (1976), 32 C.C.C. (2d) 235 (B.C.S.C.), at p. 237; R. v. Haslam (1976), 3 C.R. (3d) 248 (Nfld. Dist. Ct.), at pp. 257-58. See also S. Cohen, Invasion of Privacy: Police and Electronic Surveillance in Canada (1983), at p. 97; Bellemare, supra, at pp. 353-56; Watt, supra, at pp. 248-52. This line of cases parallelled a similarly consistent body of authority which held that an accused could not challenge the legality of an authorization previously issued by a different judge in the absence of some showing of fraud or non-disclosure by the Crown. See R. v. Welsh and Iannuzzi (No. 6) (1977), 32 C.C.C. (2d) 363 (Ont. C.A.), at pp. 371-72; R. v. Gill (1980), 18 C.R. (3d) 390 (B.C.C.A.), at p. 400; Wilson v. The Queen, [1983] 2 S.C.R. 594, at pp. 599-600 and 604, per McIntyre J.

These courts concluded that Parliament's concern for confidentiality ought to be accorded considerable deference in the exercise of judicial discretion under s. 187(1)(a)(ii). The justification offered by Anderson J. (later J.A.) in Miller, at p. 288, for restricting access to the packet to exceptional circumstances is illustrative:

Another reason for holding that there is no right of review, is that, in my opinion, Parliament did not provide for or intend that the sealed packet be opened merely for the purpose of ascertaining whether grounds existed for quashing the authorization. I do not think that a judicial discretion (to open the packet) should be exercised on the basis that defence counsel wish to engage in a fishing expedition. Surely, at the very least, some grounds must be stated before an application to open the packet can succeed. If this were not so, the material which Parliament ordered should be kept secret would become a matter of public knowledge, in every case, where it was stated that the Crown wished to make use of private communications or evidence derived by the use of private communications. [Emphasis added.]

Furthermore, these cases attached great importance to the fact that the wiretap had already been the subject of a prior judicial authorization. Since a judge had already previously determined that the materials filed in support of the application raised reasonable and probable grounds for a search, the courts concluded that a party was not entitled to mount a collateral attack against the original authorization in the absence of at least some evidence which indicated that the authorization was procured on a defective basis. As Zuber J.A. underscored in Welsh and Iannuzzi, supra, at p. 371:

The authorization, once given, enables the authorities to proceed to a lawful interception [of private communications]. A second consideration of the adequacy of the material supporting the authorization by the trial Judge, for the purpose of determining retrospectively whether or not the interception was lawful, is inconsistent with the whole scheme of Part IV.1 of the Code.

This Court employed similar reasoning in Wilson, supra, in holding that a trial judge may not collaterally attack an authorization rendered by a designated judge under Part VI of the Code. As McIntyre J. explained for a 3:2 majority of the Court, at pp. 604-5:

[The cited authorities] confirm the well-established and fundamentally important rule, relied on in the case at bar in the Manitoba Court of Appeal, that an order of a court which has not been set aside or varied on appeal may not be collaterally attacked and must receive full effect according to its terms.

. . .

The question then is: has Parliament by the enactment of Part IV.1 of the Criminal Code altered the rule which would render the authorizations immune from collateral attack? In my opinion, the answer must be no.

The ability of a non-accused surveillance target to obtain access to the confidential packet under the predecessor of s. 187(1)(a)(ii) was specifically addressed in Re Zaduk and The Queen (1977), 37 C.C.C. (2d) 1 (Ont. H.C.). The applicant stood in a similar position to the appellant before this Court; he received notification of wiretap under the equivalent of s. 196(1) of the Code, but no criminal proceedings were ever brought against him. Galligan J. held that the principles of Miller, supra, and Stewart, supra, applied mutatis mutandis to the circumstances of a non-accused target, and thus the applicant was not entitled to access to both the authorization and packet in the absence of exceptional circumstances. As Galligan J. explained, at pp. 3-4, Parliament's interest in preserving the confidentiality of the packet should be the dominant consideration:

It is my opinion that all of the documents leading to and including the authorization are confidential, regardless of whether or not a charge is laid against the person who had been the object of an authorization. I can find nothing in the Code which makes any distinction with respect to confidentiality between cases where a charge is laid, and those where no charge is laid.

After considering all of the provisions of the Invasion of Privacy Part of the Code, it is my opinion that the intention of Parliament is that the confidence must be restricted solely to those who absolutely need to know, i.e., the law enforcement agency on whose behalf of the Attorney-General applies, the Judge who hears the application, and only such other persons who must be shown the authorization in order to permit the law enforcement agency to actually perform its surveillance, for example, the telephone company. I can find nothing to suggest that Parliament intended that a person who was the object of the authorization should be included within those who are entitled to see the authorization. [Emphasis added.]

The ruling of Galligan J. was affirmed by the Ontario High Court (1978), 38 C.C.C. (2d) 349, and by the Ontario Court of Appeal (1979), 46 C.C.C. (2d) 327. As Southey J. held at the High Court (at p. 352):

I agree entirely with the decision of Galligan, J., in this matter that the authorization, together with the other documents in connection with an application for an interception, are confidential, subject only to an order for disclosure made under [s. 187(1)(a)(ii)]. As was held by Galligan, J., that confidentiality continues notwithstanding that no charges are laid against the object of the interception.

