Admitting Wiretap Evidence: Difference between revisions
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Section 189(5) establishes the statutory rules and preconditions for the admissibility of wiretap evidence. | Section 189(5) establishes the statutory rules and preconditions for the admissibility of wiretap evidence. | ||
<ref> | <ref> | ||
R v Tam, [http://canlii.ca/t/1fb4m 2000 CanLII 5699] (ON CA), [2000] O.J. No. 2185 (C.A.) (QL) | R v Tam, [http://canlii.ca/t/1fb4m 2000 CanLII 5699] (ON CA), [2000] O.J. No. 2185 (C.A.) (QL){{perONCA|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.") | ||
</ref> | </ref> | ||
'''Place'''<br> | '''Place'''<br> | ||
When dealing with land-line phones, the "place" refers to the two ends of the conversation.<ref> | When dealing with land-line phones, the "place" refers to the two ends of the conversation.<ref> | ||
R v Nguyen, [http://canlii.ca/t/1hjsb 2001 ABPC 52] (CanLII), at para 29<Br> | R v Nguyen, [http://canlii.ca/t/1hjsb 2001 ABPC 52] (CanLII){{perABPC|Stevenson ACJ}}, at para 29<Br> | ||
</ref> For cell phones, the place would describe the location of the cell towers.<Ref> | </ref> For cell phones, the place would describe the location of the cell towers.<Ref> | ||
Nguyen{{ibid}} at para 29<br> | Nguyen{{ibid}} at para 29<br> | ||
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'''Breach of Privacy'''<br> | '''Breach of Privacy'''<br> | ||
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.<Ref> | 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.<Ref> | ||
R v Iyer, [http://canlii.ca/t/gx1sm 2015 ABQB 577] (CanLII), at para 74<br> | R v Iyer, [http://canlii.ca/t/gx1sm 2015 ABQB 577] (CanLII){{perABQB|Moen J}}, at para 74<br> | ||
</ref> | </ref> | ||
The exceptions are where the person recording the communication is an "agent of the state" or a "part of government".<ref> | The exceptions are where the person recording the communication is an "agent of the state" or a "part of government".<ref> | ||
R v Dell, [http://canlii.ca/t/1l5rs 2005 ABCA 246] (CanLII) at paras 7 and 8<br> | R v Dell, [http://canlii.ca/t/1l5rs 2005 ABCA 246] (CanLII){{perABCA|Fruman JA}} at paras 7 and 8<br> | ||
Iyer{{supra}} at para 72 to 80<br> | Iyer{{supra}} at para 72 to 80<br> | ||
</ref> | </ref> | ||
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A transcript of the wiretap that has been translated into an official language should be sufficient to satsify s. 189 requirements.<ref> | A transcript of the wiretap that has been translated into an official language should be sufficient to satsify s. 189 requirements.<ref> | ||
Tam{{supra}}<br> | Tam{{supra}}<br> | ||
R v Rowbotham, [http://canlii.ca/t/1npn6 1988 CanLII 147] (ON CA)<br> | R v Rowbotham, [http://canlii.ca/t/1npn6 1988 CanLII 147] (ON CA){{TheCourt}}<br> | ||
</ref> | </ref> | ||
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==Notice== | ==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."<ref> | 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."<ref> | ||
R v Youkhana, [http://canlii.ca/t/20h64 2006 SKQB 351] (CanLII) at para 17<br> | R v Youkhana, [http://canlii.ca/t/20h64 2006 SKQB 351] (CanLII){{perSKQB|Laing J}} at para 17<br> | ||
R v Pleich (1980), 55 CCC (2d) 13 at 21 (Ont. C.A.), [http://canlii.ca/t/g9ddf 1980 CanLII 2852] (ON CA) | R v Pleich (1980), 55 CCC (2d) 13 at 21 (Ont. C.A.), [http://canlii.ca/t/g9ddf 1980 CanLII 2852] (ON CA){{perONCA|Morden JA}} | ||
</ref> | </ref> | ||
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Reasonable notice can include notes occurring during pretrial motions "several months" before the empaneling of a jury.<ref> | Reasonable notice can include notes occurring during pretrial motions "several months" before the empaneling of a jury.<ref> | ||
R v Proudfoot (1995), [http://canlii.ca/t/2dcc2 1995 ABCA 409] (CanLII), 102 CCC (3d) 260 (Alta. C.A.) | R v Proudfoot (1995), [http://canlii.ca/t/2dcc2 1995 ABCA 409] (CanLII), 102 CCC (3d) 260 (Alta. C.A.){{TheCourt}} | ||
</ref> | </ref> | ||
