Supreme Court of Canada
Goldman v. R., [1980] 1 S.C.R. 976
Date: 1979-12-21
Gordon David Goldman (Plaintiff) Appellant;
and
Her Majesty The Queen (Defendant) Respondent.
1979: March 14; 1979: December 21.
Present: Laskin C.J. and Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and Mclntyre JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Conspiracy to possess counterfeit money—Evidence—Admissibility—Conversations recorded by consent of one party—Proof of consent—Consenter not a witness—Criminal Code, ss. 178.1, 178.11(2)(a), 178.16(1)—Protection of Privacy Act, 1973‑74 (Can.), c. 50.
Evidence—Interception—Conversations intercepted by consent—Direct conversation—Telephone conversation—Admissibility—Voluntariness of consent—Proof of consent—Criminal Code, ss. 178.1, 178.11(2)(a), 178.16(1)—Protection of Privacy Act, 1973-74 (Can.), c. 50.
Appellant Goldman was acquitted on a charge of conspiracy with one Cremascoli (now deceased), one Dwyer, and others unknown, to possess counterfeit American money. The Crown case depended on the admission in evidence of recordings made by police of two conversations on May 20, 1976 between Dwyer and appellant. The first was a telephone conversation and the second a direct conversation during which Dwyer was fitted with a concealed device and from which transmissions were recorded by the police who were some distance away. Dwyer, arrested in the U.S., was found to be in possession of counterfeit U.S. money and to avoid serious punishment agreed to assist the police. He was brought to Canada and gave a consent in writing to the interception of his conversations with Goldman. After completing his part in the matter he returned to the U.S. and has not since been seen by agents of the Crown. Dwyer was not called as a witness at the trial and after a lengthy voir dire the trial judge refused to admit the evidence. The judge concluded that Dwyer had given bona fide consent to the interception but also that the interceptions having been made without judicial authority were not lawfully made within s. 178.16(1)(a) of the Criminal Code and therefore, that since Dwyer’s consent did not include a consent to the admission of evidence under s. 178.16(1)(b), the evi-
[Page 977]
dence was excluded. The Court of Appeal however accepted the trial judge’s finding as to the nature of Dwyer’s consent, but held that such consent made the interception lawful and that the evidence was admissible under s. 178.16(1)(a). A new trial was accordingly ordered.
Held (Laskin C.J. dissenting): The appeal should be dismissed.
Per Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and Mclntyre JJ.: In addition to its submissions on the points raised by the appellant the Crown argued that the intercepted conversations were not private communications within the meaning of s. 178.1 of the Criminal Code because Dwyer, who originated them, had consented to and knew of the interception and that accordingly Part IV.1 of the Code did not apply and the conversations were admissible under the common law rules of evidence. The point was not argued at trial and not decided by the Court of Appeal which relied on other grounds for its decision. Once under the definition of “private communication”, it is the originator’s state of mind that is decisive. If Dwyer was the sole originator of the communications then they were not private within the terms of the Protection of Privacy Act and they would not be subject to the terms of Part IV.1 of the Criminal Code. There is however the distinction that the Code speaks of a “private communication” and not of a “private conversation”. It would be an over simplification to say that, in the case of a telephone conversation, the “originator of the private communication” is the person who made the call; or that in the case of a direct conversation the originator was either the arranger of the meeting or the person who made the first remark. Conversation is the broader term and includes an interchange of a series of communications. It is consistent with the scheme of Part IV.1 to consider that the originator of a private communication (under s. 178.1) is the person who makes the remark or series of remarks which the Crown seeks to adduce in evidence. Such a person, speaking with a reasonable expectation of privacy, who makes statements in an electronically intercepted conversation, has, as the originator of them, the protection of the privacy provisions of the Criminal Code. The admissibility of the statements at any subsequent trial will depend on Part IV.1 of the Code. To the extent that the conversations in this appeal were originated by the appellant they were private under the Act.
While there had been no judicial authorization for the interceptions and the Crown relied solely on a consent to intercept under s. 178.11(2)(a), it is clear, first, that
[Page 978]
prior to the passing of the Protection of Privacy Act interceptions such as these were lawful and further that the only Criminal Code provision which could render them unlawful is s. 178.11(1). Subsection (2) of s. 178.11 excepts from the strictures of subs. (1) an interception by consent. A consent interception under s. 178.11(2) is thus unaffected by subs. (1) and remains lawful. The interceptions here, if made with a valid consent, would be lawful under s. 178.16(1) and evidence thereof admissible.
The courts below did not err in their determination of what constituted consent. Consent must be voluntary (i.e. free from coercion) and made knowingly, with an awareness of the significance of the consent. On the evidence here the consent was valid and legally effective.
Finally the admission of the signed consent of Dwyer did not contravene the hearsay rule—Dwyer not having been called to give evidence at the trial. The consent in question [under s. 178.11(2)(a)] may be express or implied and on the evidence the Crown properly discharged the onus upon it and raised a clear implication of consent.
Per Laskin C.J., dissenting: In Rosen v. The Queen, [1980] 1 S.C.R. 961, the point was made in dissent that the ex post facto consent given in that case to make conversations with the accused admissible against him, being procured by the Crown by a promise of benefit, was not voluntary. If that dissent was right on this point, the present case is a fortiori. Once an improper inducement is established any confession that follows is tainted and inadmissible in evidence. Such a fundamental question as the voluntariness of a consent cannot be avoided by calling it a question of fact. The confession cases do not support the position that notwithstanding a threat or fear of prejudice, or promise of benefit or advantage, there may still be a finding of voluntariness as being one of fact. The proper construction of the definition of “private communication” and the meaning of “originator” should be left open.
[R. v. Miller & Thomas (No. 1) (1975), 28 C.C.C. (2d) 94 (B.C. Co. Ct.); R. v. LaSarge (1976), 26 C.C.C. (2d) 388; Ibrahim v. The Queen, [1914] A.C. 599; Rosen v. The Queen, [1980] 1 S.C.R. 961, referred to.]
[Page 979]
APPEAL from a judgment of the Court of Appeal for Ontario[1] allowing an appeal against an acquittal on a charge of conspiracy, with others, to pass counterfeit money. Appeal dismissed, Laskin C.J. dissenting.
Earl J. Levy, Q.C., for the appellant.
David Watt, for the respondent.
