Lloyd et al. v. The Queen, [1981] 2 SCR 645

Supreme Court of Canada

Lloyd et al. v. The Queen, [1981] 2 S.C.R. 645

Date: 1981-12-17

Brian Lloyd and Debra Lloyd Appellants;

and

Her Majesty The Queen Respondent.

1981: May 25; 1981: December 17.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Evidence—Admissibility—Privilege—Husband and wife—Private communications between husband and wife intercepted by authorized wire tap—Whether intercepted conversations between husband and wife admissible—Criminal Code, R.S.C. 1970, c. C-34, ss. 178.12(1), 178.16(5), 618(1)(a)—Canada Evidence Act, R.S.C. 1970, c. E-10, s. 4.

Appellants, a married couple, were convicted of a criminal offence, along with two other persons. At trial, authorized interceptions of private telephone conversations by the four accused, including conversations between the husband and wife, were admitted following a ruling in a voir dire. The Court of Appeal dismissed appellants’ appeals from these convictions. The issue considered by this Court was whether Debra Lloyd’s intercepted conversations with her husband should have been excluded because of the conjoint effect of s. 178.16(5) of the Criminal Code and s. 4(3) of the Canada Evidence Act. A second issue, dealing with the right to appeal to this Court arose, did not require determination.

Held (Martland, McIntyre and Lamer JJ. dissenting): The appeal should be allowed with respect to Debra Lloyd but dismissed with respect to Brian Lloyd.

Per Laskin C.J. and Dickson, Estey and Chouinard JJ.: Debra Lloyd’s intercepted conversations with her husband should have been excluded because of the conjoint effect of s. 178.16(5) of the Criminal Code and s. 4(3) of the Canada Evidence Act. The equally authoritative French version of s. 178.16(5), and especially the words exemption de communication, clarified the proper construction to be given the English version. There is a privilege both in a spouse’s choice to divulge or to refuse to divulge information conveyed by the

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other spouse, and in the information conveyed.

Per Ritchie J.: The issues raised did not materially differ from those in R. v. Jean and Piesinger and considering the importance of continuity in the development of the law, the appeal should be disposed of as proposed by Laskin C.J.

Per Beetz J.: Beetz J. concurred with the conclusions of Laskin C.J.

Per Martland, McIntyre and Lamer JJ., dissenting: The privilege created by s. 4(3) is against compulsory disclosure of marital communications. It is a testimonial privilege giving a right to withhold evidence, but the information itself is not privileged. The recipient may disclose the information irrespective of the wishes of, or the interest of, the spouse. Section 178.16(5) consequently could have no application here because no information which “but for the interception would have been privileged” was involved.

[R. v. Jean and Piesinger, [1980] 1 S.C.R. 400, affirming (1979), 7 C.R. (3d) 338 (Alta. C.A.), considered]

APPEAL from a judgment of the British Columbia Court of Appeal[1] dismissing an appeal from conviction. Appeal in respect of Debra Lloyd allowed, and appeal in respect of Brian Lloyd dismissed, Martland, McIntyre and Lamer JJ. dissenting.

K.G. Young and A.H. Silverman, for the appellants.

Mark M. DeWeerdt, Q.C., and S. David Frankel, for the respondent.

The judgment of Laskin C.J. and Dickson, Estey and Chouinard JJ. was delivered by

THE CHIEF JUSTICE—The appellants, husband and wife, were indicted along with two others on a charge of conspiracy to traffic in a narcotic. Pursuant to an authorization granted by Hutcheon J.

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under Criminal Code, s. 178.12(1), private telephone conversations among the four accused, including telephone conversations between the spouses, were intercepted by the police and were sought to be adduced in evidence at their trial. The presiding judge, Harding Co.Ct.J., held a voir dire on the admissibility of the intercepted conversations, concluded as a result thereof that they were admissible and subsequently convicted all the accused.

The appellants herein appealed their convictions, and their appeals were dismissed by a majority of the British Columbia Court of Appeal (Hinkson and Aikins JJ.A.), Lambert J.A. dissenting. The case is here based on the latter’s dissent.

Two points were taken by the appellants in the British Columbia Court of Appeal. They contended, first, that the admissibility of the intercepted private conversations depended upon a proper authorization, that an authorization which allowed interception of conversations by or with a person not named in the authorization although his identity was known at the time the authorization was granted, would not be a proper one and, second, that it should be open to the trial Judge to inquire into this (and presumably other matters going to the validity of the authorization) in considering the admissibility of the intercepted conversations. Hinkson J.A., who delivered the majority judgment of the British Columbia Court of Appeal took the view that although the trial Judge had held a voir dire, it was not for him to look behind the authorization; rather, he was required to accept it at face value. Lambert J.A., in the course of his dissenting reasons, accepted the trial Judge’s finding of credibility on the voir dire, but concluded that certain interceptions of conversations between the female appellant Debra Lloyd and persons other than her husband were not lawfully made. It was his view that, as a matter of mixed fact and law, Debra Lloyd’s identity was known in a relevant way when the challenged authorization was granted and, since she was not named, the particular conversations to which she was a party should not have been admitted.

