Decision in R v Hafizi

On September 28, 2023, the Court of Appeal for Ontario released its decision in R v Hafizi, a case that examined the minimum evidentiary standard required for law enforcement to use highly invasive surveillance techniques on individuals who are not the actual target of the investigation but are merely “known persons.”

Wire taps have been acknowledged by the Supreme Court of Canada as a highly intrusive type of search. By allowing the state to record private conversations, wiretaps engage privacy rights at the highest level, and thus, run the risk of violating Section 8 of the Charter, which guarantees a “right to be secure against unreasonable search or seizure”.

It has long been established law that, in order to avoid Charter infringements, the threshold for the deployment of surveillance technologies, such as wiretaps, must correlate with the level of intrusion of privacy on the individual. Accordingly, given their highly intrusive nature, one might expect the threshold for deployment of wiretap technology to be high. Yet, when R v Mahal found itself before the Ontario Court of Appeal in 2012, the Court lowered the threshold for wire taps for “known persons”, stating that police could obtain wiretaps on individuals who are non-targets in their investigations, so long as they believe that doing so “may assist” their primary investigation.

CCLA believes that this is not only a departure from established precedent, but also an infringement of the rights guaranteed by Section 8 of the Charter. In R v Hafizi, CCLA argued as much, saying that the evidentiary standard from Mahal—an evidentiary standard at issue in the current case—again violates s. 8 of the Charter. CCLA also submitted that this standard will permit even greater privacy invasions with new technologies, such as on-device investigation tools (ODITs).

Unfortunately, the Court decided to dismiss the appeal, and endorse the Mahal standard for wiretaps.

Read CCLA’s factum here.

Read the SCC decision here.