The following are the reasons delivered by
THE CHIEF JUSTICE (dissenting)—In my reasons in Rosen v. The Queen[2], which are being issued concurrently with the reasons that now follow in this case, I took the point, as a decisive ground for ordering a new trial, the the ex post facto consent given in the Rosen case to make conversations with the accused admissible against him, being procured by the Crown by a promise of benefit, was not voluntary. The conversations were, therefore, not admissible. If I was right on this point in the Rosen case then, in the present case, it is a fortiori.
Whereas in Rosen there was an illegally intercepted communication and the ex post facto consent was intended to make it admissible in evidence, here the promise of leniency to one Dwyer (who was found in possession of counterfeit bills) preceded the recording of any conversation with the appellant Goldman. In reliance on the promise of leniency, Dwyer proceeded to co-operate with the police who, having his written consent, intercepted a telephone conversation and also a face-to-face conversation during which Dwyer wore a concealed body pack. The distinction taken by my brother Mclntyre (in refusing to adapt the confession rule to privacy cases) between an inculpatory statement induced by a promise of benefit held out by a person in authority and an already intercepted communication does not apply in the present case.
[Page 980]
True, there may be a formal similarity in the two situations, but where the promise of benefit or fear of prejudice, as the case may be, induces a person in Dwyer’s position to initiate a private communication with an accused which is going to be intercepted by the police, there is the likelihood of leading the accused into damaging statements in order to redeem the promise of benefit or avoid any likely prejudice. It must be remembered that in this case Dwyer, after completing his assignment for the police, went back to the United States and was not available to give evidence at Goldman’s trial.
To repeat, if I was correct in Rosen, the present case is a fortiori. Moreover, I am unable to appreciate how such a fundamental question as the voluntariness of a consent can be avoided by calling it a question of fact. The confession cases do not, in my opinion, support the position that notwithstanding a threat or fear of prejudice, or promise of benefit of advantage, there may still be a finding of voluntariness as being one of fact. Once an improper inducement is established, any confession that follows is tainted and is inadmissible in evidence: see Kaufman, Admissibility of Confessions (2nd ed. 1973), c. 5, at pp. 70 et seq.
Although this is enough to dispose of the present case (in which I would set aside the order for a new trial by the Ontario Court of Appeal and restore the acquittal at trial), there are other important questions here which merit canvass. In Rosen, I was content to proceed on the assumption that the phrase “lawfully made” in s. 178.16(1)(a) covered both judicially authorized interceptions and interceptions made with prior consent, leaving s. 178.16(1)(b) as a provision envisaging ex post facto consent to admission in evidence of an interception that was originally illegal. I am not prepared to rest on this assumption in this case. In my opinion, there is at least ambiguity in the words “lawfully made”, and good ground for resolving it in favour of the policy of protection of privacy.
[Page 981]
The present Criminal Code provisions with which we are concerned originated in the Protection of Privacy Act, 1973-1974 (Can.), c. 50, an Act which not only added a new Part IV.1 to the Criminal Code under the heading “Invasion of Privacy”, but as well a new Part I.1 to the Crown Liability Act, also headed “Invasion of Privacy” and also amended the Official Secrets Act to authorize the Solicitor General to issue warrants for intercepting communications where evidence under oath satisfied him that the interception was necessary for the prevention or detection of subversive activity or necessary to safeguard the security of Canada. The amendment went on to specify the contents of a warrant so issued.
It is by no means clear to me that prior to the passing of the Protection of Privacy Act interceptions such as those made here were lawful. They were at least civil trespasses or invasions of privacy, although, in line with the common law, the fruits of the interceptions were, if relevant to an issue in a criminal trial, admissible in evidence. If the words “lawfully made” in s. 178.16(1)(a) mean simply not prohibited by law then, of course, they would cover interceptions made with prior consent as well as those made through judicial authorization.
I set out here the relevant provisions of the Criminal Code which give perspective to the view that I hold of the words “lawfully made”. They are as follows:
178.1 In this Part,
“authorization” means an authorization to intercept a private communication given under section 178.13 or subsection 178.15(2);
“private communication” means any oral communication or any telecommunication made under circumstances in which it is reasonable for the originator thereof to expect that it will not be intercepted by any person other than the person intended by the originator thereof to receive it;
[Page 982]
178.11 (1) Every one who, by means of an electromagnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for five years.
(2) Subsection (1) does not apply to
(a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it;
(b) a person who intercepts a private communication in accordance with an authorization or any person who in good faith aids in any way a person whom he has reasonable and probable grounds to believe is acting with any such authorization;
(c) a person engaged in providing a telephone, telegraph or other communication service to the public who intercepts a private communication,
(i) if such interception is necessary for the purpose of providing such service,
(ii) in the course of service observing or random monitoring necessary for the purpose of mechanical or service quality control checks, or
(iii) if such interception is necessary to protect the person’s rights or property directly related to providing such service; or
(d) an officer or servant of Her Majesty in right of Canada in respect of a private communication intercepted by him in the course of random monitoring that is necessarily incidental to radio frequency spectrum management in Canada.
(3) Where a private communication is originated by more than one person or is intended by the originator thereof to be received by more than one person, a consent to the interception thereof by any one of such persons is sufficient for the purposes of paragraph (2)(a), subsection 178.16(1) and subsection 178.2(1).
178.12 An application for an authorization shall be made ex parte and in writing to a judge of a superior court of criminal jurisdiction, or a judge as defined in section 482 and shall be signed by the Attorney General of the province in which the application is made or the Solicitor General of Canada or an agent specially designated in writing for the purposes of this section by
(a) the Solicitor General of Canada personally, if the offence under investigation is one in respect of which proceedings, if any, may be instituted at the instance
[Page 983]
of the Government of Canada and conducted by or on behalf of the Attorney General of Canada, or
(b) the Attorney General of a province personally, in respect of any other offence in that province,
and shall be accompanied by an affidavit which may be sworn on the information and belief of a peace officer or public officer deposing to the following matters, namely:
(c) the facts relied upon to justify the belief that an authorization should be given together with particulars of the offence;
(d) the type of private communication proposed to be intercepted;
(e) the names and addresses, if known, of all persons, the interception of whose private communications there are reasonable and probable grounds to believe may assist the investigation of the offence, and if not known, a general description of the place at which private communications are proposed to be intercepted or, if a general description of that place cannot be given, a general description of the manner of interception proposed to be used;
(f) the period for which the authorization is requested; and
(g) whether other investigative procedures have been tried and have failed or why it appears they are unlikely to succeed or that the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures. 1973, c. 50, s. 2.