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Two issues arose in connection with this matter at the hearing before this Court. First, the right to appeal to this Court. An appeal to this Court based on a dissent below must under Criminal Code, s. 618(1)(a), be on a question of law alone, and that is not this case. Counsel for the appellants urged, however, that there was another question of law involved, namely whether a trial Judge was entitled or required to permit examination and cross-examination on the validity of the authorization, that is, on whether it was issued under the affidavit and other conditions governing the granting thereof under the Criminal Code. Since in this case a voir dire had in fact been held, the question raised by counsel does not arise for decision and this Court concluded that it was better to leave this issue to be determined in a case where a decision thereon was required. Accordingly, counsel for the respondent Crown was not called upon to answer the first ground of appeal.

The second ground raised, and based properly on a question of law in Lambert J.A.’s dissent, was whether Debra Lloyd’s intercepted conversations with her husband should have been excluded because of the conjoint effect of Criminal Code, s. 178.16(5) and s. 4(3) of the Canada Evidence Act, R.S.C. 1970, c. E-10. These provisions read as follows:

178.16 …

(5) 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.

4. …

(3) No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage.

In holding that there was no privilege calling for protection under s. 178.16(5), Hinkson J.A. refused to follow the judgment of the Alberta Appel-

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late Division in R. v. Jean and Piesinger[2]. It was, however, followed by Lambert J.A. In the Jean and Piesinger case, Moir J.A., speaking for the Alberta Appellate Division dealt with the question of the admissibility of intercepted communications between husband and wife, as follows: (at p. 352)

I have already set out the relevant portion of s. 178.16(1) and (5). Under subs. (1), as long as the interception was lawful it would be admissible against either the originator or receiver of it. However, the question arises as to the effect of subs. (5) when the conversation is between husband and wife and intended by both of them that they alone should hear it.

So far as I am aware, the only conversations to which subs. (5) could apply are between solicitor and client and husband and wife. The subsection speaks of information that would have been privileged but for the interception. It seems to me that there was no information that was ever privileged per se, because if the solicitor and client or husband and wife were overheard there was no privilege. What really occurred was that a witness was able to decide whether or not the contents of certain communications were to be revealed. In a solicitor-and-client relationship the client could determine whether or not he would permit the conversation between himself and his lawyer to be revealed. The recipient of the conversation between spouses could decide if he would reveal the communication. In both cases, if the party who had the right chose to exercise it the communication could be said to be privileged.

In my opinion, we must make the same sort of deductions to make sense of subs. (5) of s. 178.16 of the Code. Parliament must be taken to have legislated sensibly, and thus we must give subs. (5) a sensible meaning. To do so, it must be taken to mean that the so-called “privileged information” is that information that a person has a right not to reveal. Then, if it is intercepted by a wiretap or by other means dealt with in Pt. IV. 1 of the Criminal Code, it is inadmissible by reason of subs. (5) of s. 178.16. This follows from the philosophy of the “Invasion of Privacy” legislation, which proceeds on the basis that these two types of information are private and that if they are disclosed by a lawful intercept the information cannot be revealed in court.

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Here, the wife had a right not to reveal what was said to her by her spouse during marriage. The conversation was overheard on a lawful interception. What was heard cannot be revealed where the wife does not choose to reveal it. The conversation was, in my respectful opinion, properly excluded by the learned trial judge on a proper interpretation of s. 178.16.

An appeal was taken by the Crown from the judgment of the Alberta Appellate Division and it was dismissed in short oral reasons delivered at the conclusion of the appellant Crown’s argument. Those reasons were as follows, as reported in [1980] 1 S.C.R. 400:

We do not need to hear you Mr. Stevens-Guille. We are not satisfied that we should reverse the judgment of the Alberta Appellate Division or interfere with the rulings and conclusions of the trial judge. The appeal is, accordingly, dismissed.

An examination of the materials filed on the appeal shows that the admissibility of conversations between the spouses, intercepted pursuant to a lawful authorization, was directly in issue. My notes of the course of argument were to the effect that counsel for the respondents was told at the conclusion of the Crown’s argument that we did not need to hear him on the question of the admissibility of the intercepted conversations because the matter was plainly covered by s. 178.16(5) of the Criminal Code and s. 4(3) of the Canada Evidence Act.