In support of his conclusion, Southey J. drew attention to the limited content of the notice delivered to a surveillance target under the predecessor of s. 196(1) of the Code. Since Parliament explicitly chose to limit the substance of such notice to the bare fact that an interception had taken place, Southey J. reasoned that Parliament must have wished to prevent further disclosure of the facts surrounding the wiretap authorization or its execution. As he stated, at pp. 352-53:

It would be quite inconsistent with the confidentiality of the authorization and the other documents, in my judgment, to interpret [s. 196(1)] as requiring the Attorney-General in a notification to give to the object of the interception the information contained in such confidential documents.

[Counsel] pointed out that Parliament went into great detail in [s. 186(4)] in specifying the particulars to be contained in an authorization and in [s. 195(1)] in specifying the particulars to be contained in the annual report regarding interceptions to be given by the Solicitor-General. Having gone to such detail in those sections, it seems unlikely that Parliament could have intended the Attorney-General to be required in a notification under [s. 196(1)] to give the detailed information requested by the applicant, in the absence of any express provision in [s. 196(1)] requiring that such information be given. If Parliament had intended that such information be contained in a notification, it would have so provided in [s. 196(1)], in my judgment. [Emphasis added.]

This Court granted leave to appeal in Zaduk on this important question of law, [1980] 1 S.C.R. xiii, but the appeal was subsequently discontinued on November 25, 1986, [1986] 2 S.C.R. x.

This general approach mirrors the interpretation of judicial discretion under § 2518(8) adopted by U.S. courts. Under federal law, where the government seeks to initiate a prosecution "in any trial, hearing, or other proceeding" against the subject of an electronic surveillance under Title III, the government must deliver a copy of the wiretap authorization and application to the subject within 10 days prior to trial (§ 2518(9)). Upon receipt of these materials, the subject may seek suppression of the wiretap evidence on the basis that the "communication was unlawfully intercepted" (§ 2518(10)(a)(i)). In the absence of any such "trial, hearing, or other proceeding", a judge may only disclose the sealed materials "upon a showing of good cause" (§ 2518(8)(b)). Similar to our legislators, the congressional framers were of the view that such materials should be treated "confidentially", as "they may be expected to contain sensitive information" (Senate Report No. 1097, 90th Cong., 2nd Sess., reprinted in [1968] U.S.C. Cong. & Admin. News 2112, at p. 2194).

Pursuant to these legislative directives, federal courts have concluded that Title III vests a judge with a measure of discretion to grant a non-accused's motion for access to the confidential wiretap application. More specifically, a judge exercising his or her discretion under § 2518(8)(d) must balance the government's interest in secrecy against the target's interest in privacy. Where the target is neither a potential accused nor a subpoenaed witness in a grand jury investigation, the government's interest in secrecy is accorded even greater weight. See Application of the United States for an Order Authorizing the Interception of Wire Communications, supra, at pp. 1332-33 (motion for access denied). If the government's interest is sufficiently strong, the judge will simply deny access and adjudicate the lawfulness of the original authorization in camera. See Application of the United States for an Order Authorizing the Interception of Wire and Oral Communications, 495 F.Supp. 282 (E.D. La. 1980), at p. 284 (motion for access denied); In the Matter of a Warrant Authorizing the Interception of Oral Communications, supra, at p. 28 (motion for access denied); Application of the United States for an Order Authorizing the Interception of Oral Communications at the Premises Known as Calle Mayaguez 212, Hato Rey, Puerto Rico, supra, at pp. 1026-27 (motion for access denied).

As a matter of judicial practice, federal courts have been reluctant to grant a motion by a non-accused under § 2518(8)(d). This practice is especially true where a non-accused moves for discovery in the course of an ongoing grand jury investigation. As one learned author notes, "[a]lmost without exception, such motions have been denied" (C. S. Fishman, Wiretapping and Eavesdropping (1978), at § 220). See also J. G. Carr, The Law of Electronic Surveillance (1986 (loose-leaf)), vol. 2, at § 7.2(b)(1). Some courts have further held that in the case of a non-accused party who falls outside § 2518(9) there must be a "factual finding of good cause" in order for access under § 2518(8)(d) to be granted. See Applications of Kansas City Star, 666 F.2d 1168 (8th Cir. 1981), at p. 1176 (motion by non-accused, non-target newspaper denied). See also Petition of Leppo, 497 F.2d 954 (5th Cir. 1974), at p. 956 (motion by non-accused target with no civil suit pending denied). However, it has been suggested that judicial discretion under the provision might be exercised in favour of a non-accused who is pursuing a civil suit for unlawful interception of communications where grand jury proceedings have been terminated. See Application of the United States for an Order Authorizing the Interception of Wire Communications, supra, at p. 1335. See also Carr, supra, at § 7.3(a)(2)(B), p. 7-38 (judge must balance plaintiff's need for disclosure against state's claim of privilege of confidentiality).