178.13 (1) An authorization may be given if the judge to whom the application is made is satisfied that it would be in the best interests of the administration of justice to do so and that
(a) other investigative procedures have been tried and have failed;
(b) other investigative procedures are unlikely to succeed; and
(c) the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.
(2) An authorization shall
(a) state the offence in respect of which private communications may be intercepted;
(b) state the type of private communication that may be intercepted;
[Page 984]
(c) state the identity of the persons, if known, whose private communications are to be intercepted and where the identity of such persons is not known, generally describe the place at which private communications may be intercepted or, if a general description of that place cannot be given, generally describe the manner of interception that may be used;
(d) contain such terms and conditions as the judge considers advisable in the public interest; and
(e) be valid for the period, not exceeding thirty days, set forth therein.
…
178.15 (1) Notwithstanding section 178.12, an application for an authorization may be made ex parte to a judge of a superior court of criminal jurisdiction, or a judge as defined in section 482, designated from time to time by the Chief Justice, by a peace officer specially designated in writing for the purposes of this section by
(a) the Solicitor General of Canada, if the offence is one in respect of which proceedings, if any, may be instituted by the Government of Canada and conducted by or on behalf of the Attorney General of Canada, or
(b) the Attorney General of a province, in respect of any other offence in the province,
if the urgency of the situation requires interception of private communications to commence before an authorization could, with reasonable diligence, be obtained under section 178.13.
(2) Where the judge to whom an application is made pursuant to subsection (1) is satisfied that the urgency of the situation requires that interception of private communications commence before an authorization could, with reasonable diligence, be obtained pursuant to section 178.13, he may, on such terms and conditions, if any, as he considers advisable, give an authorization in writing for a period of up to thirty-six hours.
(3) For the purposes of section 178.16 only, an interception of a private communication in accordance with an authorization given pursuant to this section shall be deemed not to have been lawfully made unless the judge who gave the authorization or, if such judge is unable to act, a judge of the same jurisdiction, certifies that if the application for the authorization had been made to him pursuant to section 178.12 he would have given the authorization.
…
178.16 (1) A private communication that has been intercepted and evidence obtained directly or indirectly
[Page 985]
as a result of information acquired by interception of a private communication are both inadmissible as evidence against the originator thereof or the person intended by the originator thereof to receive it unless
(a) the interception was lawfully made; or
(b) the originator of the private communication or the person intended by the originator thereof to receive it has expressly consented to the admission thereof.
(2) Where in any proceedings the judge is of the opinion that any private communication or any other evidence that is inadmissible pursuant to subsection (1)
(a) is relevant, and
(b) is inadmissible by reason only of a defect of form or an irregularity in procedure, not being a substantive defect or irregularity, in the application for or the giving of the authorization under which such private communication was intercepted or by means of which such evidence was obtained, or
(c) that, in the case of evidence, other than the private communication itself, to exclude it as evidence may result in justice not being done.
he may, notwithstanding subsection (1), admit such private communication or evidence as evidence in such proceedings.
…
(4) A private communication that has been lawfully intercepted shall not be received in evidence unless the party intending to adduce it has given to the accused reasonable notice of his 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 forth 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.
…
I refer also to provisions of the Crown Liability Act as added by the Protection of Privacy Act, these being,
7.1 In this Part,
“authorization” means an authorization to intercept a private communication given under section 178.13 of the Criminal Code;
…
[Page 986]
7.2 (1) Subject to subsection (2), where a servant of the Crown, by means of an electromagnetic, acoustic, mechanical or other device, intentionally intercepts a private communication, in the course of his employment, the Crown is liable for all loss or damage caused by or attributable to such interception, and for punitive damages in an amount not exceeding $5,000, to each person who incurred such loss or damage.
(2) The Crown is not liable under subsection (1) for loss or damage or punitive damages referred to therein where the interception complained of
(a) was lawfully made;
(b) was made with the consent, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it; or
(c) was made by an officer or servant of the Crown in the course of random monitoring that is necessarily incidental to radio frequency spectrum management in Canada.
…
The tort liability imposed upon the Crown by s. 7.2(1) above parallels the criminal liability imposed by s. 178.11(1) of the Criminal Code, but in each case there are qualifying or saving provisions found in s. 7.2(2) and s. 178.11(2) respectively. The qualification of tort liability under s. 7.2(2)(a) where the interception was “lawfully made” necessarily excludes express or implied consent to an interception since this is provided for under s. 7.2(2)(b), being in the same wording as s. 178.11(1)(b) of the Criminal Code. So too, s. 7.2(2)(c) is a particular saving provision which again limits the meaning of “lawfully made” in s. 7.2(2)(a). It appears to me to follow that the words “lawfully made” refer to a judicial authorization, having regard to the fact that “authorization” is defined in s. 7.1 of the amended Crown Liability Act by reference to the definition of this word in s. 178.13 of the Criminal Code. The way in which the Criminal Code amendments and those in the Crown Liability Act are tied together strongly supports the conclusion that the same construction should be placed upon the words “lawfully made” in both statutes.
[Page 987]
Even if reference is had to the Criminal Code amendments alone, their context under the Protection of Privacy Act points to a difference between interceptions that, because of judicial authorization, are “lawfully made” and those that are made with consent. This difference is reflected in s. 178.15(3) as well as in s. 178.16(2)(b). Thus, s. 178.15(3) opens with the words “For the purposes of s. 178.16 only, an interception of a private communication in accordance with an authorization given pursuant to this section shall be deemed not to have been lawfully made unless.”, and the provisions of s. 178.16(2)(b) referring to defects in form of an authorization, are consistent with the view that “lawfully made” refers to judicial authorization. They cannot have any application to interceptions under s. 178.11(2)(a) or to those permitted for the limited purposes of s. 178.11(2)(c) and (d). Again, the notice provisions of s. 178.16(4) bear a similarity to the information that must be included in an authorization under s. 178.13 and thus reinforce my view that s. 178.16(1)(a) applies only to judicial authorization of an interception.
In my opinion, s. 178.16, in the light of the elaborate controls set up under ss. 178.11 to 178.14 was designed to protect privacy of communication by altering the common law rule as to admission of illegally obtained evidence, so that even if collaboration with the police resulted under s. 178.11(2)(a), this did not ipso facto make the evidence obtained by a consensual interception admissible without a further consent under s. 178.16(1)(b). I do not agree that the legislation under examination is sufficiently clear to warrant the conclusion that a consent under s. 178.11(2)(a) dispenses with any further consent in relation to admissibility. Indeed, s. 178.16(2) reinforces this position.
