Rosen v. R., [1980] 1 SCR 961

Supreme Court of Canada

Rosen v. R., [1980]  1 S.C.R. 961

Date: 1979-12-21

Sydney Rosen (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1979: February 7; 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 defraud the public—Evidence—Unauthorized wiretap—Admissibility—Ex post facto consent—Criminal Code, ss. 178.11(2)(a), 178.16(1), 338(1), 423(1)(d).

Evidence—Wiretap—Unauthorized interception—Ex post facto consent—Criminal Code, ss. 178.11(2)(a), 178.16(1), 338(1), 423(1)(d).

Appellant, with others, was charged with conspiracy to defraud the public of money or valuable securities through a deceitful distribution of the shares of Somed Mines Limited contrary to s. 423(1)(d) and s. 338(1) of the Criminal Code. The Crown tendered wiretap evidence of private conversations between appellant and three other conspirators, B., S. and L., who had originally been co-accused. The Crown relied on the express consents of these three individuals to render the evidence admissible under s. 178.16(1)(b) of the Code. No attempt was made to prove that the wiretaps were judicially authorized. The consents had been obtained only four days prior to appellant’s trial and long after the interceptions had been made. Subsequent to giving their consent, B., S. and L. pleaded guilty to the charge of conspiracy to defraud. Each was fined and placed on probation. It was a term of the probation order that they be available for appellant’s trial. All three gave evidence but each testified under cross-examination that the fear of jail was the governing factor in his decision to consent to the admission of the wiretap evidence. The trial judge ruled that the consents rendered the evidence admissible and appellant was convicted. His appeal to the Ontario Court of Appeal was dismissed without written or recorded reasons. On further appeal, appellant raised three points: first, that a consent under s. 178.16(1)(b) must, to be effective, be obtained prior to the interception; second, that evidence of interceptions not lawfully made and rendered admissible only by a consent or consents under s. 178.16(1)(b) could be admissible only against a consenter and third, that any consent must be

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freely given and not induced by any promise or threat by the Crown.

Held (Laskin C.J. dissenting): The appeal should be dismissed.

Per Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and Mclntyre JJ.: While a consent to admission in evidence under s. 178.11(2)(a) must precede the interception, the consent under s. 178.16(1)(b) serves a different purpose, namely, to permit the use in evidence of an interception unlawfully made, i.e. without consent. In the case of s. 178.16(1)(b), the consent therefore can be procured after the interception and up to the time that the evidence is tendered.

The second point raised has not previously been dealt with in this Court but was dealt with, and correctly so, in R. v. Demeter (1975), 19 C.C.C. (2d) 321 (Ont. H.C.), which rejected the proposition that the evidence could be received only against the consenter. As there stated, the words of s. 178.16 are unambiguous. It is not appropriate to introduce unnecessary words into the section which are not required to clarify any ambiguity.

Finally, while the consent must be given voluntarily, in the sense of not being the result of cærcion, and must be the conscious act of the consenter, the consent will not be vitiated because the motives for it may be selfish or even reprehensible. The requirements governing the admission of confessions do not apply to the consents here, under s. 178.16(1)(b) where the consenter is consenting to the use of tapes or other recordings which have been previously recorded and which he cannot change. This is very different from agreeing to make a statement which could be invented or to giving evidence in futuro which could be coloured in the hope of reward or benefit.

Per Laskin C.J., dissenting: A common law rule that has long prevailed in Canada is that evidence relevant to the issues in a criminal matter is admissible even if illegally obtained. The issue here, however, is the admissibility of evidence of illegally intercepted private conversations in the face of a statutory code for the protection of privacy. The majority of this Court have here held that s. 178.16(1)(b) of the Code must be taken to embrace ex post facto consent where the interception was originally unlawful, since s. 178.16(1)(a) removes the exclusion where the interception was originally lawful, thus applying the rule of construction that