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The notice requirements under s. 189(5) are mandatory. A failure to comply with the conditions prevents a judge from receiving it as evidence.<ref> | The notice requirements under s. 189(5) are mandatory. A failure to comply with the conditions prevents a judge from receiving it as evidence.<ref> | ||
R v Paquet, [http://canlii.ca/t/6mtc 1999 CanLII 2259] (NB CA), at para 24<br> | R v Paquet, [http://canlii.ca/t/6mtc 1999 CanLII 2259] (NB CA){{TheCourt}}, at para 24<br> | ||
R v Welsh, [http://canlii.ca/t/1rv9x 2007 CanLII 23170] (ON SC), at para 34<br> | R v Welsh, [http://canlii.ca/t/1rv9x 2007 CanLII 23170] (ON SC){{perONSC| O’Connor J}}, at para 34<br> | ||
</ref> | </ref> | ||
What constitutes "reasonable notice" is "fact-driven" and depends on the circumstances.<ref> | What constitutes "reasonable notice" is "fact-driven" and depends on the circumstances.<ref> | ||
R v Shalala, [http://canlii.ca/t/1lrhr 2000 CanLII 20260] (NBCA) at para 123<br> | R v Shalala, [http://canlii.ca/t/1lrhr 2000 CanLII 20260] (NBCA){{TheCourt}} at para 123<br> | ||
</ref> | </ref> | ||
Notice is not required for admitting wiretap evidence at a preliminary inquiry.<ref> | Notice is not required for admitting wiretap evidence at a preliminary inquiry.<ref> | ||
LeBlanc and Steeves v R., [http://canlii.ca/t/273wl 2009 NBCA 84] (CanLII) | LeBlanc and Steeves v R., [http://canlii.ca/t/273wl 2009 NBCA 84] (CanLII){{perNBCA|Richard JA}} | ||
</ref> | </ref> | ||
The notice provided under section 189 (5) be adequate, the defense of remedy under section 190 to see particulars. <ref> | The notice provided under section 189 (5) be adequate, the defense of remedy under section 190 to see particulars. <ref> | ||
R v Tam, [http://canlii.ca/t/1fb4m 2000 CanLII 5699] (ON CA) at para 21</ref> | R v Tam, [http://canlii.ca/t/1fb4m 2000 CanLII 5699] (ON CA){{perONCA|Goudge JA}} at para 21</ref> | ||
{{quotation| | {{quotation| | ||
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==Hearsay== | ==Hearsay== | ||
Wiretaps, even though the contain hearsay, are frequently admitted into evidence.<ref> | Wiretaps, even though the contain hearsay, are frequently admitted into evidence.<ref> | ||
R v Eiswerth, [http://canlii.ca/t/1ntz0 1998 CanLII 13844] (SK QB), [1998] S.J. No. 798 (Sask. Q.B.), at para 12-15<br> | R v Eiswerth, [http://canlii.ca/t/1ntz0 1998 CanLII 13844] (SK QB), [1998] S.J. No. 798 (Sask. Q.B.){{perSKQB|Hrabinsky J}}, at para 12-15<br> | ||
R v Violette, [http://canlii.ca/t/25xs9 2008 BCSC 422] (CanLII), [2008] BCJ No. 2781 (S.C.) | R v Violette, [http://canlii.ca/t/25xs9 2008 BCSC 422] (CanLII), [2008] BCJ No. 2781 (S.C.){{perBCSC|Romilly J}}, at para 10<br> | ||
R v Wu, [http://canlii.ca/t/2dfbc 2010 ABCA 337] (CanLII), [2010] A.J. No. 1327 (C.A.)<br> | R v Wu, [http://canlii.ca/t/2dfbc 2010 ABCA 337] (CanLII), [2010] A.J. No. 1327 (C.A.){{TheCourt}}<br> | ||
R v Shea, [http://canlii.ca/t/fp45n 2011 NSCA 107] (CanLII), [2011] NSJ No. 653 (C.A.), at paras 54-67, 74, 80-83<br> | R v Shea, [http://canlii.ca/t/fp45n 2011 NSCA 107] (CanLII), [2011] NSJ No. 653 (C.A.){{perNSCA|Farrar JA}}, at paras 54-67, 74, 80-83<br> | ||
R v Shields, [http://canlii.ca/t/g71x4 2014 NSPC 21] (CanLII) at para 98<br> | R v Shields, [http://canlii.ca/t/g71x4 2014 NSPC 21] (CanLII){{perNSPC|Derrick J}} at para 98<br> | ||
</ref> | </ref> | ||
Typically, they are accepted under the "admissions against interest" exception.<Ref> | Typically, they are accepted under the "admissions against interest" exception.<Ref> | ||
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They also will satisfy the [[Principled Exception to Hearsay|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.<ref> | They also will satisfy the [[Principled Exception to Hearsay|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.<ref> | ||
R v Oliynyk, [http://canlii.ca/t/1w8mr 2008 BCCA 132] (CanLII), [2008] BCJ No 524 at para 37<br> | R v Lepage and Oliynyk, [http://canlii.ca/t/1w8mr 2008 BCCA 132] (CanLII), [2008] BCJ No 524{{perBCCA|Hall JA}} at para 37<br> | ||
</ref> | </ref> | ||
The evidence is high quality since the parties are unaware that they are being listened to.<ref> | The evidence is high quality since the parties are unaware that they are being listened to.<ref> | ||