In principle, I see a vast difference between a judicial authorization for an interception which, at the same time, would make its fruits admissible in evidence and a prior consent by a private person to
[Page 988]
an interception destroying another’s expected privacy. Of course, Parliament could prescribe that for the purpose of admissibility in evidence both situations be treated the same way. It has not, however, done so with the clarity that should be present to enable A., by consenting to an interception of private communications with B., to make those communications admissible without more against B. It is not only that one may distinguish the positive words “lawfully made” from the excepting terms of s. 178.11(2)(a) (framed in the negative), but there are the other indications of a difference running through the various sections that I have quoted, sufficient to establish an ambiguity in s. 178.16(1)(a) and to support subject matter in a requirement of a further consent under s. 178.16(1)(b).
The two points I have taken are enough to dispose of this case and I leave for consideration on another occasion the admissibility in evidence of Dwyer’s signed consent when he himself was not available as a witness. Again, I leave open the question of the proper constitution of the definition of “private communication”, especially in respect of the meaning of “originator”.
As I have previously indicated, I would allow the appeal, set aside the order of the Ontario Court of Appeal and restore the acquittal at trial.
The judgment of Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and Mclntyre JJ. was delivered by
MCINTYRE J.—This is an appeal from the judgment of the Court of Appeal for Ontario which allowed a Crown appeal against the acquittal of the appellant, sometimes referred to hereafter as Goldman, on a charge of conspiracy with one Cremascoli (now deceased), one Dwyer, and others unknown, to possess counterfeit American money. The Crown’s case depended upon the admission in evidence of recordings made by the police of two conversations between the appellant and Dwyer on May 20, 1976. The first was a telephone conversation, and the second a direct conversation between Dwyer and the appellant during which Dwyer was fitted with a concealed body pack, transmissions
[Page 989]
from which were recorded by the police who were some distance away.
Dwyer was arrested in the United States and found to be in possession of counterfeit United States money. To avoid serious punishment, he agreed to assist the police. He was brought to Canada and gave a consent in writing to the interception of his conversations with Goldman. After completing his part in the matter, he returned to the United States and has since not been seen by agents of the Crown. There is evidence, however, that he has been interviewed by representatives of the appellant.
The Crown tendered the evidence of intercepted conversations at Goldman’s trial and a voir dire lasting some six days was held to determine the admissibility of such evidence. Dwyer was not called as a witness. The trial judge refused to admit the evidence. He considered that Dwyer had given a bona fide consent to the interception of the communications with Goldman free from any police coercion even though Dwyer was not present in court to give evidence before him. However, he also concluded that the interceptions, having been made without any judicial authorization, were not lawfully made within the meaning of s. 178.16(1)(a) of the Criminal Code. He therefore concluded that they could not be admitted in evidence and, since Dwyer’s consent to the interception did not include a consent to the admission of the evidence under s. 178.16(1)(b), it was excluded. The Crown adduced no other evidence except to prove the circumstances relating to the arrest of Dwyer and an acquittal resulted.
The Court of Appeal adopted a different view. It accepted the trial judge’s finding as to the nature of the consent given by Dwyer, but it went further and held that the giving of such consent made the interception lawful. The evidence was therefore held to be admissible under s. 178.16(1)(a). The appeal was allowed and a new trial ordered.
[Page 990]
The appellant raised several grounds of appeal in this Court. To summarize, it was contended that the Court of Appeal was wrong in holding that an interception of a private communication is lawfully made under s. 178.16(1)(a) when made by a consent under s. 178.11(2)(a) and without judicial authorization; that it was wrong in its determination of what constitutes a valid consent under s. 178.11(2)(a) of the Criminal Code; that it was wrong in holding that Dwyer did in fact consent to the interception; and that it was wrong in admitting in evidence a form of consent signed by Dwyer when he gave no evidence at trial. The Crown, in addition to its submissions on the points raised by the appellant, argued that the intercepted conversations were not private communications within the meaning of s. 178.1 of the Criminal Code because Dwyer, who originated them, had consented to and knew of the interception and consequently had no reasonable belief that the conversations would not be intercepted. Therefore, it was said, Part IV.1 of the Criminal Code did not apply and the conversations were admissible under common law rules of evidence. This point was not argued at trial. It was raised in the Court of Appeal but not decided because the court relied upon other grounds for its decision. Because of its importance in the case, I propose to deal with it at the outset.
Section 178.1 defines a “private communication” in these terms:
“private communication” means any oral communication or any telecommunication made under circumstances in which it is reasonable for the originator thereof to expect that it will not be intercepted by any person other than the person intended by the originator thereof to receive it;
Prior to the coming into effect of the Protection of Privacy Act in 1974 which amended the Criminal Code by the addition of Part IV.1, an intercepted communication of the kind described above was admissible in evidence, subject to established common law rules of evidence, without the statutory restrictions now found in Part IV.1 of the Criminal Code (ss. 178.1 and 178.11 to 178.22 inclusive). One effect of Part IV.1 was to break
[Page 991]
new ground and impose restrictions upon the admission of such evidence. Section 178.11 is reproduced hereunder:
178.11 (1) Every one who, by means of an electromagnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for five years.
(2) Subsection (1) does not apply to
(a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it;
(b) a person who intercepts a private communication in accordance with an authorization or any person who in good faith aids in any way a person whom he has reasonable and probable grounds to believe is acting with any such authorization;
(c) a person engaged in providing a telephone, telegraph or other communication service to the public who intercepts a private communication,
(i) if such interception is necessary for the purpose of providing such service,
(ii) in the course of service observing or random monitoring necessary for the purpose of mechanical or service quality control checks, or
(iii) if such interception is necessary to protect the person’s rights or property directly related to providing such service; or
(d) an officer or servant of Her Majesty in right of Canada in respect of a private communication intercepted by him in the course of random monitoring that is necessarily incidental to radio frequency spectrum management in Canada.
(3) Where a private communication is originated by more than one person or is intended by the originator thereof to be received by more than one person, a consent to the interception thereof by any one of such persons is sufficient for the purposes of paragraph (2)(a), subsection 178.16(1) and subsection 178.2(1).