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redundancy is not generally to be countenanced when assessing parts of a statute or of a single section, and that the various words must be given subject matter. On the assumption that the words “lawfully made” in s. 178.16(1)(a) cover both judicial authorization and prior consent to an interception (an assumption challenged in the dissent in Goldman v. The Queen, [1980] 1 S.C.R. 976), it is difficult to escape the conclusion that to give subject matter to s. 178.16(1)(b) it must be taken to envisage ex post facto consents. Whether such a consent makes the illegally intercepted evidence admissible against anyone other than the consenter is more questionable. The case should nonetheless be disposed of by ordering a new trial on another ground, namely, the inducement to give the ex post facto consent by a promise of leniency which excluded imprisonment and which was redeemed. Such a situation is indistinguishable from the rule in confession cases even though here the conversation is already at hand and is not itself induced. There is no difference in principle between a promise of benefit to obtain an inculpatory statement and a promise of benefit to make the fruits of an illegal interception admissible by extracting a consent on the faith of the promise. Indeed the situation here is more compelling for the rule which should be applied because this is a case of saving one’s own skin at the expense of another who is powerless, if a different rule is adopted, to maintain the privacy of what he believed to be a private conversation.

[R. v. Demeter (1975), 19 C.C.C. (2d) 321 (Ont. H.C.) applied; Goldman v. The Queen, [1980] 1 S.C.R. 976; Boudreau v. The King, [1949] S.C.R. 262; Attorney General of Quebec v. Begin, [1955] S.C.R. 593; In re Validity of s. 92(4) of The Vehicles Act 1957 (Sask.), [1958] S.C.R. 608; R. v. Dass, [1978] 3 W.W.R. 762, aff’d on another point [1979] 4 W.W.R. 97, further leave to appeal refused; Walker v. The King, [1939] S.C.R. 214, referred to.]

APPEAL from a judgment of the Court of Appeal for Ontario dismissing without written or recorded reasons an appeal from a conviction, based on the evidence of illegally intercepted conversations, for conspiracy to defraud through a deceitful distribution of shares. Appeal dismissed, Laskin C.J. dissenting.

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C.R. Thomson, Q.C., and R.G. MacKenzie, for the appellant.

Douglas C. Hunt, for the respondent.

The following are the reasons delivered by

THE CHIEF JUSTICE (dissenting)—A common law rule that has long prevailed in this country is that evidence which is relevant to the issues in a criminal trial is admissible although obtained illegally as by the commission of an offence. The rule has prevailed under the majority decision of this Court in R. v. Wray[1] against the attempted exercise of discretion by a trial judge to exclude evidence obtained by very disreputable means. It has prevailed, under the majority decision of this Court in Hogan v. The Queen[2], against the imperatives of the Canadian Bill of Rights. What is in issue here is the admissibility of evidence of illegally intercepted private conversations in the face of a statutory code for the protection of privacy. The common law rule is said to have been embedded in a statutory provision under which the illegally obtained evidence becomes admissible against an accused upon the ex post facto consent of others who are, moreover, moved to give their consent by a Crown promise of benefit, that being not to be imprisoned upon a plea of guilty to a conspiracy to defraud with which they were charged along with the accused. In the present case, the promise was kept when these co-accused, dealt with separately, were fined and put on probation, one of the terms being that they testify at accused’s trial. This they did.

It is unfortunate that the conviction of the accused after trial by jury, based on the evidence of the illegally intercepted conversations, was affirmed by the Ontario Court of Appeal without written or recorded reasons. The present case is the first to reach this Court on the facts which I have recited. It raises for me some fundamental questions referable to the construction and application of the statutory language in which privacy is dealt with under the Criminal Code, and referable also to the need for clearer or more precise drafting of provisions which now appear,

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under the reasons of Mclntyre J. endorsed by the other members of the Court, to have given carte blanche to the prosecution not only to ignore illegality in the interception of private conversations (since the likelihood of prosecution is remote), but also to cure inadmissibility by promises of benefit to parties to the conversations if they would consent to their use against an accused with whom the conversations were carried on.

The provisions of the Criminal Code respecting protection of privacy start with s. 178.1 and are headed “Invasion of Privacy: Interception of Communications”. For present purposes I need only refer to the relevant provisions of ss. 178.11 and 178.16 as they were at the material time. They are as follows:

178.11 (1) Every one who, by means of electro-magnetic, 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;

…

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.

It is the fact that no previous consent, as is stipulated by s. 178.11(2)(a), was obtained for the interceptions in this case nor was any evidence adduced to show that judicial authorization was

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previously sought as envisaged by s. 178.11(2)(b). The submission of the Crown, accepted below and by Mclntyre J., is that the exclusion declared by the opening words of s. 178.16(1) is removed in this case under s. 178.16(1)(b) which must be taken to embrace ex post facto consent where the interception was originally unlawful since s. 178.16(1)(a) removes the exclusion where the interception was originally lawful. The rule of construction that is applied is that redundancy is not generally to be countenanced when assessing parts of a statute or of a single section, and the various words must be given subject matter.