Against this canvas, it is possible to paint an accurate picture of the nature and scope of the judicial power under s. 187(1)(a)(ii). The provision vests a designated judge with a broad discretion to open the sealed packet for the purpose of granting an interested party access to its contents subject to appropriate editing. The provision, on its face, does not limit applications for access to interested parties who face criminal prosecution. However, consistent with Parliament's express intent, the contents of the packet remain presumptively confidential. In light of the crucial fact that a competent judge will have already examined and approved a surveillance application prior to its execution under Part VI, Canadian courts have properly concluded that the statutory discretion to open the packet should normally only be exercised upon a preliminary showing which suggests that the initial authorization was obtained in an unlawful manner. It is telling that American courts, with their extensive experience in supervising electronic surveillance of organized crime, have arrived at a similar interpretation of the scope of judicial discretion vested by the analogous provision of Title III.

As the previous cases indicate, an interested non-accused party who seeks access to the packet must demonstrate more than a mere suspicion of police wrongdoing; he or she will normally be compelled to produce some evidence which suggests that the authorization was procured through fraud or wilful non-disclosure by the police. But such a judicial order may well be justified in cases beyond circumstances of potential fraud or non-disclosure. As this Court has repeatedly stressed, the statutory power to open the sealed packet ultimately remains a matter of judicial discretion which should be exercised upon a careful balancing of the competing interests of the individual and law enforcement. Accordingly, it would be inappropriate to delimit the full range of conceivable situations where such an order might be warranted. But without exhausting the breadth of judicial discretion under s. 187(1)(a)(ii), it would seem to me that a larger pattern of abusive conduct by law enforcement authorities which occurred contemporaneously with the acquisition of a surveillance authorization might be sufficient to raise an inference that the original authorization was obtained unlawfully and that access should be granted. That thought aside however, the task of elaborating the full scope of judicial discretion under s. 187(1)(a)(ii) is properly left to future courts.

I reiterate that this Court's majority holding in Dersch did nothing to undermine this accepted interpretation of judicial discretion under s. 187(1)(a)(ii). Dersch simply held that this interpretation of the Criminal Code must be altered in the discrete circumstances where an accused target applies for access to the packet in order to give effect to his right to full answer and defence under the Charter . But outside such circumstances, the previous understanding of s. 187(1)(a)(ii) remained unimpugned. Thus, where a non-accused target (or for that matter, an interested third party) applies for an order to open the packet, the cases leading up to Zaduk represent the applicable authorities defining the scope of the judicial power to open the sealed packet.

(2) Should the existing interpretation of the scope of the judicial power under s. 187(1) (a)(ii) of the Criminal Code be modified to give effect to a non-accused surveillance target's right under s. 8 of the Charter ?

The question remains whether this interpretation of a federal statute must be now altered to accommodate the individual's constitutional protection against unreasonable search and seizure under s. 8 of the Charter . My learned colleagues La Forest and Sopinka JJ. hold, at para. 97, that where a non-accused wiretap target applies for access to the packet, judicial discretion under s. 187(1)(a)(ii) must be automatically exercised in favour of access to give effect to the constitutional protection against unreasonable search and seizure. With respect, I cannot agree. A purposive and contextual analysis of s. 8 must take into account Parliament's delicate balance of competing policy considerations in adopting a comprehensive regime of regulation under Part VI. Under such a purposive and contextual approach, where a wiretap target seeks access in the absence of any pending prosecution and in the mere hope of grounding a civil action for damages, I believe that the existing understanding of judicial discretion under s. 187(1)(a)(ii) readily satisfies the exigencies of the Charter .

It is well established that a surreptitious interception of private communications by the state constitutes a "search or seizure" within the meaning of s. 8: Duarte, supra, at p. 46; R. v. Wiggins, [1990] 1 S.C.R. 62, at p. 67. Consistent with the constitutional standard of Hunter v. Southam Inc., [1984] 2 S.C.R. 145, an interception executed on less than reasonable and probable grounds will violate the requirements of s. 186(1)(a) and thus constitute an "unreasonable search or seizure" under s. 8. The individual subject of such an unlawful interception is entitled to pursue either a delictual action in damages under the Civil Code of Québec or the Crown Liability and Proceedings Act (against the Crown in right of Canada), or a constitutional action in damages under s. 24(1) of the Charter .

Against this backdrop, my colleagues La Forest and Sopinka JJ. conclude that the target of an interception under Part VI must be entitled to open and examine the contents of the packet to avail themselves of their constitutional right under s. 8, even where the target does not face criminal prosecution. My colleagues submit, at paras. 95-96, that if a surveillance target was not entitled to examine the original application and supporting affidavits, he or she would effectively be deprived of the evidentiary means to contest the lawfulness of the wiretap authorization and to invoke his or her right to a civil or constitutional remedy. Thus, in their view, the constitutional protection under s. 8 must necessarily include a complementary right to examine the confidential materials contained within the packet so that a surveillance target is equipped with the means to challenge the legality of the wiretap search. This conclusion, they argue, is consistent with this Court's holding in Dersch. See, similarly, McGrady, Askew & Fiorillo v. Canada, [1995] 7 W.W.R. 305 (N.W.T.S.C.).