The facts, so far as they relate to this point, may be shortly stated. On May 20, 1976, in Toronto, at about 8:00 a.m., Dwyer in the presence of police officers made a telephone call to Goldman. A device had been installed upon the telephone which enabled the recording of this conversation. This
[Page 992]
fact was, of course, known to Dwyer but unknown to Goldman. By this time Dwyer had agreed to co-operate with the police and to assist in the investigation. The same day, a body pack transmission device was concealed upon Dwyer’s person by the police with Dwyer’s consent. Dwyer then went to Goldman’s office where he met and had a fifteen minute conversation with him. By means of the concealed body pack, the police, who were some distance away, were able to receive and record the conversation. Prior to the phone call and the meeting with the appellant, Dwyer had signed a form of consent to the interception of his conversations with the appellant.
For the purpose of dealing with this branch of the case, it is not necessary to consider whether the consent on the part of Dwyer was a valid and effective consent or whether the written consent was properly admissible in evidence. These questions will be dealt with later. It is sufficient to observe that it was abundantly clear that, during both the telephone conversation and the personal conversation which followed, Dwyer was fully aware that the police were intercepting and recording the words spoken. Dwyer then had no reasonable expectation that the conversations would not be intercepted. It must be accepted as well that the appellant was unaware of any interception. There is no evidence to suggest that he was aware of Dwyer’s involvement with the police. It is a reasonable assumption, which I make for the purpose of this argument, that Goldman did have a reasonable expectation that the conversation would not be intercepted, in other words, that it would be a private communication.
It will be observed at once that under the definition of “private communication” it is the originator’s state of mind that is decisive. It follows, in my opinion, that if Dwyer was the sole originator of the communications they were not private communications within the meaning of the Act. They would not be subject to the terms of Part IV.1 of the Criminal Code. The appellant’s state of mind on the question would seem to be of no significance. It should also be observed, however, that the definition in the Criminal Code speaks of a “private communication” and not of a “private
[Page 993]
conversation”. It falls for the court to determine whether there is any difference in the two words, for if there is and if a conversation is made up of a series of communications given and received by each of the participants the problem is more difficult. The conversation would have to be broken down into its several component communications and those communications originated by Dwyer would not be subject to Part IV.1 of the Criminal Code and would be admissible at common law as if Part IV.1 had not been enacted. Those originated by Goldman, who was innocent of knowledge of the police role in the matter, would be subject to the provisions of Part IV.1 of the Criminal Code and their admissibility against him would be determinable under the provisions of that part of the Criminal Code. The extent of the applicability of Part IV.1 must therefore be determined.
Where one is considering a telephone conversation, it would be tempting to say that the originator of the private communication is the person who made the call. It would be equally possible to consider the originator to be the person who spoke first regardless of who made the call. When considering a direct conversation, one could consider as the originator of the entire conversation either the arranger of the meeting at which the conversation took place or the person who made the first remark. The adoption of such arbitrary tests, however, involves, in my view, an oversimplification. There has been little Canadian authority on this point and none which binds this Court. This is the first occasion when it has fallen for decision here. In R. v. Miller & Thomas (No. 1)[3], it seems to have been considered that the originator of a private telephone conversation was the person who made the call. In an unreported case in the Supreme Court of British Columbia, R. v. Jasicek, McKay J., in making a ruling on the admissibility of certain evidence during the course of the trial, rejected the argument that a conversation must be broken down into its separate communications. He considered it would involve a “strained and unrealistic interpretation of clear words in the statute”. In R. v. Zoell, in the Saskatchewan Court of
[Page 994]
Appeal, April 4, 1977 (as yet unreported), a case dealing with a charge of possession of an electromagnetic device for scanning radio broadcasts contrary to s. 178.18(1) of the Criminal Code, the question arose whether police broadcasts made by police with the knowledge of a high probability of unauthorized interception were private communications. Some inferential support may be found for the separate communication argument in the words of Culliton C.J.S. where he said:
It is to be noted that the criterion to be applied in determining what constitutes a “private communication” is an objective one. That test relates only to what is in the mind of the sender. In the present case the test is simply this. In the circumstances, as shown by the evidence, under which oral radio communications are regularly made by the Regina City Police over the assigned radio frequency, can it be said, that the sender of such communications can reasonably expect that they will not be intercepted by any person other than the persons intended to receive them? (Emphasis added.)
The purpose, it has been frequently said, of Part IV.1 of the Code was to protect the right to privacy. It may be more realistic to say that the purpose or effect of Part IV.1 has been to regulate the method of breach of any such right. That the right may be subject to frequent lawful breach is clear from the scheme of Part IV.1 but the courts must be astute to limit breaches to the extent provided by the Code. With that thought in mind, it must be observed that Part IV.1 applies to the electronic interception of private communications not private conversations. In such judicial comment as I have been able to find, the courts have generally seemed to consider that communication in this context is synonymous with conversation. Accepting this view, they have simply said that he who starts the conversation is the originator. It is evident that the determination of the originator of any given communication must be made upon a construction of the words of the Code.
It is elementary to say that the courts must discern and apply the legislative intent when construing the statutes. The intent must be found upon an examination of the words employed in the enactment for it is the intent which the legislature
[Page 995]
expressed which must have effect. It is for this reason that the meaning of statutory language must be examined and on occasions fine distinctions must be made. In my view, the difference between the word conversation and the word communication is, in the context of this statutory provision, significant. A communication involves the passing of thoughts, ideas, words or information from one person to another. Conversation is a broader term and it would include, as all conversations do, an interchange of a series of separate communications. It is consistent with the scheme of Part IV.1, in my view, to consider that the originator of a private communication within the meaning of s. 178.1 is the person who makes the remark or series of remarks which the Crown seeks to adduce in evidence. If a person, with a reasonable expectation of privacy, speaking in an electronically intercepted conversation makes statements which the Crown seeks to use against him, he has, in my view, as the originator of those statements, the protection of the privacy provisions of the Criminal Code because those statements constitute private communications upon his part and their admissibility at any subsequent trial will depend upon the provisions of Part IV.1 of the Criminal Code. I do not find this a strained or unrealistic interpretation of the words of the statute. In fact, where a police officer or police agent participates in a conversation with a suspect knowing that it is being intercepted electronically and hears the suspect make hoped for inculpatory statements of importance to the Crown’s case, I am unable to consider the police officer to be the originator of the very statement or statements he was seeking to obtain.
It follows from what I have said that the Act applies here to those statements in the telephone conversation and personal conversation between Dwyer and the appellant which were originated by the appellant. To the extent that the conversations were so originated the communications were private communications under the Act and the Act applies to them.
