COURT OF APPEAL FOR ONTARIO FACTUM OF THE INTERVENER, CANADIAN CIVIL LIBERTIES ASSOCIATION
Coherent Identifier 20.500.12592/hsc5pc

COURT OF APPEAL FOR ONTARIO FACTUM OF THE INTERVENER, CANADIAN CIVIL LIBERTIES ASSOCIATION

28 September 2023

Summary

As reflected in the Supreme Court’s jurisprudence, at the heart of Part VI lies the recognition that its investigative techniques are more intrusive than the powers of search and seizure found elsewhere in the Criminal Code. [...] 18 In each of these instances, the Court reached its conclusion through a consideration of the invasiveness of the search and the nature of the privacy interests at stake. [...] In Mahal, this Court held that the standard to engage in an intercept of the private communications of a “known person” (rather than the principal target) “is a modest one” and investigators are required only to “have reasonable and probable grounds to believe that the interception of that person's private communications may assist the investigation of an offence”.19 21. [...] Brewster, Code J., relying on Mahal, explained that the test for intercepting the communications of a “known person” is a “low one” and that this standard allows the police to wiretap someone who “may be an entirely innocent third party who is not implicated in the offence under investigation, provided that seizure of the third party's communications may 19 Mahal, at para. [...] In Brewster, the court ultimately held that the authorization to intercept the communications of a third party as a “known person” based on the tip of an untested confidential informant — which it admitted would not satisfy the Hunter standard — and information about his association with gang members or associates met the low Mahal standard.

Pages
17
Published in
Canada

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