R. v. Tse

R. v. Tse

Section 184.4, as enacted, is constitutionally invalid under s.8 of the Charter because it authorizes warrantless interceptions without adequate safeguards (notably lack of notice and accountability) and fails the minimal impairment and proportionality branches of Oakes; the declaration of invalidity is stayed;...

Source-derived case information.

Citation
2008 BCSC 211
Parties
Prosecution: Regina; Accused: Yat Fung Albert Tse; Accused: Viet Bac Nguyen; Accused: Nhan Trong Ly; Accused: Daniel Luis Soux; Accused: Huong Dac Doan; Accused: Myles Alexander Vandrick; Intervener: Attorney General of Canada
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
22 February 2008
Procedural Posture
Criminal Pre Trial Constitutional and Evidentiary Challenges / Voir Dire / Ruling on Constitutional Validity and Validity of Wiretap Authorizations (pre Trial)
Outcome
Court declared s.184.4 of the Criminal Code unconstitutional under s.8 of the Charter, stayed declaration for the longer of 18 months or 30 days after resolution of the charges, found R.C.M.P. implementation flaws, upheld Authorization P-12 as valid, set aside Authorization P-17 for failure of full and frank...
Legal Topics
Wiretap Authorizations, Search and Seizure, Section 184.4 Criminal Code, Charter S.8 Unreasonable Search, Charter S.1 Oakes Justification, Full and Frank Disclosure, Judicial Oversight, Duarte Principles, Authorization P 12, Authorization P 17, Publication Ban
Source Language
english
Constitutional Law Criminal Law Privacy Law Evidence Administrative Law Wiretap Authorizations Search and Seizure Section 184.4 Criminal Code +8 more

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Parties

Regina

Prosecution

Yat Fung Albert Tse

Accused

Viet Bac Nguyen

Accused

Nhan Trong Ly

Accused

Daniel Luis Soux

Accused

Huong Dac Doan

Accused

Myles Alexander Vandrick

Accused

Attorney General of Canada

Intervener

Procedural Posture

Criminal Pre Trial Constitutional and Evidentiary Challenges / Voir Dire / Ruling on Constitutional Validity and Validity of Wiretap Authorizations (pre Trial)

Legal Issues

  1. 1 Is s.184.4 of the Criminal Code constitutionally valid?
  2. 2 Is s.184.4 void for vagueness?
  3. 3 Is s.184.4 overly broad?

Ratio Decidendi

Section 184.4, as enacted, is constitutionally invalid under s.8 of the Charter because it authorizes warrantless interceptions without adequate safeguards (notably lack of notice and accountability) and fails the minimal impairment and proportionality branches of Oakes; the declaration of invalidity is stayed; implementation under s.184.4 here produced unlawful intercepts until superseded by a valid judicial authorization; Authorization P‑12 was validly issued under s.186; Authorization P‑17 is invalid for failure of full and frank disclosure and subversion of the authorization process.

Court Disposition

Court declared s.184.4 of the Criminal Code unconstitutional under s.8 of the Charter, stayed declaration for the longer of 18 months or 30 days after resolution of the charges, found R.C.M.P. implementation flaws, upheld Authorization P-12 as valid, set aside Authorization P-17 for failure of full and frank...

Orders

  • Declaration that s.184.4 of the Criminal Code is constitutionally invalid
  • Stay of declaration for the longer of either 18 months or 30 days after the subject charges are resolved in this Court; Attorney General of Canada liberty to apply to extend the stay