On the assumption that the words “lawfully made” in s. 178.16(1)(a) cover both judicial authorization and prior consent to an interception (an assumption which I challenge in my reasons in Goldman v. The Queen[3], issued concurrently with those in this case) it is difficult to escape the conclusion that to give subject matter to s. 178.16(1)(b) it must be taken to envisage ex post facto consents. It is to me more questionable, however, whether such a consent makes the evidence of the illegally intercepted conversation admissible against anyone other than the person consenting. It is one thing to immunize a person from liability under s. 178.11(2)(a) where he has the prior consent to intercept either from the originator or intended recipient of the communication or conversation. It is a different thing, a more serious departure from the policy to give protection to private communications, to permit A. to make an illegally intercepted communication between him and B. admissible against the latter by A.’s ex post facto consent.

Nonetheless, I would dispose of this case by ordering a new trial on another ground, namely, the inducement to give ex post facto consent by a promise of leniency which excluded imprisonment and which was redeemed. I cannot distinguish such a situation from the rule in confession cases even though here the intercepted conversation is

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already at hand and is not itself induced by a previous promise of benefit or threat or advantage. I do not think there is any difference in principle between a promise of benefit to obtain an inculpatory statement and a promise of benefit to make the fruits of an illegal interception admissible by extracting a consent on the faith of the promise. The situation here is more compelling for the rule I would apply because this is not a case of inculpating oneself but of saving one’s own skin at the expense of another who is powerless, if a different rule is adopted, to insist on any right to maintain the privacy of what he believed to be a private conversation.

In my opinion, the issue of voluntariness of a consent to an interception or to the admissibility in evidence of an intercepted communication bears a relation to the issue of voluntariness as it arises in confession cases. It is true that in the statements of the rationale of voluntariness in the confession cases emphasis was laid on the trustworthiness of the inculpatory statement in the light of the inducement to make it: see Boudreau v. The King[4], at p. 269. The likelihood of falsity as the ground of exclusion is also seen in this Court’s judgment in Attorney General for Quebec v. Begin[5]. However, the law has advanced beyond this (although trustworthiness remains a factor), as is evident from the Chadbourn revision of 1970 of 3 Wigmore on Evidence (1970), s. 822, at pp. 329-336. The original edition of Wigmore had emphasized trustworthiness alone and it found favour in Canadian courts, but even there other factors were appreciated such as (to use the words of Rand J. In re Validity of Section 92(4) of The Vehicles Act 1957 (Sask.)[6], at p. 619, referring to Wigmore and to the analogous rule against self-incrimination) “inevitable abuse and the concomitant moral deterioration in methods of obtaining evidence and in the general administration of justice in criminal matters”. See also Dixon C.J. in

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McDermott v. The King[7], at p. 513. Certainly, if trustworthiness was alone relevant, then in the present case there could be no doubt that the confession rule would be irrelevant on the issue of voluntariness when the interception had been made (albeit illegally) before consent to admission in evidence was obtained by the promise of benefit.

The advance of other rationales than truth or falsity in the American cases, e.g. the control of illegal police methods in the inducement of a confession, owes much to the due process clause of the United States constitution: see Rogers v. Richmond[8], at p. 540; Jackson v. Denno[9], at p. 385. They suggest a similar adaptation of the due process clause of the Canadian Bill of Rights, but I do not see the need here to rest entirely on this because I hold the view that where, as here, we are dealing with statutory procedures, unfairness or impropriety in effecting an interception or in making an intercepted communication admissible in evidence is as relevant a rationale as reliability of the evidence.

I do not regard it as necessary that a person who acts at the behest of the public or prosecution, on a promise of benefit to him, be shown to be one in authority when he originates a private communication to be intercepted by the police or consents ex post facto to the admission in evidence of an illegally intercepted communication with the accused. In this respect, I would not apply the confession rules to the present case. What does concern me is that the accused is made an innocent pawn in the loss of his expectation of privacy. I am of the opinion that the statutory policy of protection of privacy demands, in view of the vulnerability of an accused’s position at the hands of a confederate, pressed into police service, that a strict view be taken of the voluntary character of

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the confederate’s conduct in destroying an accused’s expectation of privacy.

