|This page was last substantively updated or reviewed January 2016. (Rev. # 83881)|
Section 189(5) establishes the statutory rules and preconditions for the admissibility of wiretap evidence. 
- Breach of Privacy
The Charter does not apply to recordings of conversations between to private citizens unless one of them is acting as an agent of the state. The only remedy for aggrieved parties is a civil one. The exceptions are where the person recording the communication is an "agent of the state" or a "part of government."
- Non-Official Languages
A transcript of the wiretap that has been translated into an official language should be sufficient to satsify s. 189 requirements.
- R v Tam, 2000 CanLII 5699 (ON CA),  OJ No 2185 (CA), per Goudge JA, 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.")
R v Nguyen, 2001 ABPC 52 (CanLII), 294 AR 201, per Stevenson ACJ, at para 29
Nguyen, ibid., at para 29
R v Iyer, 2015 ABQB 577 (CanLII), per Moen J, at para 74
R v Dell, 2005 ABCA 246 (CanLII), 199 CCC (3d) 110, per Fruman JA, at paras 7 and 8
Iyer, supra, at paras 72 to 80
R v Rowbotham, 1988 CanLII 147 (ON CA), 63 CR (3d) 113, per curiam
The purpose of s. 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."
What amounts to a "reasonable notice" will depend on the circumstances of the case in light of the purpose of the provision.
Reasonable notice can include notes occurring during pretrial motions "several months" before the empaneling of a jury.
The notice requirements under s. 189(5) are mandatory. A failure to comply with the conditions prevents a judge from receiving it as evidence.
What constitutes "reasonable notice" is "fact-driven" and depends on the circumstances.
- No Notice for Preliminary Inquiry
Notice is not required for admitting wiretap evidence at a preliminary inquiry.
- No Notice re Content
There is no obligation to provide notice of what exactly was intercepted.
The notice provided under s. 189(5) be adequate, the defence of remedy under section 190 to see particulars. 
- Failure to Notify
Where there has been no proper notice pursuant to s. 196, the intercept does not become unlawful.
R v Youkhana, 2006 SKQB 351 (CanLII), 284 Sask R 5, per Laing J, at para 17
R v Pleich, 1980 CanLII 2852 (ON CA), 55 CCC (2d) 13, per Morden JA at p 21 (CCC)
- Pleich, ibid.
- R v Proudfoot, 1995 ABCA 409 (CanLII), 102 CCC (3d) 260, per curiam
R v Paquet, 1999 CanLII 2259 (NB CA), 140 CCC (3d) 283, per curiam, at para 24
R v Welsh, 2007 CanLII 23170 (ON SC), per O’Connor J, at para 34
R v Shalala, 2000 CanLII 20260 (NB CA), 45 WCB (2d) 203, per curiam, at para 123
- LeBlanc and Steeves v R, 2009 NBCA 84 (CanLII), 250 CCC (3d) 29, per Richard JA
- R v Zaduk, 1979 CanLII 1960 (ON CA), (1979) 46 CCC 327, per Arnup JA
- R v Tam, 2000 CanLII 5699 (ON CA), per Goudge JA, at para 21
- R v Welsh (No 6), 1977 CanLII 1215 (ON CA), 1977 32 CCC (2d) 363, per Zuber JA
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. The evidence is high quality since the parties are unaware that they are being listened to. They will have "enormous weight."
R v Eiswerth, 1998 CanLII 13844 (SK QB),  S.J. No 798 (Sask. Q.B.), per Hrabinsky J, at paras 12 to 15
R v Violette, 2008 BCSC 422 (CanLII),  BCJ No 2781 (S.C.), per Romilly J, at para 10
R v Wu, 2010 ABCA 337 (CanLII),  AJ No 1327 (CA), per curiam
R v Shea, 2011 NSCA 107 (CanLII),  NSJ No 653 (CA), per Farrar JA, at paras 54 to 67, 74, 80 to 83
R v Shields, 2014 NSPC 21 (CanLII), per Derrick J, at para 98
see Traditional Exceptions to Hearsay
R v Lepage and Oliynyk, 2008 BCCA 132 (CanLII),  BCJ No 524, per Hall JA, at para 37
Shields, supra, at para 101
R v Niemi, 2008 CanLII 82240 (ON SC),  OJ No 4619 (SCJ), per Eberhard J, at para 29
see also Violette, supra, at para 101
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.
Transcripts of wiretaps may be put to the jury. The transcript however are only to be sued as aids and not evidence themselves. The court should be satisfied that the transcripts are "substantially accurate" before allowing them to be put to the jury.
- Labels on Transcripts
It may be acceptable to put a wiretap transcript to a jury along with labels identifying the alleged identity of the speaker in the wiretap, even where identity is in dispute, as long as the jury is provided with limiting instructions that indicate the labels are not evidence and the jury must decide for themselves.