With respect, the logic of Dersch is simply inapplicable to the case at bar. In Dersch, this Court held that judicial discretion to open the sealed packet under the predecessor of s. 187(1)(a)(ii) must be automatically exercised in favour of an accused surveillance target. But the reasoning in Dersch revolved around an accused's right to disclosure as part of his or her right to full answer and defence under s. 7. As Sopinka J. held clearly in Dersch, at p. 1514, "denial of access constitutes a denial to make full answer and defence". He elaborated the constitutional foundation of the Court's reasoning as follows, at pp. 1516-17:

Section [187(1)(a)(ii)], as I have pointed out above, confers on a judge a wide-open discretion to order the packet to be opened. A series of cases has filled the gap in the legislation by reading in certain criteria for the exercise of that discretion in the case of an application for access by an accused person. Those criteria are very restrictive. A series of cases since the Charter has questioned those restrictions in light of the Charter guarantee of full answer and defence. They hold that this right requires disclosure to an accused. The judge still has a discretion but, in the case of an accused, it would not be judicially exercised and in conformity with the Charter right unless the application is granted. [Emphasis added.]

In Durette, Sopinka J. similarly characterized the ruling in Dersch exclusively in terms of an accused's right under s. 7. As he wrote, at pp. 491-92:

The judge hearing an application under [s. 187(1)(a)(ii)] has a broad discretion to decide whether or not to provide access to the packet. However, in the case of an accused, that discretion would not be exercised judicially or in conformity with the right under the Canadian Charter of Rights and Freedoms to make full answer and defence unless access was provided: Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505. [Emphasis added.]

The majority in Dersch invoked s. 8 in only a single instance in its judgment, and then only in the course of elaborating the content of an accused's right under s. 7. The majority noted that an accused would also be denied the right to full answer and defence if he or she were deprived of the opportunity to challenge potentially inadmissible evidence under the Code and the Charter . As Sopinka J. explained, at pp. 1514-15:

The presumption of innocence requires the prosecution to prove that the accused is guilty beyond a reasonable doubt. This must be done by admissible evidence. Part IV.1 provides that evidence of intercepted private communication is admissible only if lawfully obtained. To be admissible, the evidence must be obtained pursuant to an authorization that complies with the dictates of the provisions of Part IV.1. Under s. 8 of the Charter , the accused has acquired a constitutional right to be secure against unreasonable search or seizure. Because an unlawful search will be an unreasonable one, s. 8 also confers on the accused the right to challenge the lawfulness of a search or seizure of which the accused is the target. That right would be hollow if it did not permit access to the sealed packet. [Emphasis added.]

The majority continued, at p. 1516, reiterating that the right to full answer and defence mandates that the accused be given "the opportunity to test the admissibility of a piece of evidence according to the ordinary rules that govern the admissibility of the evidence".

It is thus apparent that a non-accused surveillance target such as the appellant cannot rely on Dersch to support a claim of automatic access to the packet under the Charter . The appellant faces no imminent criminal prosecution. He has no basis for seeking disclosure to effectuate his constitutional right to full answer and defence, nor does he have any need to challenge the reception of potentially inadmissible evidence. Indeed, the majority in Dersch acknowledged that different considerations ought to govern the exercise of judicial discretion under s. 187(1)(a)(ii) where a non-accused target or an interested third party applies for access to the packet. As the majority stated, at p. 1517:

The judge still has a discretion [under s. 187(1)(a)(ii) to open the packet] but, in the case of an accused, it would not be judicially exercised and in conformity with the Charter right unless the application is granted. This does not affect the discretion in respect of a request by a target or a member of the public who is not an accused person, to which different considerations would apply. [Emphasis added.]

Upon reflection, the relevant "considerations" persuade me that a non-accused surveillance target does not similarly enjoy automatic access to the sealed packet under s. 8 of the Charter . There is nothing in the history or purpose of s. 8 to suggest that the subject of a search and seizure enjoys an absolute right to examine confidential authorizing materials held by the state upon mere suspicion of wrongdoing by law enforcement authorities. Indeed, outside the wiretapping domain, this Court has repeatedly held that a criminal accused does not enjoy an absolute right to disclosure of confidential investigative information held by the state under the right to full answer and defence. As this Court held in R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 339, the Crown's obligation to disclose all relevant information prior to trial "is not absolute". Under Stinchcombe and its progeny, the Crown is not obliged to disclose information which is clearly irrelevant, beyond the control of the prosecution, or protected by a recognized form of privilege. See R. v. Egger, [1993] 2 S.C.R. 451, at pp. 465-67; R. v. Chaplin, [1995] 1 S.C.R. 727, at pp. 739-40; R. v. O'Connor, [1995] 4 S.C.R. 411, at pp. 428-29. As Sopinka J. elaborated in Durette, supra, at p. 495, the Crown may justify non-disclosure in circumstances where "the public interest in non-disclosure outweighs the accused's interest in disclosure".