There are American cases which take a different view, namely, that a mere promise of leniency is not enough to vitiate consent to an interception unless there has been undue pressure to procure it: see United States v. Silva[10], at p. 146; United States v. Baker[11], at p. 503; United States v. Osser[12], at p. 730. These were cases relating to prior consent to arrange for an interception and not like the situation here which concerns ex post facto consent. However, the principle, if adopted, is as applicable to the one situation as to the other. Whether on the facts here there can be said to have been overbearing pressure is doubtful, especially in light of the fact that the consentors gave evidence at the trial. Nonetheless, I adhere to the stricter view which would exclude the evidence of the intercepted communication because of the initiative of the police in obtaining the consents, especially at a time when the consentors were as much under charge as the accused.

I agree with what was said by Hamilton J. of the Manitoba Queen’s Bench in R. v. Dass[13] that the onus is on the Crown to prove that the consent was voluntary and that, as Duff C.J.C. indicated in Walker v. The King[14], this means that there is an absence of fear of prejudice or hope of advantage held out by persons in authority. This was not met in the present case. The Dass case went to the Manitoba Court of Appeal on another point: see [1979] 4 W.W.R. 97 and leave to appeal here was refused on December 13, 1979.

I would, accordingly, allow the appeal, set aside the conviction and order a new trial.

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The judgment of Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and Mclntyre JJ. was delivered by

MCINTYRE J.—The appellant, along with eight other persons, was charged with conspiracy to defraud the public of money or valuable securities through a deceitful distribution of the shares of Somed Mines Limited contrary to s. 423(1)(d) and s. 338(1) of the Criminal Code. At his trial before judge and jury, the Crown tendered wiretap evidence of private conversations between the appellant and three other conspirators who had originally been co-accused, namely, Bader, Smith and Lindzon. The Crown relied on the express consents of these three individuals to render this evidence admissible under s. 178.16(1)(b) of the Criminal Code. No attempt was made to prove that the wiretaps were judicially authorized.

The consents in question had been obtained from Smith, Bader and Lindzon on March 4 and 5, 1976, only four days before the commencement of the appellant’s trial on March 8 and long after the interceptions had been made. The three co-accused attended at R.C.M.P. Headquarters in Toronto in order to hear tape recordings of interceptions of telephone conversations made from July to September of 1974. Before hearing the tapes, each man, acting upon counsel’s advice, signed a consent to the use in evidence of any intercepted conversation in which he had participated. Prior to this date, they had been supplied with transcripts of the conversations. On March 5, the three attended in Provincial Court and each pleaded guilty to the charge of conspiring to defraud the public. Each was fined and placed on probation. It was a term of the probation order that they be available to testify at the appellant’s trial. They did appear at the trial and in giving evidence each reaffirmed his consent under oath in his evidence on the voir dire to determine the admissibility of the interceptions. Each testified under cross-examination that the fear of going to jail was the governing factor in his decision to consent to the admission of the wiretap evidence, and each agreed that he would not have so consented in the absence of an understanding with

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counsel for the Crown that imprisonment would not be sought upon his conviction.

The trial judge ruled that the consents rendered the wiretap evidence admissible and the appellant was convicted. An appeal to the Ontario Court of Appeal was dismissed without written or recorded reasons. Both parties agreed that if the wiretap evidence had not been admitted, it would be impossible to say with any degree of certainty whether a jury would have convicted or acquitted the appellant. This agreement was reached to suggest that the proper relief in the event of a successful appeal would be a new trial.

In the hearing before us the appellant raised three points. He contended that a consent under s. 178.16(1)(b) must, in order to be effective, be obtained prior to the interception; that evidence of interceptions not lawfully made and rendered admissible only by a consent or consents under s. 178.16(1)(b) could be admissible against a consenter only and not other parties; that any consent must be freely given and not induced by any promise or threat by the Crown.

I now turn to the first point taken by the appellant that the consent referred to in s. 178.16(1)(b) must be obtained by the Crown before the interception is made. Section 178.11 of the Code deals with the electronic interception of private communications and the parts relevant to this point are set out hereunder:

178.11 (1) Every one who, by means of 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

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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;

Section 178.16, as it then read, deals with the admissibility of evidence obtained by electronic interception of private communications and the relevant parts are set out 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 lawful communication or the person intended by the originator thereof to receive it has expressly consented to the admission thereof.

