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Reviews Bibliographie Invasion Reviews Bibliographie Invasion of.'Privacy: Police and Electronic Surveillance in Canada . By 'STANLEY A. COHEN. Toronto: The Carswell,Co . Ltd. , 1983 . Pp. xxii, 282 . ($39 .50) . At firstglance, one may wonder.why Carswell would publish,another book on wiretapping when David Watt's Law of Electronic Surveillance in Canada has been,supplemented in 1981 However, Professor Cohen, while acknowledging his debt to Mr. Watt and others,- attempts to.do more than provide a mere summary ofthe present state of law. He seeks to.analyze the competing interests and goals of a criminal justice system concerned with privacy and to propose a means by which this system ran be improved. The . major emphasis is on wiretapping and electronic eavesdropping, but other areas of surveillance are scrutinized well : . as The Protection of Privacy Art' attempted to create an, instrument capable of serving as a legislative bulwark to preserve the right to privacy while enabling law enforcement agencies under strict control to conduct surveillance. Professor Cohen regards it as a mere "sub-set of amore general power", namely the power to conduct surveillance .-Historically, police were restricted by their unauginented senses, but with the develop- ment, of technology, legislation was necessary. Legislation must reflect what Professor Cohen considers to be,the basic purpose-ofthe criminal law, namely, criminal law, should be carried out withno more intereference with . the freedom of individuals than is necessary.. In seeking .to achieve .this . goal ; due regard is ,afforded to the findings of the. McDonald Inquiry into the Royal Canadian Mounted Police -and the Krever inquiry into the confidentiality of health records . The author considers the jurisprudence relating to the Protection of Privacy Act and queries* whether it achievds its goals, whether it is fashioned in a manner that is consistent with the- rule of law,whether the participants in the system, judges, lawyers'and police are able to function well, and finally, whether the public is protected and if the legislation. can be strengthened. .All areas of the,present legislation are reviewed and subjected to. an extensive critique with suggestions for reform . 1 S.C. 1973-74, c. 50. 892 LA REVUE DU BARREAU CANADIEN [Vol. 61 Professor Cohen suggests that the list of targetable offences for electronic eavesdropping is too extensive and requires significant paring . Only offences which reveal a significant danger to life, such as murder, kidnapping, extortion, arson, hijacking, armed robbery, and trafficking in poisonous, dangerous or adulterous substances, should be considered, and even in those instances, only where a high degree of certainty that the crime has been, is being, or will be committed, is manifest . The application process is found to be defective in that the judge has no guidance as to the burden to be discharged by the applicant. To remedy this situation, it is suggested that the onus be on the balance ofprobabilities without reference to the applicant's good faith, the court be empowered to order the furnishing of information, reasons are to be given concerning the disposition of an application, and the court is to be restricted to facts as set out in the documentary material. In addition, in order to ensure all facts and law are properly presented on the application, an element of the adversary system would be introduced in the form of an Amicits Curiae or Andcus Publicae. Secrecy would be preserved if counsel were affiliated with an ombudsman or privacy commissioner. Authorization orders are suspect as well because of the confidentiality surrounding them. Professor Cohen insists the tight clamps must be loosened so that review of the order may be sought in a motion to suppress on the basis that the communication was not lawfully intercepted, the order was insufficient or defective upon its face, or that the interception was not made in conformity with the authorization. It is also suggested that the notification under Criminal Code section 178 .3 be meaningful and not merely cosmetic so that the citizen will have sufficient details upon which to seek redress for unlawful, unwarranted invasions of privacy . In addition, before intercepted private communica- tions would be admissible, the accused would be given discovery of all the tapes, either by transcripts or an opportunity to transcribe and record all conversations . Finally, there is a proposal for a National Wiretap Commission to review and study the operation ofthe legislation . Such a commission exists in the United States.