For instance, the Crown's obligation of disclosure under Stinchcombe remains subject to the "informers privilege" at common law: see Solicitor General of Canada v. Royal Commission of Inquiry (Health Records in Ontario), [1981] 2 S.C.R. 494, at pp. 535-36; Bisaillon v. Keable, [1983] 2 S.C.R. 60, at p. 93; R. v. Scott, [1990] 3 S.C.R. 979, at pp. 994-95. Sopinka J. and I indicated in O'Connor, supra, at p. 434, that in some circumstances the scope of the traditional "informers privilege" may be forced to yield to the constitutional demands of s. 7 given the compelling "societal interest in preventing a miscarriage of justice". See, e.g., D. M. Tanovich, "When does Stinchcombe Demand that the Crown Reveal the Identity of a Police Informer?" (1995), 38 C.R. (4th) 202. But the important point remains that even in the context of a criminal trial, the individual's right to full answer and defence must be balanced against -- and may at some point yield to -- the state's competing interest in preserving the confidentiality of its investigations and the safety of its informers.

Similarly, I believe that in defining a non-accused's right under s. 8 to obtain confidential wiretap documents held by the state, the individual's right to contest an invasion of privacy must be weighed against the state's legitimate interest in protecting the secrecy of its investigations. Where an individual does not face the jeopardy of the criminal process, I believe that greater weight must be attached to state's interest in confidentiality. As this Court has repeatedly stressed, the meaning and content of the constitutional guarantees of the Charter will vary according to the relevant context. See, e.g., Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at pp. 1355-56, per Wilson J.; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, at pp. 224-25, per Cory J.; R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 647, per L’Heureux-Dubé J.; R. v. Laba, [1994] 3 S.C.R. 965, at pp. 1000-1001, per Sopinka J. Pursuant to this contextual approach, we have noted that the content of the legal rights of the Charter will often be interpreted more flexibly where the relevant state action does not threaten the individual with the risk of imprisonment. See Wholesale Travel Group, supra, at p. 189, per Lamer C.J. (application of s. 7 to regulatory offence with penalty of imprisonment); R. v. Pontes, [1995] 3 S.C.R. 44, at pp. 68-69, per Cory J. (application of s. 7 to regulatory offence with no penalty of imprisonment). Similarly, in defining the content of s. 8 of the Charter , we have held that the standard of "reasonableness" in assessing the constitutionality of a search and seizure must be defined less onerously in the regulatory context as opposed to the criminal process. See, e.g., Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at pp. 505-8, per La Forest J.; R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627, at pp. 643-45, per Wilson J. But as I reiterated in my concurring reasons in 143471 Canada Inc. v. Quebec (Attorney General), [1994] 2 S.C.R. 339, at pp. 347-49, the content of s. 8 should not be defined according to a rigid, formal classification of regulatory and criminal offences.

Applying these established principles of Charter analysis, I find that the existing interpretation of s. 187(1)(a)(ii), as applied to a request for access to the packet by a non-accused surveillance target, does not offend s. 8 of the Charter . An individual who has received notification that he or she has been subjected to a wiretap does indeed have an important privacy interest in securing the necessary documents to contest the lawfulness of such a search. But where that individual is not threatened by criminal prosecution and imprisonment, this important interest must be balanced against the state's pressing interest in preserving the secrecy of the packet. The high standard of disclosure of Stinchcombe was justified, at p. 336, on the basis that full disclosure is "one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted". As McLachlin J. reiterated in Seaboyer, supra, at p. 611, courts have been "extremely cautious" in restricting an accused's power to call evidence given "the fundamental tenet of our judicial system that an innocent person must not be convicted". But where the individual faces no risk of the stigma of conviction, the justification for such a strict standard is accordingly diminished.

By contrast, the state's interest in protecting the confidentiality of its investigative methods and police informers remains compelling. The reality of modern law enforcement is that police authorities must frequently act under the cloak of secrecy to effectively counteract the activities of sophisticated criminal enterprises. In that endeavour, electronic surveillance represents one of the most vital and important arrows in the state's quiver of investigative techniques, particularly in the prosecution of drug offences. As Sopinka J. noted in R. v. Grant, [1993] 3 S.C.R. 223, at p. 241, drug trafficking represents a "pernicious scourge in our society", and in recent years over 90 percent of surveillance authorizations granted under Part VI involved the interception of communications relating to the trafficking of narcotics. See Solicitor General of Canada, Annual Report on the Use of Electronic Surveillance (1993), at p. 22 (average of 91.3 percent over five years).

The effectiveness of such surveillance would be dramatically undermined if the state was routinely required to disclose the application and affidavits filed in support of a surveillance authorization to every non-accused surveillance target. The wiretap application will often provide a crucial insight into the modus operandi of electronic surveillance, and regular disclosure would permit criminal organizations to adjust their activities accordingly. Perhaps most importantly, the application and affidavits are often premised exclusively on information delivered to the authorities by police informers. The crucial need for protecting the identity of informers was recently stressed in Scott, supra, at p. 994, per Cory J.:

The value of informers to police investigations has long been recognized. As long as crimes have been committed, certainly as long as they have been prosecuted, informers have played an important role in their investigation. . . .

