Her Majesty the Queen v. Yat Fung Albert Tse, et al.

(British Columbia) (Criminal) (By Leave)


Constitutional law.


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Charter of Rights - Search and seizure - Criminal law - Warrantless interception of private communications - Is it contrary to s. 8 of the Charter for peace officers to intercept private communications in urgent situations without judicial pre-authorization - If so, is the infringement saved by s. 1 of the Charter - Does the right to be secure against unreasonable search or seizure impose a constitutional duty on police to report their activities to targets, superior officers or other officials, and to Parliament - Does s. 8 of the Charter mandate which classes of peace officers should be able to employ a warrantless interception in exceptional circumstances - What leeway does Parliament have under the Charter in deciding which categories of unlawful acts are serious enough to merit the application of specific methods of investigation, such as wiretaps - Section 184.4 of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”) - R. v. Duarte, [1990] 1 S.C.R. 30.

Section 184.4 of the Code provides that peace officers can intercept private communications without prior judicial authorization, where the peace officer believes on reasonable grounds that: (i) an authorization cannot be obtained with reasonable diligence, given the urgency of the situation; (ii) an interception is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property; and (iii) either the originator or the intended recipient of the private communication is the person who would perform the harmful act or is the intended victim. In the present case, the police relied upon s. 184.4 to intercept private communications in the context of the alleged kidnapping of three individuals. The Applicant later sought to adduce evidence gathered from those interceptions at the trial of the Respondents for their alleged roles in the kidnapping, confinement, and extortion charges. The Respondents challenged the constitutional validity of s. 184.4 of the Code under s. 52 of the Constitution Act, 1982, and sections 7, 8 and 11(d) of the Charter. They also challenged the manner of the police’s implementation of s. 184.4, the admissibility of evidence obtained under it; and the admissibility of evidence obtained pursuant to subsequent judicial authorizations issued pursuant to s. 186 of the Code.