I now turn to the other points taken in argument on behalf of the appellant. It was contended that the Court of Appeal was in error when it held that
[Page 996]
the interceptions were admissible in evidence under the provisions of s. 178.16(1)(a) as being lawfully made when there had been no judicial authorization for the making of the interceptions and the Crown relied solely on a consent to intercept under s. 178.11(2)(a).
Section 178.11 is reproduced above and the relevant parts of s. 178.16 as they then stood are reproduced hereunder:
178.16 (1) A private communication that has been intercepted and evidence obtained directly or indirectly as a result of information acquired by interception of a private communication are both inadmissible as evidence against the originator thereof or the person intended by the originator thereof to receive it unless
(a) the interception was lawfully made; or
(b) the originator of the private communication or the person intended by the originator thereof to receive it has expressly consented to the admission thereof.
In dealing with this point Brooke J.A. for the Court of Appeal said:
With the greatest deference I do not agree with the conclusion that the tape recordings were inadmissible in evidence as the interception was not lawfully made within the meaning of s. 178.16. Like some others, the learned trial judge interpreted the judgment of this Court in R. v. LaSarge (1976), 26 C.C.C. (2d) 388, as holding that to be lawfully made and admissible under s. 178.16 an interception must be made pursuant to an authorization provided for in Part IV of the Code. In my opinion, this is not the effect of that decision. In both the judgments of Houlden, J.A. and that of Martin, J.A., it is clear that consent was not in issue there but that in the circumstances of the case to be lawfully made the interception required an authorization.
Section 178.16 provides for the admissibility in evidence of an interception of a private communication in two circumstances. The evidence of the interception is admissible, first, if the interception was lawfully made and, second, evidence of all other interceptions is admissible with the consent specified in s. 178.16(1)(b). An interception of a private communication is lawfully made if one of the parties to it consented to the interception. Prior to the passing of Part IV there was no protection against the person to whom one chose to speak consenting to another listening in. Part IV proceeds on the same basis. This Court in R. v. Douglas (1977), 33 C.C.C.
[Page 997]
(2d) 395 affirmed the admissibility in evidence of an interception made with consent of a party to it who was an undercover agent when no authorization covered the interception (see Zuber, J.A., pp. 400-401). In my opinion an interception is lawfully made if made under circumstances enumerated by s. 178.11(2).
I am in full agreement with Brooke J.A. in his comments above quoted and I agree with him that R. v. LaSarge[4] is not authority for the proposition that the words “lawfully made” in s. 178.16(1)(a) mean only an interception made by judicial authorization. Section 178.11(1) makes it an indictable offence to intercept a private communication by means of the devices described and in subs. (2) provides that subs. (1) which created the offence will not apply to a person who has the consent, express or implied, of the originator of the private communication or of the person intended to receive it. This consent is a consent to interception and its effect is to preserve from illegality, in other words to render lawful, an interception of a private communication made with consent. It is important to note as well that the consent may be express or implied and may be given by either the originator of the private communication or the intended recipient. Section 178.16 is complementary to s. 178.11. It deals with admissibility of evidence which has been obtained by interceptions of private communications. It provides that an intercepted private communication is inadmissible as evidence against its originator or the person intended to receive it unless it was lawfully made or unless the originator or the person intended to receive it has expressly consented to the admission. The Crown does not allege that any such consent as that envisaged in s. 178.16(1)(b) was given in the case at bar. Therefore, that subsection is not relevant to the case. However, it is worthwhile to note that the 178.16(1)(b) consent differs from the consent in s. 178.11(2)(a) in that it is a consent to admit evidence not to intercept. The Crown’s position here is simply this, by virtue of Dwyer’s consent given under s. 178.11(2)(a), the interceptions were lawfully made within the meaning of s. 178.16(1)(a) and evidence thereof was admissible
[Page 998]
notwithstanding the absence of any further consent under s. 178.16(1)(b).
The appellant contended that the words “lawfully made” in s. 178.16(1)(a) referred only to an interception made under a judicial authorization under s. 178.11(2)(a). To support this position, he referred to the amendments to the Crown Liability Act which were also made in the Protection of Privacy Act in s. 7.2 part of which is reproduced hereunder:
7.2 (1) Subject to subsection (2), where a servant of the Crown, by means of an electromagnetic, acoustic, mechanical or other device, intentionally intercepts a private communication, in the course of his employment, the Crown is liable for all loss or damage caused by or attributable to such interception, and for punitive damages in an amount not exceeding $5,000 to each person who incurred such loss or damage.
(2) The Crown is not liable under subsection (1) for loss or damage or punitive damages referred to therein where the interception complained of
(a) was lawfully made;
(b) was made with the consent, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it;
…
It will be seen that subs. 7.2(1) creates “tortious liability” upon the Crown for intentional interception of private communications and subs. (2) relieves against such liability where (a) the interception has been lawfully made, and (b) when it is made with consent. It was argued that this enactment established a difference between an interception lawfully made and one made by consent so that the words “lawfully made” would not include an interception made by consent. This distinction, it was said, should be preserved throughout the entire Protection of Privacy Act with the result that an interception “lawfully made” within the meaning of s. 178.16(1)(a) of the Criminal Code should not include an interception made by consent under s. 178.11(2)(a) of the Criminal Code.
[Page 999]
I am not prepared to accept this argument by analogy. It was said that well established canons of construction dictated that words should receive a uniform meaning when used repeatedly in the same statute or in one in para materia. Following this principle, it was said, the separate parts of the Protection of Privacy Act which amended the Criminal Code, the Crown Liability Act and the Official Secrets Act, respectively, should be construed as a unified whole, providing one body of law applying to the separate situations covered by the separate Acts which were amended. I have no quarrel with the general proposition thus expressed but, in my view, it has no application here. Canons of construction find their principal use where there is ambiguity. They must not be employed, however, to twist and torture the plain meaning of words. Furthermore, it is not every inconsistency or contradiction in a statute which will justify reliance on artificial rules of construction in order to find a meaning which would not otherwise be clearly apparent and which would be contradictory to a clear expression of intent. Whatever questions may arise in attempting to reconcile the alleged differences between the Criminal Code amendments made in the Protection of Privacy Act and the amendments there made to the Crown Liability Act, it is perfectly clear that prior to the passing of the Protection of Privacy Act interceptions such as those in question here were lawful. It is equally clear that the only provision in the Criminal Code which could render such interceptions unlawful is s. 178.11(1). It is also clear that subs. (2) of s. 178.11 excepts from the strictures of subs. (1) an interception by consent. It follows then unmistakably that a consent interception under s. 178.11(2) is unaffected by subs. (1) and remains lawful. Therefore the interception here, if made with a valid consent, would be lawfully made within the meaning of s. 178.16(1)(a) and evidence thereof would be admissible.