The role of informers in drug-related cases is particularly important and dangerous. Informers often provide the only means for the police to gain some knowledge of the workings of drug trafficking operations and networks. It has been estimated that in the United States some ninety-five per cent of all federal narcotics cases involve the work of informers . . . .

Trafficking in narcotics is a lucrative enterprise. The retribution wreaked on informers and undercover officers who attempt to gather evidence is often obscenely cruel. Little assistance can be expected from informers if their identity is not protected. There can be no relationship of trust established by the police with informers without that protection. If the investigation of drug-related crime is to continue then, to the extent it is possible, the identity of informers must be protected. [Emphasis added.]

The procedural alternative of automatic disclosure with appropriate editing, well elaborated by this Court in Garofoli, supra, will not always be sufficient to protect the interests of law enforcement. I reiterate that in its recent amendments to Part VI, Parliament specifically chose to adopt a discretionary scheme of disclosure for non-accused persons under s. 187(1.3) as opposed to a scheme of automatic disclosure coupled with editing under ss. 187(1.4) and 187(5). In so doing, Parliament clearly accepted that there was an important qualitative difference between a regime of no disclosure and a regime of disclosure coupled with editing. An edited wiretap application, with the name of a police informer properly blacklined, may still leave significant clues as to the identity of the informer. Sophisticated criminal enterprises may be able to identify the informer on the basis of the mere content of a leak. The release of a diligently edited wiretap application may thus unintentionally reveal the identity of a police informer, with potentially fatal consequences. In light of such risks, Parliament, relying on its legislative experience and its vast institutional resources, made a reasoned judgment that it was preferable to enact a general rule of discretionary non-disclosure.

I note that in non-constitutional domains, this Court has exhibited a similar reluctance to accord the individual an automatic right to discovery of sensitive and confidential documents held by the state in support of a civil proceeding for damages. In Carey v. Ontario, [1986] 2 S.C.R. 637, this Court addressed the right of a civil litigant to discovery of confidential Cabinet documents. My colleague La Forest J. ruled on behalf of a unanimous bench that a civil litigant's right to discovery must on occasion yield to the state's interest in confidentiality and secrecy. As he stated, at pp. 647-48:

It is obviously necessary for the proper administration of justice that litigants have access to all evidence that may be of assistance to the fair disposition of the issues arising in litigation. It is equally clear, however, that certain information regarding governmental activities should not be disclosed in the public interest. The general balance between these two competing interests has shifted markedly over the years. . . .

This difference in emphasis [across the years] resulted in part from the manner in which the interests collided in particular cases. The need for secrecy in government operations may vary with the particular public interest sought to be protected. There is, for example, an obvious difference between information relating to national defence and information relating to a purely commercial transaction. On the other side of the equation, the need for disclosure may be more or less compelling having regard to the nature of the litigation (e.g. between a criminal and civil proceeding) and the extent to which facts may be proved without resort to information sought to be protected from disclosure. [Emphasis added.]

Pursuant to these competing considerations, La Forest J. rejected a rule of automatic disclosure or absolute privilege in favour of a contextual approach which balanced the interests of the individual and the state in light of the particular circumstances of the case, i.e., the nature of the documents, the nature of the civil proceedings, etc. As he described the governing principle, at p. 670: "Cabinet documents like other evidence must be disclosed unless such disclosure would interfere with the public interest" (emphasis added).

The existing judicial interpretation of s. 187(1)(a)(ii), in my view, strikes an appropriate balance between the individual's interest in contesting the validity of an authorized interception of communications and the public's interest in the confidentiality of law enforcement techniques and police informers. Under Part VI, where an individual receives notice of an interception under s. 196(1), a judge will have already examined the original wiretap application and supporting affidavits and have concluded that they demonstrate reasonable and probable grounds for a search. In light of the existence of prior authorization in addition to the other procedural and substantive protections contained within Part VI, I believe that Canadian courts have adequately balanced the relevant interests in concluding that the statutory discretion to open the packet should normally only be exercised in favour of a non-accused target upon some evidence that the initial authorization was obtained in an unlawful manner. Accordingly, under a purposive and contextual interpretation of the Charter , I believe that the prevailing interpretation of the judicial power to open a sealed packet under s. 187(1)(a)(ii), as applied to a request for access by a non-accused target of electronic surveillance, satisfies the constitutional protection against unreasonable searches and seizures.

This appeal is only concerned with the right of a surveillance target who seeks access to the sealed packet under s. 187(1)(a)(ii) following the termination of the surveillance and in the absence of any pending criminal proceeding. As my colleagues point out, at para. 118, this appeal does not address the right of a non-targeted interested third party who seeks to examine the contents of the packet. But I cannot ignore some of the broader implications of their reasoning today. In filing an application for an authorization under s. 185(1)(e) of Part VI, law enforcement authorities are obliged to identify the specific targets whose private communications they believe will assist in the investigation of an offence. But once an authorization is granted and a wiretap is executed, the authorities will frequently intercept private communications of non-targeted third parties. As Sopinka J. noted in R. v. Thompson, supra, at pp. 1143-44:

In any authorization there is the possibility of invasion of privacy of innocent third parties. For instance a wiretap placed on the home telephone of a target will record communications by other members of the household. This is an unfortunate cost of electronic surveillance. But it is one which Parliament has obviously judged is justified in appropriate circumstances in the investigation of serious crime.

