Criminal Law Notebook

Admitting Wiretap Evidence

This page was last substantively updated or reviewed January 2016. (Rev. # 95333)

General Principles

Section 189(5) establishes the statutory rules and preconditions for the admissibility of certain intercept evidence. [1]This would include:

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 satisfy s. 189 requirements.[6]

History

Under the previous legislation, s. 189(1) required automatic exclusion of any wiretap evidence unless "the interception was lawfully made."

  1. ↑ R v Tam, 2000 CanLII 5699 (ON CA), [2000] 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.")
  2. ↑ R v Nguyen, 2001 ABPC 52 (CanLII), 294 AR 201, per Stevenson ACJ, at para 29
  3. ↑ Nguyen, ibid., at para 29
  4. ↑ R v Iyer, 2015 ABQB 577 (CanLII), per Moen J, at para 74
  5. ↑ 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
  6. ↑ Tam, supra
    R v Rowbotham, 1988 CanLII 147 (ON CA), 63 CR (3d) 113, per curiam

Notice

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

What amounts to a "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(1) to (4) [Repealed, 1993, c. 40, s. 10]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 [Pt. VI – Invasion of Privacy (ss. 183 to 196.1)] 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.


[omitted (6)]
R.S., 1985, c. C-46, s. 189; 1993, c. 40, s. 10.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 189(5)


Defined terms: "authorization" (s. 183), "interception" (s. 183), and "private communication" (s. 183)

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]

No Notice for Preliminary Inquiry

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

No Notice re Content

There is no obligation to provide notice of what exactly was intercepted.[7]

Particulars

The notice provided under s. 189(5) be adequate, the defence of remedy under section 190 to see particulars. [8]

Further particulars

190 Where an accused has been given notice pursuant to subsection 189(5) [notice of intention to produce wiretap evidence], 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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 190


Defined terms: "accused" (s. 2) and "private communication" (s. 183)

Failure to Notify

Where there has been no proper notice pursuant to s. 196, the intercept does not become unlawful.[9]

  1. ↑ 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)
  2. ↑ Pleich, ibid.
  3. ↑ R v Proudfoot, 1995 ABCA 409 (CanLII), 102 CCC (3d) 260, per curiam
  4. ↑ 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
  5. ↑ R v Shalala, 2000 CanLII 20260 (NB CA), 45 WCB (2d) 203, per curiam, at para 123
  6. ↑ LeBlanc and Steeves v R, 2009 NBCA 84 (CanLII), 250 CCC (3d) 29, per Richard JA
  7. ↑ R v Zaduk, 1979 CanLII 1960 (ON CA), (1979) 46 CCC 327, per Arnup JA
  8. ↑ R v Tam, 2000 CanLII 5699 (ON CA), per Goudge JA, at para 21
  9. ↑ R v Welsh (No 6), 1977 CanLII 1215 (ON CA), 1977 32 CCC (2d) 363, per Zuber JA

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.), per Hrabinsky J, at paras 12 to 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] AJ No 1327 (CA), per curiam
    R v Shea, 2011 NSCA 107 (CanLII), [2011] 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
  2. ↑ see Traditional Exceptions to Hearsay
  3. ↑ R v Lepage and Oliynyk, 2008 BCCA 132 (CanLII), [2008] BCJ No 524, per Hall JA, at para 37
  4. ↑ Shields, supra, at para 101
  5. ↑ 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
[omitted "(1) to (4)" and (5)]

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 (CanLII), (DOJ)

Note up: 189(6)


Defined terms: "interception" (s. 183)

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]

  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]

  1. ↑ 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
  2. ↑ Iyer, ibid., at paras 97 to 99
  3. ↑ Aldaba, supra, at para 9

See Also

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