Abstract
The current application (or lack thereof in some cases) and review of investigative necessity in wiretap case law suggests that the Supreme Court of Canada's decision in R. v. Araujo is not being applied in spirit or in substance. Wiretaps represent a serious risk to the privacy of targets and their associates; they are indiscriminate in their acquisition of information. Recognizing the risk wiretaps pose to privacy, the Supreme Court of Canada directed in R. v. Araujo that the wiretap authorizing judge "should not view himself or herself as a mere rubber stamp"; rather he or she should closely examine the material submitted to determine if there is "practically speaking, no other reasonable alternative method of investigation". Three facts suggest that judges in some cases cannot apply and in others are not applying the spirit and substance of Araujo: (1) legislative provisions that exempt the investigation of terrorism and organized crime offences from the general rule that investigative necessity must be proved to authorize a wiretap; (2) near universal authorization of wiretap requests in publically available statistics; and (3) judicial deference to the police and drafters of the Information to Obtain a wiretap. That deference is manifested in published case law through the acceptance of broad police investigative objectives to justify decisions not to pursue investigative techniques and/or willingness to accept bare assertions of the requesting state body (which are of course not subject to cross-examination in the ex parte authorization hearing). To properly give effect to Araujo, particularly in ex parte hearings, judges must first be required to determine whether investigative necessity is demonstrated in all cases. Thus, the legislative provisions exempting certain wiretap-requesting investigations from proof of investigative necessity should be repealed. Second, judges must be given an in-depth understanding of police investigative tactics through confidential judicial education seminars and materials in order to accurately determine if there are in fact "practically speaking, no other reasonable alternative methods of investigation" in authorization and review proceedings.
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Recommended Citation
Jim Cruess, "Cost of Admission: One Rubber Stamp - Evaluating the Significance of Investigative Necessity in Wiretap Authorizations after R v Araujo" (2013) 22 Dal J Leg Stud 59.