Wakeling et al. v. Canada on behalf of the U.S.A et al., SCC, Court File No. 35072

This appeal arises from a request to extradite Mr. Wakeling to the United States for prosecution for drug offenses on the basis of wiretap evidence collected as part of a Canadian criminal investigation and disclosed to the United States. The alleged authority for the Canadian authorities’ sharing of wiretap evidence with the United States is s. 193(2)(e) of the Criminal Code and s. 8(2)(f) of the Privacy Act. The extradition judge held that these provisions did not violate either the right to life, liberty and security of the person in s. 7 of the Canadian Charter of Rights and Freedoms or the right against unreasonable search or seizure in s.8. After the judge granted an extradition order of committal and the Minister of Justice issued an order of surrender, the Court of Appeal for British Columbia dismissed the appeal of the extradition order and the application for judicial review of the surrender order in 2012.

The Canadian Supreme Court granted leave to appeal in June 2013, and on April 22, 2014, the court heard oral argument and reserved judgment. At issue before the Canadian Supreme Court is whether ss. 7 and/or 8 of the Charter are infringed on by the provision in s. 8(2)(f) of the Privacy Act for transfer of personal data to foreign authorities or the provisions in s. 193(2)(b) and (e) of the Criminal Code for disclosure of personal communications in criminal investigations and to foreign authorities. A further, potential issue is whether any infringement of s.7 or 8 meets s.1 of the Charter’s requirement of being a “reasonable limit… prescribed by law as can be demonstrably justified in a free and democratic society.”

Interveners in the case include the Canadian and British Columbia Civil Liberties Associations, the Attorneys General of Ontario and Quebec, the Information and Privacy Commissioner of Ontario, and the Privacy Commissioner of Canada.

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