- Invasion of Privacy is provocative and intellectually stimulating. These suggestions for reform illuminate a number of deficiencies in the Protection of Privacy Act, or as it now is known, Part IV .I of the Criminal Code . However, one wonders whether some of these proposals are steps forward or steps backward. Giving trial judges powers of review and requiring reasons to be given for the granting of an order, will return the Z National Commission for the Review ofFederal and State Laws Relating to Wiretap- ping and Electronic Surveillance . 19831 Bibliographie 893 criminal justice system to the pre-Parsons3 voir dire, where all things were in issue and the hearing on admissibility was often longer than the trial itself. Indeed, the reasons given for review, namely, to challenge legality ofthe order, a defect is apparent on the fact of the order, or the interception was not in accordance with the order, 4 are already factors which would render the evidence inadmissible. Additionally, one wonders why one judge should sit in review of his fellowjudge, or for example, a provincial court trial judge reviewing the order of a superior court. Surely, with all the present safeguards in the application. for an authorization and Professor Cohen's Proposed safeguards, there is no necessity to "re-litigate" the decision to grant an order. The combination of the practical and the academic makes this book an important supplement to the more conventional texts on electronic surveill- ance . For those lost in the maze created by a decade of jurisprudence on Section 178 of the Criminal Code, it is a healthy and welcome return to the fundamentals. It is the type ofreview which Parliament should do, but will be unable to, due to the politically sensitive. nature of privacy rights. AUDREY S . BRENT* Droitsfondamentaux et libertés publiques. Par DENis LEMIEUX . Montréal: C.E .J . 1983 . Pp. feuillets mobiles . ($32.50) Après plusieurs mois d'attente, les éditions C.E .J . viennent de publier leur recueil de lois concernant les droits fondamentaux et les libertés publiques . Ce répertoire est publié sous couverture à anneaux permettant une mise à jour rapide. Il comprend quatorze lois dont, bien entendu, la Charte canadienne des droits et libertés' et la Charte des droits et libertés de la personne du Québec . En outre, d'autres lois connexes, telles les lois 3 (1977), 40 C.R.N.S . 202, 37 C.C.C. (2d) 497, aff'd, [198011 . S .C.R. 785, 14 C.R. (3d) 191 (sub nom. Charette v. R .), at p. 208 (C. R .N. S.): "Once the statutory conditions have been met, what the Crown must show is that the intercepted private communications are those ofthe person against whom it is tendered and accurately reproduce his words. The Crown's proof as to the integrity of the tape, its accuracy, its continuity, and voice identification, and that there have been no tampering or alterations in any way all relate to the proof that the evidence tendered is an accurate reproduction of what it is alleged the person against whom it is tendered said . The weight to be given to that evidence is for the jury . , 4 InR. v. Niles (1978), 40 C.C.C. (2d) 512 (Ont. C. A.), it was held that in orderfor an interception to be lawful, the Crown had to prove it was in accordance with the terms of the authorization order; In R. v . Parsons, ibid ., it was held that it is for the trial judge to rule upon validity of an authorization . * Audrey S. Brent, of the Saskatchewan Bar, Regina . 1 Canada Act, 1982, c . 11, Annexe B (R.-U.) . 2 L.R .Q. 1977, c. C-12 . 894 THE CANADIAN BAR REVIEW [Vol . 61 d'interprétation fédérales et provinciales, la Charte de la langue française' et la Loi sur les langues officielles font partie de ce volume . Ces lois sont réunies en cinq chapitres intitulés: Charte des droits de la personne, lois à l'information, lois linguistiques, lois d'interprétation et lois spéciales. Un avant-propos du professeur Denis Lemieux explique les raisons qui justi- fient le regroupement de ces lois . Il ne fait nul doute que ce recueil constituera un instrument précieux dont l'usage pourra être judicieusement combiné avec les articles d'émi- nents juristes québécois et canadiens publiés récemment en un volume par les professeurs Beaudoin et Tarnopolsky.s Nous pouvons toutefois regret- ter qu'il n'inclut pas des textes importants pour l'établissement des libertés en droit constitutionnel britannique qui sont difficiles à retracer comme la Magna Carta, le Bill of Rights et l'Act of Seulement. Par ailleurs, pour le praticien, la version anglaise de ces lois aurait dû être reproduite pour fins de comparaison et d'interprétation . Il est vrai que la maison C.E.J. se distingue par l'édition de textes compactes et facile ment accessibles, tous ses autres volumes ne sont aussi publiés qu'en langue française . Un tel document deviendra un spicilège de première nécessité pour tout juriste qui se préoccupe de la sauvegarde des droits et libertés de la personne. ALAIN CARDINAL"" .u g- d= MacGillivray andParkington on Insurance LawRelating to All Risks other than Maritie. Seventh Edition . By MICHAEL PARKINGTON, ANTHONY O'DOWD, NICHOLAS LEGH-JONES and ANDREW LONGMORE.
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