The risk of interception of the private conversations of third parties is greater where the authorization for surveillance is executed on a place such as a public phone or a hotel room. See Thompson, supra, at p. 1145.

The reasoning of my colleagues would suggest that a non-targeted third party would also be automatically entitled to examine the sealed packet under s. 187(1)(a)(ii). As my colleagues stress, at para. 95, "s. 8 applies to everyone". The interception of an individual's private communications by law enforcement authorities pursuant to an unlawful authorization will result in an infringement of s. 8 of the Charter , whether or not the individual was targeted in advance. Thus, the reasoning goes, all such individuals must be entitled to examine the contents of the packet in order to properly contest the original authorization and to avail themselves of their right to a constitutional remedy under s. 24(1). Although this issue remains undecided today, I fear that the logic of La Forest and Sopinka JJ. practically compels such a result. But such a result would effectively eviscerate Parliament's express legislative intent to preserve the contents of the packet as confidential. If an accused target, a non-accused target, and an intercepted third party are all entitled to automatic access to the packet, the only remaining individual who would not be prima facie entitled to examine the packet would be a civic-minded member of the public. Such an interpretation would further erode any remaining "discretion" in the designated judge to deny access to the packet in the interests of law enforcement: see Dersch, supra, at p. 1510 (s. 187(1)(a)(ii) vests an "unlimited discretion"); Durette, supra, at p. 491 (s. 187(1)(a)(ii) vests a "broad discretion"). With respect, I do not believe that the Charter compels such a dramatic repeal of the judicial discretion vested under the regime of Part VI of the Criminal Code .

(3) Did the judge err in this instance in declining to exercise his judicial discretion under s. 187(1) (a)(ii) of the Criminal Code in favour of granting the appellant access to the sealed packet?

The judge in this instance denied the appellant's motion for a judicial order opening the sealed packet, on the ground that a non-accused target is not entitled to apply for such an order under s. 187(1)(a)(ii) pursuant to the principles of Dersch and Garofoli. In any case, the judge was of the view that the appellant's motion was both premature and misplaced, as the appellant should have waited to file his motion with the judge who would preside over his civil action in damages.

With all due respect, I find that the judge erred in automatically rejecting the appellant's motion to open the sealed packet. A non-accused target may indeed apply for an order under s. 187(1)(a)(ii), and a target may indeed bring such a motion before the filing of his or her civil suit. However, as elaborated previously, a non-accused target is not entitled to automatic access to the packet. Parliament vested a designated judge with the discretion under s. 187(1)(a)(ii) of the Code to open a sealed packet and to selectively distribute copies of its contents, subject to editing. But consistent with Parliament's express and compelling interest in preserving the confidentiality of the packet, where a target applies for access to the packet outside of an ongoing criminal prosecution, the discretion vested under s. 187(1)(a)(ii) should generally only be exercised in limited circumstances where the target makes a preliminary showing which tends to indicate that the initial authorization was obtained in an unlawful manner.

The judge failed to accord the appellant an adequate opportunity to make such a preliminary showing. As such, I would allow the appeal on this ground alone and remit the matter to the Quebec Superior Court for reconsideration of the appellant's motion in accordance with the foregoing discussion of the scope of the judicial power under s. 187(1)(a)(ii) of the Code.

In his motion for access to the sealed packet under s. 187(1)(a)(ii), the appellant has also sought simultaneous disclosure of copies of the actual tape recordings of his intercepted communications, as well as any typed transcripts of the communications which the Crown may have produced. The appellant submits that he needs these materials to pursue a potential civil action for damages for invasion of privacy, as these recording materials will assist him in determining whether the surveillance was authorized and executed in a manner which complied with Part VI of the Code.

(1) Under s. 187(1)(a)(ii) of the Criminal Code , in addition to seeking an order to open the sealed packet, may a non-accused surveillance target apply for judicial order compelling the Crown to disclose the recording materials resulting from the surveillance, and if so, under what conditions should such an order be granted?

The appellant’s request does not have any grounding in the Criminal Code . On its face, the judicial power under s. 187(1)(a)(ii) to grant disclosure to the packet does not encompass disclosure of the recording materials; the provision speaks only of access to "documents", and the actual tapes remain in the custody of the Crown rather than within the "sealed packet". The Code does contemplate a procedural means for compelling disclosure of the recording materials within the context of a criminal trial. Where the Crown seeks to introduce the contents of an intercepted communication (of any person) into evidence against an accused in a criminal proceeding, s. 189(5) of the Code stipulates that the Crown must give reasonable notice to the accused followed by delivery of a transcript of the communication and a statement describing the time, place and date of the communication. Upon receipt of such a notice, an accused may seek a judicial order under s. 190 for additional disclosure of the "particulars" of the intercepted communication, which could conceivably include disclosure of the full set of recording materials: J. W. Jardine, "Defence Attacks", in Continuing Legal Education Society of British Columbia, Search & Seizure and Wiretap (1991), c. 6.2, at pp. 6.2.06 and 6.2.07. See s. 193(2)(c) (orders under ss. 189(5), 190 exempt from the general statutory ban on disclosure of private communications). But outside a criminal proceeding, the Code does not provide a former surveillance target with any avenue for disclosure of the recording materials.

