Last November, MP John Duncan (CON – Vancouver Island North) was accused by the NDP of illegal wire-tapping, contrary to the Criminal Code of Canada, s. 184(1). New Democrats alleged that Duncan, whose parliamentary email address is similar to that of Linda Duncan (NDP – Edmonton-Strathcona), was inadvertently sent an email containing passwords for an NDP caucus conference call. The Conservative Party then released an audio recording of the call to the media. John Duncan has not made any public statements about the incident and no charges were laid.

Following a complaint by the NDP, the RCMP is now under investigation by the Commission for Public Complaints against the Royal Canadian Mounted Police. The New Democrats allege that the RCMP failed to perform an adequate investigation into the incident, and claim that the police did not even interview John Duncan to assess the situation.

For what it’s worth, the relevant portions of the Criminal Code read as follows:

Interception

184. (1) Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

The word “intercept” is defined in s. 183:

“intercept” includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof;

Some commentators have argued that because the email was sent to a Conservative MP, there should be no legal consequence attached to using the information in that email to record the conference call. However, the NDP argues that the conference call was still “a private communication” within the meaning of s. 184:

“private communication” means any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it; [emphasis added]

The word “intended” in the definition of a private communication is crucial. It suggests that the originator has reasonable expectation against any person that the originator did not intend to make a party to the private communication, notwithstanding that the originator may have inadvertently allowed such a person to access to the communication. It would seem pretty clear from the circumstances that the NDP did not intend for an MP from a rival political party to participate in their caucus strategy call (particularly in light of the political situation at the time).

Legally, then, the analysis for the allegations raised by the NDP against John Duncan would be along the following lines (I have used “alleged interceptor” in place of “accused” since Mr. Duncan has not been accused by the Crown of any crime):

1. Was the NDP‘s conference call “a private communication” within the meaning of s. 184?
   1. Was it oral communication or telecommunication?
   2. Was it made by an originator who is in Canada or intended by the originator to be received by a person who is in Canada?
   3. Was it made under circumstances in which it was reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it?
      1. Is the alleged interceptor a person intended by the originator to receive the communication?
      2. Do the circumstances, including the inadvertent email sent to the alleged interceptor, give rise to a reasonable expectation that the communication would not be intercepted by the alleged interceptor?
2. Was the communication willfully intercepted by the alleged interceptor?
   1. Did the alleged interceptor listen to, record or acquire the communication or the substance, meaning or purport thereof?
   2. If so, did the alleged interceptor do so wilfully?

An interesting legal issue that follows from the above is content of the mens rea of the offence. The accused must “willfully” intercept a private communication in order to be convicted. The definition of “a private communication” includes a component of reasonableness (specifically, the reasonableness of the originator’s expectation that the communication will not be intercepted). So, does the mens rea consist of wilfully doing something that is objectively unreasonable? Or must the accused know that her interception is unreasonable in order to be convicted? I would argue for the former, given that the accused’s subjective beliefs about the reasonableness of intercepting another’s communication could vary wildly what is objectively reasonable (for example, someone who suffers from paranoia might consider it reasonable to tape her neighbour’s phone calls out of an unfounded fear for her own safety, yet this usually is not objectively reasonable).

Notwithstanding the legal complexities that would undoubtedly arise if charges were laid in connection with the incident I’ve described, there is, in my view, at least enough substance to the NDP‘s allegations that they should be taken seriously and subjected to a proper investigation. Given that this incident played a major role the constitutional crisis of 2008, it would argue that this is a matter of national importance and that it should be treated accordingly by the RCMP.