The second and third points argued by the appellant may be dealt with together and they will require some more detailed reference to the evidence. It was argued that the Court of Appeal and
[Page 1000]
the trial judge were in error in their determination of what constituted a consent under s. 178.11(2)(a) and in the further finding that Dwyer in fact gave a valid consent.
Dwyer was arrested in Florida on May 17, 1976. He had been caught while trying to pass a counterfeit fifty dollar American bill in a retail store. A search made of his person on his arrest revealed that he was then carrying three more fifty dollar counterfeit bills and two conterfeit ten dollar bills, all American. He was questioned by the American authorities. He directed the police to a restaurant where a woman friend of his gave to the police a further quantity of American counterfeit notes to a face value of four thousand one hundred and ninety dollars. Dwyer was released the same day on his own recognizance in the amount of twenty-five thousand dollars with no deposit. He appeared as required the following day before a U.S. magistrate and was released on his own recognizance in the amount of five thousand dollars without deposit, Dwyer agreed to co-operate with the police in the matter and that day flew to Toronto with the American police officers. From the evidence of American police, it was clear that Dwyer had been questioned at length after his arrest as had his woman friend. They had been told of possible charges they would face which could involve maximum sentences of imprisonment for fifteen years. In the result, Dwyer pleaded guilty to a charge of attempted uttering of counterfeit money. His plea was taken in the magistrate’s chambers and he was released on probation. No charges were preferred against his woman friend but the officer acknowledged that they were “held in abeyance”. The officers denied that any threats or inducements were employed in the matter.
Dwyer was interrogated by the police on his arrival in Toronto. A police officer, one Constable Sayers of the Toronto police, described how the interceptions were made. He interviewed Dwyer about 8.00 p.m. on May 19, 1976. He said he explained the consent form which he presented to Dwyer and Dwyer signed it. This form is exhibit 11 and is in these words:
[Page 1001]
CON 044/76
CANADA ) IN THE MATTER OF a consent
) to intercept the private
PROVINCE OF ) communications of Michael Dwyer,
ONTARIO ) by means of an electromagnetic,
(TERRITORIAL ) acoustic, mechanical or other
DIVISION ) device pursuant to section
) 178.11(2)(a) of the
) Criminal Code.
CONSENT
I, Michael Dwyer, of the Municipality of Toronto, in the County of York, in the Province of Ontario, hereby expressly consent to the interception by means of an electromagnetic, acoustic, mechanical or other device of any private communications to which I am a party either as an originator or intended recipient by officers of Metropolitan Toronto Police and such other persons as may be necessary to assist them in the interception of the abovementioned private communications from this date until the investigation is concluded.
DATED at Toronto, this 19th day of May, 1976.
|
Laverne M. Sayers |
M. Dwyer |
| WITNESS |
Consenting Originator (or, intended recipient). |
Laverne M. Sayers, P.C. 2999
He then installed a voice transmitter on Dwyer’s back. It was concealed by Dwyer’s clothing. The officer then posted himself at the rear of the location described as the Bermuda Tavern. There he recorded transmissions from Dwyer’s body pack of a conversation of some three hours’ duration from the interior of the tavern. The results of this adventure did not satisfy the police. There was some dissatisfaction expressed by them with Dwyer’s performance and a second attempt was made on May 20, 1976.
On this occasion, and I am again relying largely on the evidence of Sayers, at 8:00 a.m. Sayers put
[Page 1002]
an electronic device on the telephone of one of the senior police officers in the police building. This device enabled the interception of conversation on this telephone. Dwyer, in the presence of various police officers, then made a call on the telephone so equipped to Goldman. At about 12:30 p.m. the same day, Sayers outfitted Dwyer again with a concealed body pack voice transmitter. He than went to the vicinity of 1240 Bay Street in Toronto where Goldman’s office was situated and from the transmissions from Dwyer’s body pack he recorded a conversation of about fifteen minutes’ duration between Dwyer and Goldman. The tapes and transcripts made of the interceptions of the call by Dwyer on the telephone from the police office and the conversation between Dwyer and Goldman at 1240 Bay Street are those which the Crown adduced in evidence.
During this period, that is, from the time of the arrest of Dwyer to the conclusion of his activities in Toronto, he was subjected to detailed questioning by the police. The police said that he was co-operative, that he was not threatened or offered special inducements, but it is clear that in return for his co-operation he was leniently dealt with and his woman friend was not prosecuted. The police officers were closely cross-examined and certain conflicting evidence was brought out. However, the trial judge who heard the evidence and saw the witnesses over a period of some six days said:
Fundamental to this aspect of the Crown’s argument is the issue of consent, one of the principal issues upon which counsel have joined. Did Dwyer consent to the interception and if so, was that consent real and valid? Considerable evidence was given from which Dwyer’s attitude and his state of mind may be assessed during the course of preparatory steps taken for the interception as well as during and following the interception. Each officer who had any significant contact with Dwyer at these critical times appears to have given evidence. I have been satisfied by the Crown that there is no evidence to support Mr. Levy’s suggestion that Dwyer’s consent was the result of actual or threatened force, coercion, duress or any similar conduct on the part of the authorities.
Dwyer was a person of some recorded criminal reputation and was found in constructive possession of a
[Page 1003]
substantial amount of counterfeit money. In the result, he was prosecuted upon a relatively minor offence, was released upon his personal bond without restriction. He was sentenced in Judges’ Chambers, a procedure acknowledged as extraordinary by one of the American officers who testified. He received what might be interpreted as a sanction inappropriately lenient to both his conduct and his previous criminal record. The prosecution of his woman companion was held in abeyance. No charges were contemplated in Ontario. The evidence contains vague but unmistakeable reference to some form of agreement in which leniency was to be exchanged for Dwyer’s cooperation.
The only reasonable inference on all of the evidence is that Dwyer was in fact persuaded by promise of leniency to cooperate with the police in the interception.
And later:
I am accordingly prepared to find that the Crown has satisfied me that Dwyer in fact gave real and valid consent to the interception although undoubtly persuaded to do so by promises of leniency given him by the police.
It is evident that the trial judge understood the importance of the issue before him. It is evident as well that he was not blind to the fact that Dwyer co-operated with the police out of selfish motives in exchange for leniency but he nevertheless considered that an effective and acceptable consent had been given. I am not prepared, on my reading of the evidence, to disturb that finding.