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</ref> | </ref> | ||
They will have "enormous weight".<ref> | They will have "enormous weight".<ref> | ||
R v Niemi, [http://canlii.ca/t/25qvh 2008 CanLII 82240] (ON SC), [2008] OJ No. 4619 (SCJ) at para 29<br> | R v Niemi, [http://canlii.ca/t/25qvh 2008 CanLII 82240] (ON SC), [2008] OJ No. 4619 (SCJ){{perONSC|Eberhard J}} at para 29<br> | ||
see also Violette at para 101<br> | see also Violette{{supra}} at para 101<br> | ||
</ref> | </ref> | ||
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===Wiretap Transcripts=== | ===Wiretap Transcripts=== | ||
Transcripts of wiretaps may be put to the jury. The transcript however are only to be sued as aids and not evidence themselves.<ref> | Transcripts of wiretaps may be put to the jury. The transcript however are only to be sued as aids and not evidence themselves.<ref> | ||
R v Aldaba, [http://canlii.ca/t/g913s 2014 ABQB 228] (CanLII) at para 2<br> | R v Aldaba, [http://canlii.ca/t/g913s 2014 ABQB 228] (CanLII){{perABQB|Burrows J}} at para 2<br> | ||
R v Iyer, [http://canlii.ca/t/gx1sm 2015 ABQB 577] (CanLII), at para 82<Br> | R v Iyer, [http://canlii.ca/t/gx1sm 2015 ABQB 577] (CanLII){{perABQB|Moen J}}, at para 82<Br> | ||
</ref> | </ref> | ||
The court should be satisfied that the transcripts are "substantially accurate" before allowing them to be put to the jury.<Ref> | The court should be satisfied that the transcripts are "substantially accurate" before allowing them to be put to the jury.<Ref> | ||
Revision as of 22:38, 4 November 2018
- < Search and Seizure
- < Warrant Searches
- < Wiretaps
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]
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.[4]
The exceptions are where the person recording the communication is an "agent of the state" or a "part of government".[5]
Non-Official Languages
A transcript of the wiretap that has been translated into an official language should be sufficient to satsify s. 189 requirements.[6]
- ↑ R v Tam, 2000 CanLII 5699 (ON CA), [2000] O.J. No. 2185 (C.A.) (QL), 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), 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), per Fruman JA at paras 7 and 8
Iyer, supra at para 72 to 80
- ↑
Tam, supra
R v Rowbotham, 1988 CanLII 147 (ON CA), per curiam
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.
– CCC
- ↑
R v Youkhana, 2006 SKQB 351 (CanLII), per Laing J at para 17
R v Pleich (1980), 55 CCC (2d) 13 at 21 (Ont. C.A.), 1980 CanLII 2852 (ON CA), per Morden JA - ↑ Pleich, ibid.
- ↑ R v Proudfoot (1995), 1995 ABCA 409 (CanLII), 102 CCC (3d) 260 (Alta. C.A.), per curiam
- ↑
R v Paquet, 1999 CanLII 2259 (NB CA), 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 (NBCA), per curiam at para 123
- ↑ LeBlanc and Steeves v R., 2009 NBCA 84 (CanLII), per Richard JA
- ↑ R v Tam, 2000 CanLII 5699 (ON CA), per Goudge JA 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]
- ↑
R v Eiswerth, 1998 CanLII 13844 (SK QB), [1998] S.J. No. 798 (Sask. Q.B.), per Hrabinsky J, at para 12-15
R v Violette, 2008 BCSC 422 (CanLII), [2008] BCJ No. 2781 (S.C.), per Romilly J, at para 10
R v Wu, 2010 ABCA 337 (CanLII), [2010] A.J. No. 1327 (C.A.), per curiam
R v Shea, 2011 NSCA 107 (CanLII), [2011] NSJ No. 653 (C.A.), per Farrar JA, at paras 54-67, 74, 80-83
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), [2008] BCJ No 524, per Hall JA at para 37
- ↑
Shields, supra at para 101
- ↑
R v Niemi, 2008 CanLII 82240 (ON SC), [2008] OJ No. 4619 (SCJ), per Eberhard J at para 29
see also Violette, supra 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 Spousal Privilege
Procedure
Wiretap Transcripts
Transcripts of wiretaps may be put to the jury. The transcript however are only to be sued as aids and not evidence themselves.[1] The court should be satisfied that the transcripts are "substantially accurate" before allowing them to be put to the jury.[2]
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.[3]
- ↑
R v Aldaba, 2014 ABQB 228 (CanLII), per Burrows J at para 2
R v Iyer, 2015 ABQB 577 (CanLII), per Moen J, at para 82
- ↑
Iyer, ibid. at paras 97 to 99
- ↑
Aldaba, supra at para 9