I should note that the British Columbia Court of Appeal did not have the advantage of the judgment of this Court in the Jean and Piesinger case when it delivered judgment in the case now before us. Its judgment was handed down on February 4, 1980; this Court spoke on the issue herein on March 19, 1980. The position taken by Hinkson J.A. on the effect of s. 178.16(5) does not differ from what was urged upon this Court in the Jean and Piesinger appeal. He said in his reasons that while there may be a privilege in a spouse to choose what course to follow, that is to divulge or refuse to divulge the information conveyed, that does not make the information privileged. In his words, “it is a privilege attaching to a witness, not to the information”.

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In my view, even apart from the effect of this Court’s recent decision in the Jean and Piesinger case, the learned Justice of Appeal has taken too narrow a view of the conjoint effect of s. 178.16(5) and s. 4(3). The equally authoritative French version of s. 178.16(5) adds illumination to the proper approach to or construction of the English version. The French version reads as follows:

178.16 …

(5) Tout renseignement obtenu par une interception et pour lequel, si ce n’était l’interception, il y aurait eu exemption de communication, demeure couvert par cette exemption et n’est pas admissible en preuve sans le consentement de la personne jouissant de l’exemption.

I emphasize the words exemption de communication.

It was conceded by the Crown and agreed by counsel for the appellants that if the appeal should succeed on the issue of admissibility of the intercepted conversations between the spouses, Debra Lloyd alone should be acquitted.

The result is therefore, that the appeal should be allowed in respect of Debra Lloyd, the judgment of the Courts below affecting her should be set aside and an acquittal entered. The appeal of Brian Lloyd must be dismissed.

The following are the reasons of

RITCHIE J.—I have had the advantage of reading the reasons for judgment prepared for delivery by the Chief Justice in this appeal and like him I cannot find that the issues here raised differ so materially from those before the Court in March 1980 in the R. v. Jean and Piesinger[3] appeal as to warrant our departing from what was decided in that case.

The importance of continuity in the development of the law is the overwhelming consideration which persuades me to agree that this appeal should be disposed of in the manner proposed by the Chief Justice.

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The following are the reasons of

BEETZ J.—I agree with the conclusions of the Chief Justice.

The reasons of Martland, McIntyre and Lamer JJ. were delivered by

MCINTYRE J. (dissenting)—I have had the benefit of reading the reasons for judgment prepared by the Chief Justice. He has set out the facts and described the issues which were raised in this appeal. As he has said, the Court did not call upon counsel for the respondent Crown on the first point concerning the right of the trial judge to permit examination and cross examination on the validity of the authorization, and accordingly I will confine my comments to the second point which raised the issue of privilege for the communications which passed between husband and wife and which were intercepted by the police. The statutory provisions with which we are concerned are set out below:

THE CRIMINAL CODE

178.16 …

(5) 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.

CANADA EVIDENCE ACT

4. (1) Every person charged with an offence, and, except as otherwise provided in this section, the wife or husband, as the case may be, of the person so charged, is a competent witness for the defence, whether the person so charged is charged solely or jointly with any other person.

(2) The wife or husband of a person charged with an offence against section 33 or 34 of the Juvenile Delinquents Act or with an offence against any of sections 143 to 146, 148, 150 to 155, 157, 166 to 169, 175, 195, 197, 200, 248 to 250, 255 to 258, 289, paragraph 423(1)(c) or an attempt to commit an offence under section 146 or 155 of the Criminal Code, is a competent and compellable witness for the prosecution without the consent of the person charged.

(3) No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage.

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(4) Nothing in this section affects a case where the wife or husband of a person charged with an offence may at common law be called as a witness without the consent of that person.

(5) The failure of the person charged, or of the wife or husband of such person, to testify, shall not be made the subject of comment by the judge, or by counsel for the prosecution.

The appellants argue that the intent of s. 178.16(5) of the Criminal Code is to preserve privileges which have been established in the law of evidence. They then say that s. 4(3) of the Canada Evidence Act creates a privilege for communications between husband and wife made and received during the marriage. The effect of s. 178.16(5) of the Code is to preserve the privilege, notwithstanding the interception, so that the content of the communications may not be used in evidence against the spouses. The respondent argues that no privilege attaches to the communications by virtue of s. 4(3) of the Canada Evidence Act which creates only an evidentiary or testimonial privilege appertaining to the spouses and that, as a result, s. 178.16(5) of the Code does not apply to the communications in question.