The Court of Appeal, while differing in the result because of its interpretation of s. 178.16 of the Criminal Code, was also of this view. Brooke J.A. said:
Turning first to Mr. Levy’s submission that the trial judge erred in making his finding that Dwyer gave a real and valid consent. It is important to recognize, that in cases such as this one, where the person who would normally be the principal witness was not present, and gave no evidence, while the issue and degree of proof remain the same, extra caution is required by the Court in testing the evidence presented. After all, the only witnesses were police witnesses whose conduct was very much in issue and it remained unchallenged, save as tested by cross-examination. In this case Mr. Levy quite correctly refers to the finding by the learned trial judge,
[Page 1004]
that Dwyer was undoubtedly persuaded to consent to the interception by promises of leniency by the police as a finding against the credibility of police witnesses who repeatedly stated that Dwyer had been promised nothing. Mr. Levy refers to the significant instance in Toronto where Dwyer had lied to the police and led them to a false meet which was quite the contrary to co-operation. He draws our attention to the fact that for some unstated reason Dwyer then became sincere in his co-operation after police accusations of deceit and an attempt to use them. Counsel submits that there must at least have been coercion or something more than mere promises of leniency. He contends that one finding against the credibility of police witnesses should cast doubt on the whole affair.
Considering all of the evidence and proceeding with the caution I have referred to, I find no reason to say the learned trial judge was wrong on the evidence before him in making the finding that he did. It is clear from the beginning that Dwyer set out to co-operate and achieve his freedom with the least punishment possible. His co-operation was the means through which he sought to minimize the seriousness of his position that he knew could attract a very heavy penalty. The evidence of the events which took place in Florida is consistent only with this view.
He continued, after referring with approval to the words of Stark J. in R. v. Rosen[5], at p. 569, where that judge expressed the view that consents of this nature given upon the advice of counsel were not vitiated by motives of self-interest and said:
I think the passage quoted was apt and the view expressed correct. The consent anticipated by the statute is a real consent. It is not consent exhorted by coercion but rather free from coercion given by a party with knowledge of the circumstances and appreciation of his position. Only such a consent could have been contemplated by Parliament to exempt the wilful interception of private communications from the criminal offence created by s. 178. Only such a consent could have been contemplated by Parliament as a condition of admissibility in evidence of the interception of the private communication. The onus is on the Crown to prove consent beyond a reasonable doubt as a condition precedent to admissibility.
[Page 1005]
I see no reason on this evidence to doubt the judgment of the learned trial judge and to hold that what was co-operation as a result of promises of leniency became co-operation as a result of coercion following Dwyer’s efforts to deceive the police in Toronto. His attempt failed. They told him so and no doubt were angered by his conduct but that is not coercion. Significantly, his purpose did not change and so he co-operated. He consented. He agreed to dupe his alleged confederate into a discussion so that the police could listen in and record what was said. That was enough.
He considered the consent valid and effective.
I am in agreement with this disposition of the issue of consent. The consent given under s. 178.11(2)(a) must be voluntary in the sense that it is free from coercion. It must be made knowingly in that the consentor must be aware of what he is doing and aware of the significance of his act and the use which the police may be able to make of the consent. The test to be applied in considering the admissibility of a statement or confession made by an accused person in custody to police officers or others in a position of authority is not applicable here. The word “voluntary” in the sense in which it applies to a consent to intercept or to admit evidence under Part IV.1 of the Criminal Code should not be considered in the restricted sense of the rule in the Ibrahim[6] case. A consent under s. 178.11(2)(a) is a valid and effective consent if it is the conscious act of the consentor doing what he intends to do for reasons which he considers sufficient. If the consent he gives is the one he intended to give and if he gives it as a result of his own decision and not under external coercion the fact that his motives for so doing are selfish and even reprehensible by certain standards will not vitiate it. In my opinion, on the evidence adduced in this case, the consent was a valid consent and was legally effective for its intended purpose, that is, the procuring of admissible evidence for use in Goldman’s trial.
[Page 1006]
The word coercion requires some definition in this context. The consent must not be procured by intimidating conduct or by force or threats of force by the police, but coercion in the sense in which the word applies here does not arise merely because the consent is given because of promised or expected leniency or immunity from prosecution. Inducements of this nature or compulsion resulting from threats of prosecution would render inadmissible a confession or statement made by an accused person to those in authority because the confession or statement could be affected or influenced by the inducement or compulsion. Different considerations arise, however, where a consent of the kind under consideration here is involved. I refer to Rosen v. The Queen[7] where the question was considered and where I said for the Court:
In such a case, very different considerations apply. The consenter is consenting to the use in evidence of tapes or other recordings which have been previously recorded and which he cannot change. He is not agreeing to make a statement which he could invent nor to give evidence in futuro which he could colour in the hope of reward or benefit. The nature of the evidence which will be admitted as a result of his consent is already fixed and determined and cannot be affected by the circumstances of the consent.
The final point taken by the appellant was that the trial judge and the Court of Appeal erred in admitting the signed consent of Dwyer into evidence because it contravened the hearsay rule—Dwyer not having been called at trial to give evidence. Brooke J.A. for the Court of Appeal saw no merit upon this point and disposed of it with these words
But he also gave his consent in writing. His consent was an issue of fact in these proceedings and could be proved like any other fact in issue. I think the evidence of P.C. Sayers and others was admissible to prove the fact that Dwyer had consented and that he signed the consent above set out. That evidence was not hearsay as is contended by Mr. Levy.
[Page 1007]
While I am inclined to agree with that statement, I do not consider it necessary to deal with the point. It will be observed that the consent referred to in s. 178.11(2)(a) may be express or implied. As I understand the argument of Crown counsel, he did not place his case upon a specific consent under the section. His argument was that there was an implied consent which would suffice to render the intercepts admissible. On all the evidence, it seems clear to me that the Crown discharged the onus upon it and raised on the evidence a clear implication of consent.
In summary then, it is my opinion that while the provisions of Part IV.1 apply to the conversations between Dwyer and Goldman for the reasons given earlier, the effect of s. 178.16(1)(a) is to deprive the appellant of any protection in the circumstances of this case. I would dismiss the appeal.
Appeal dismissed, LASKIN C.J. dissenting.
Solicitor for the appellant: Earl J. Levy, Toronto.
Solicitors for the respondent: The Attorney General for Ontario, Toronto.