However, notwithstanding the silence of the Code, my colleagues La Forest and Sopinka JJ. hold that a non-accused target who demonstrates that a wiretap has violated his or her rights under s. 8 may obtain an order for disclosure of the recording materials as a just and appropriate remedy under s. 24(1) of the Charter . My colleagues thus propose that following automatic disclosure of the materials within the packet, the non-accused target may petition the court for an order compelling the Crown to disclose and deliver copies of the original recording tapes and any available transcripts. If the target is seeking to challenge the legality of the execution of the search, the Crown is obliged to furnish the court and the target with affidavits describing the manner in which the wiretap search was conducted, in addition to all available documentary logs of the executed search. To obtain an order for disclosure of the recording materials, the target must satisfy the court on the basis of the foregoing materials and in the balance of probabilities that his or her private communications were unlawfully intercepted. As my colleagues note, this procedure will, in many respects, reflect the procedure outlined in Garofoli, supra, for challenging the legality of a wiretap search in the course of a trial. If the non-accused target is successful in demonstrating that the wiretap search was illegal in its authorization or in its execution, he or she will be entitled to an order for disclosure of the recording materials, subject to such appropriate conditions as the court may impose. In most cases, once the search has been deemed illegal, the Crown will be responsible for bearing the cost of disclosure of the tapes. The non-accused target may then proceed to the civil courts with his or her action for damages, armed with a declaratory ruling that the search was illegal and with the recording materials as evidence of prejudice suffered. However, if the non-accused is not successful in such a demonstration, he or she will be denied access to the recording materials, and he or she will be estopped from further litigating the legality of the wiretap search.

I, of course, disagree with my colleagues as to the crucial initial hurdle that a non-accused target must meet to gain access to the packet under s. 187(1)(a)(ii). But once a target surpasses this hurdle, subject to my comments below, I would substantially adopt the procedure outlined by La Forest and Sopinka JJ. for subsequent disclosure of the recording materials. In my view, this procedure, by establishing a mechanism for disclosure which reflects the actual relevance of the recording materials to an action for damages for unlawful interception of private communications, reaches an appropriate balance between the individual's interest in vindicating his or her rights under ss. 8 and 24(1) of the Charter and the state's proprietary interest in the fruits of its confidential investigations.

The non-accused target does indeed have an interest in the disclosure of the recording materials to give effect to his or her civil and constitutional remedies against unreasonable search and seizure. However, this interest is limited, as the target will generally not need access to the tapes to challenge the legality of the surveillance and to establish the liability of the Crown. If the target is seeking to challenge the legality of the authorization, the recording materials will generally not be relevant to establishing liability. The materials, representing the fruits of a surveillance, will not assist the target in determining whether the authorization was originally granted on adequate reasonable and probable grounds in accordance with Part VI. If the target is seeking to challenge the lawfulness of the execution of the surveillance, the materials may be of greater relevance. The materials may assist in determining whether the surveillance was conducted within the stipulated limits of the authorization (i.e., within particular dates and time). But the target may equally scrutinize the execution of the wiretap search through disclosure of the documentary logs of the interception and affidavits of the officers who conducted the surveillance will serve as an adequate substitute means of verification. Otherwise, the recording materials will be principally if not exclusively relevant to determining the extent of damages suffered by the target as a result of an illegal wiretap surveillance. By examining the contents of the intercepted communications, the target will be able to assess the degree to which the state encroached into his private life, which in turn, will assist in the determination of appropriate compensation.

On the other side of the equation, the state has an interest in limiting the disclosure of the actual recording tapes. The content of the tapes risks disclosing the focus of the police investigation in a particular case, as well as the general modus operandi of police electronic surveillance. As well, as my colleagues note, at para. 109, in many circumstances the disclosure of surveillance tapes (and available transcripts) will represent an enormous undertaking involving production of dozens, if not hundreds, of hours of recorded conversations. Furthermore, the disclosure of surveillance tapes requires considerable police supervision to ensure that the tapes are properly edited to guard against the disclosure of conversations of innocent third parties which do not involve the target.

I believe that the procedural framework adopted by La Forest and Sopinka JJ. adequately accounts for the particular relevance of the recording materials and sufficiently accommodates the competing interests of the individual and the state. I have no doubt that the specifics of this procedural framework for disclosure of surveillance recording materials to a non-accused target will require further elaboration by lower courts. But I would welcome and encourage Parliament's assistance in clarifying the murky procedural waters of Part VI of the Criminal Code .