In my opinion, this argument is based upon a failure to distinguish between the consent to intercept referred to in s. 178.11(2)(a) and the consent to admit in evidence under s. 178.16(1)(b). The consent to intercept under s. 178.11(2)(a), if it is to be effective to render an interception lawful, must plainly precede the interception. When it has been given and the interception completed, it has performed its role. No further consent is needed for the admission in evidence because the interception has been lawfully made: see judgment in Goldman v. The Queen[15] delivered concurrently herewith. The consent to admission in evidence under s. 178.16(1)(b) serves a fundamentally different purpose. It is to permit the use in evidence of an interception made without authorization or consent and hence unlawfully made and otherwise inadmissible. It can be procured at any time after the interception and up to the time the evidence is tendered at trial.

The second point taken by the appellant raised the following questions. Assuming a valid consent to the introduction of evidence by the originator of the communication or by the intended receiver, against whom may the evidence be received? In the case at bar, we have three persons who had been either originators or recipients of private

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communications which were relevant to the issues in the case involving themselves and the appellant. In return for their cooperation with the Crown, which included the giving of consents to the admission of the evidence, they received lenient treatment upon their pleas of guilty and were thus removed from the proceedings. The appellant argued that ordinary justice and sound legal principle required that evidence made admissible by consent in this manner should be admitted only against the consenter or consenters and not against other parties to the private communications. In the circumstances of this case, acceptance of this proposition would exclude the evidence entirely. To permit the evidence to be introduced against a non‑consenter, it was said, would make the admissibility of evidence against an accused dependent not upon the application of rules of law but upon the whim of a co-accused or, as here, a person no longer a party to the proceedings. To admit evidence against one party upon the consent of another in this manner would deprive an accused of a protection the law has given him against the use of evidence at his trial obtained by unlawful interception.

This question has not been dealt with in this Court and there is little reported authority upon the point. We were referred to the case of R. v. Demeter[16] at p. 330, where Grant J. dealt with a similar submission and rejected the argument that the evidence could be received only against the consenter. In my opinion, he dealt with the matter correctly. He pointed out that the words of s. 178.16 are unambiguous and it is not necessary, in order to give them effect, to read the section as if it included the word “respectively” after “originator thereof” or “the person intended to receive it” so that the section would read:

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, respectively, to receive it unless

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(a)…

(b) the originator of the private communication or the person intended by the originator thereof, respectively, to receive if has expressly consented to the admission thereof.

(The emphasis is my own.)

To do so would be to introduce unnecessary words into the section which are not required to clarify any ambiguity. It may be observed that the approach adopted by Grant J. in the Demeter case is the one largely adopted in American jurisdictions, admittedly upon a different statutory and constitutional base: see United States of America v. James Ryan, United States of America v. Adrian Wilson, United States of America v. Bernard Zeldin[17], United States Court of Appeals, Ninth Circuit; United States of America v. John Elbert Ransom et al.[18], United States Court of Appeals, Fifth Circuit; United States Court of America v. Frank John Bonanno[19], United States Court of Appeals, Second Circuit, and generally The Law of Electronic Surveillance, James G. Carr, with specific reference to p. 90, para. 3.05.

Finally, the appellant argued that any consent of the nature involved here must be a bona fide and freely given consent and not induced by promised benefits or compelled by threats. It was said that the consent should meet the same test of admissibility as that which applies to a statement made by an accused person to police officers after arrest. I cannot accept this conclusion. The consent must, in my opinion, be given voluntarily in the sense that it may not be the result of coercion. It must be the conscious act of the consenter freely performed for reasons of his own which appear to him to be sufficient. The consent will not be vitiated, however, because the motives for it may be selfish or even reprehensible. I am not persuaded by the argument that the requirements governing the admission of confessions by accused persons should apply where the validity of a consent under s. 178.16(1)(b) of the Criminal Code is examined. In such a case, very different considerations apply.

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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: see Goldman v. The Queen, supra. I would dismiss the appeal.

I observe, in conclusion, that I feel compelled to reach this result by the plain terms of the statute. I have sympathy for the contention that Parliament, in enacting provisions for the protection of a right to privacy, should not be taken to have intended this result, allowing, as it does, the unilateral destruction of any such right by one party to a protected conversation. The parliamentary intention, however, must be found in the words Parliament employed. In my view, they are intractable.

Appeal dismissed, LASKIN C.J. dissenting.

Solicitors for the appellant: Campbell, Godfrey and Lewtas, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.