This latter view was substantially accepted by Hinkson J.A. for the majority of the Court of Appeal, who said:

In my view, it is not possible to equate the privilege attaching to a communication between solicitor and client with the privilege attaching to the spouse who is the recipient of a matrimonial communication. In the former case it is the information passing from client to solicitor, or vice versa, that is privileged. In the latter case the information conveyed is not privileged; the recipient spouse has a right to divulge or refuse to divulge the information conveyed. This right to choose what course to follow may be called a privilege but that does not make the information privileged in respect of which the right to choose is exercised. In short, it is a privilege attaching to a witness, not to the information. That distinction, it seems to me, is pointed up by the specific wording of ss. (5).

And after discussing the solicitor and client privilege he added:

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No privilege is conferred on a spouse who makes a matrimonial communication. When a husband speaks to a wife, the information conveyed by the husband to the wife is not privileged. Rather the wife has the right to refuse to disclose it. She cannot be compelled to do so, although she may do so if she is properly called as a competent witness.

At common law as a general rule the wife or husband of an accused was incompetent to give evidence for the prosecution except in cases where an offence had been committed against the person or liberty of the marriage partner: see Halsbury, Laws of England, (4th ed.) vol. 11, para. 470 (at p. 282). Statutory intervention has altered the situation in many jurisdictions. In Canada questions of competency, compellability and privilege with respect to the evidence of husband and wife where one is charged with a crime are covered in s. 4 of the Canada Evidence Act referred to above. Subsection (1) makes both husband and wife competent as witnesses for the defence. Subsection (2) renders the husband and the wife both competent and compellable for the prosecution with respect to the offences enumerated in the subsection. This subsection standing alone would remove any marital privilege for either spouse as far as the enumerated offences are concerned, but by the provisions of subsection (3) a marital privilege is created which provides that neither spouse is compellable to disclose any communications made by the other party during marriage. Subsection (4) preserves any pre-existing common law right to call a spouse as a witness where the other spouse is charged with an offence, and subsection (5) prohibits comment by the trial judge or counsel for the prosecution on the failure of an accused or a spouse to give evidence.

The privilege created by s. 4(3) is against compulsory disclosure of marital communications. The spouse, to whom the communication has been made, however, while he or she may not be compelled to disclose it, is of course free to do so if he or she wishes. It is evident then that the privilege, the right to elect whether the communication will

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be disclosed or not, is personal to the recipient spouse, and it is equally evident from the wording of s. 4 that the privilege is one pertaining to a spouse giving evidence in Court. In other words, it is a testimonial privilege giving a right to withhold evidence, but it cannot be said that the information itself is privileged. It follows then, in my view, that s. 178.16(5) cannot have any application here, because no information which “but for the interception would have been privileged” is involved.

The section could have application to a communication between solicitor and client where the solicitor may not disclose it and, in fact, will not be permitted by the Court to do so. It is of the nature of any privilege that it may be waived by the person enjoying it. In the case of the solicitor and client privilege it is the client alone who may do so. Until he does he retains control of the information and thereby maintains a privilege in it. It is in this sense that it may be said a privilege attaches to the information. In the case of s. 4(3) of the Canada Evidence Act, however, the communicator has no control over the disclosure of the information and, therefore, no privilege in it. The recipient may disclose the information irrespective of the wishes of, or interest of, the spouse.

It will be seen that, in my view, for the reasons above stated, no privilege such as that mentioned in s. 178.16(5) of the Criminal Code attached to the communications between husband and wife in this case and the section has no application. I would dismiss the appeal.

The Chief Justice has referred in his reasons for judgment to the judgment of the Appellate Division of the Supreme Court of Alberta in R. v. Jean and Piesinger[4]. I am in agreement with him that

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the same point, which has been discussed here, came before us in that appeal. I am aware that I have arrived at a conclusion directly opposite to that of the Alberta court expressed in the Piesinger case. I also recognize that in dealing with that appeal in this Court ([1980] 1 S.C.R. 400) we expressed the view that we were not satisfied that we should reverse the judgment of the Alberta Appellate Division and we dismissed the appeal. I do not consider it would be helpful to indulge in discussion as to whether or not this Court may be said to have approved the Alberta decision in Piesinger, but I must say that I would not consider it unreasonable if counsel and the courts thought that we had done so. I will merely add that upon the facts and argument presented in this case, and on more lengthy reflection, it is my opinion that the Piesinger case in this Court should not be followed.

Appeal in respect of Debra Lloyd allowed, and appeal in respect of Brian Lloyd dismissed, MARTLAND, MCINTYRE and LAMER JJ. dissenting.

Solicitors for the appellants: Raibman, Young, Campbell and Goulet, Vancouver.

Solicitor for the respondent: The Attorney General of British Columbia, Vancouver.