Admitting Wiretap Evidence

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General Principles

Section 189(5) establishes the statutory rules and preconditions for the admissibility of wiretap evidence. [1]

Place
When dealing with land-line phones, the "place" refers to the two ends of the conversation.[2] For cell phones, the place would describe the location of the cell towers.[3]

Non-Official Languages
A transcript of the wiretap that has been translated into an official language should be sufficient to satsify s. 189 requirements.[4]

  1. R v Tam, 2000 CanLII 5699 (ON CA), [2000] O.J. No. 2185 (C.A.) (QL). Goudge J.A. at para 16 ("This section is not a penal provision of the Criminal Code. Rather, it establishes a statutory rule of evidence that defines a pre‑condition for admissibility. Thus, it must receive an interpretation which best assures the attainment of its objectives.")
  2. R v Nguyen, 2001 ABPC 52 (CanLII), at para 29
  3. Nguyen, ibid. at para 29
  4. R v Tam, 2000 CanLII 5699 (ON CA)
    R v Rowbotham, 1988 CanLII 147 (ON CA)

Notice

The purpose of section 189 (5) (A) is to provide the defense "with timely disclosure of the evidence that may be tendered against him to enable him to prepare his defence."[1]

What amounts to reasonable notice will depend on the circumstances of the case in light of the purpose of the provision.[2]

Reasonable notice can include notes occurring during pretrial motions "several months" before the empaneling of a jury.[3]

189. (1) to (4) [Repealed, 1993, c. 40, s. 10]
Notice of intention to produce evidence
(5) The contents of a private communication that is obtained from an interception of the private communication pursuant to any provision of, or pursuant to an authorization given under, this Part shall not be received in evidence unless the party intending to adduce it has given to the accused reasonable notice of the intention together with

(a) a transcript of the private communication, where it will be adduced in the form of a recording, or a statement setting out full particulars of the private communication, where evidence of the private communication will be given viva voce; and
(b) a statement respecting the time, place and date of the private communication and the parties thereto, if known.


...
R.S., 1985, c. C-46, s. 189; 1993, c. 40, s. 10.


CCC

The notice requirements under s. 189(5) are mandatory. A failure to comply with the conditions prevents a judge from receiving it as evidence.[4]

What constitutes "reasonable notice" is "fact-driven" and depends on the circumstances.[5]

Notice is not required for admitting wiretap evidence at a preliminary inquiry.[6]

The notice provided under section 189 (5) be adequate, the defense of remedy under section 190 to see particulars. [7]

Further particulars
190 Where an accused has been given notice pursuant to subsection 189(5), any judge of the court in which the trial of the accused is being or is to be held may at any time order that further particulars be given of the private communication that is intended to be adduced in evidence.
1973-74, c. 50, s. 2.


  1. R v Youkhana, 2006 SKQB 351 (CanLII) at para 17
    R v Pleich (1980), 55 CCC (2d) 13 at 21 (Ont. C.A.)(*no link)
  2. Pleich
  3. R v Proudfoot (1995), 1995 ABCA 409 (CanLII), 102 CCC (3d) 260 (Alta. C.A.)
  4. R v Paquet, 1999 CanLII 2259 (NB CA), at para 24
    R v Welsh, 2007 CanLII 23170 (ON SC), at para 34
  5. R v Shalala, 2000 CanLII 20260 (NBCA) at para 123
  6. LeBlanc and Steeves v R., 2009 NBCA 84 (CanLII)
  7. Tam at para 21

Hearsay

Wiretaps, even though the contain hearsay, are frequently admitted into evidence.[1] Typically, they are accepted under the "admissions against interest" exception.[2]

They also will satisfy the principled approach requirements of necessity and reliability as wiretaps contain spontaneous declarations that are contemporaneously recorded are likely the best evidence available for the facts they establish. They provide "cogent and reliable" evidence of the parties to the conversation and their activities.[3] The evidence is high quality since the parties are unaware that they are being listened to.[4] They will have "enormous weight".[5]

  1. R v Eiswerth, 1998 CanLII 13844 (SK QB), [1998] S.J. No. 798 (Sask. Q.B.), at para 12-15
    R v Violette, [2008] BCJ No. 2781 (S.C.), at para 10
    R v Wu, 2010 ABCA 337 (CanLII), [2010] A.J. No. 1327 (C.A.)
    R v Shea, 2011 NSCA 107 (CanLII), [2011] NSJ No. 653 (C.A.), at paras 54-67, 74, 80-83
    R v Shields, 2014 NSPC 21 (CanLII) at para 98
  2. see Traditional Exceptions to Hearsay
  3. R v Oliynyk, 2008 BCCA 132 (CanLII), [2008] BCJ No 524 at para 37
  4. Shields at para 101
  5. R v Niemi, 2008 CanLII 82240 (ON SC), [2008] OJ No. 4619 (SCJ) at para 29
    see also Violette at para 101

Privileged Evidence

189
...
Privileged evidence
(6) Any information obtained by an interception that, but for the interception, would have been privileged remains privileged and inadmissible as evidence without the consent of the person enjoying the privilege.
R.S., 1985, c. C-46, s. 189; 1993, c. 40, s. 10.


CCC

A wife who previously consented to a wiretap of conversations between her and her husband but then refuses to testify at trial may rely on spousal privilege s. 4(3) of the Evidence Act.[1]

See Also