R. v. Duarte, [1990] 1 SCR 30

R. v. Duarte, [1990] 1 S.C.R. 30

 

Mario Duarte                             Appellant

 

v.

 

Her Majesty The Queen    Respondent

 

and

 

The Attorney General for Ontario and

the Attorney General of Quebec                                                                                     Interveners

 

indexed as:  r. v. duarte

 

File No.:  20542.

 

1989:  October 4, 5; 1990:  January 25.

 

Present:  Dickson C.J and Lamer, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and McLachlin JJ.

 

on appeal from the court of appeal for ontario

 

    Constitutional law ‑‑ Charter of Rights  ‑‑ Unreasonable search and seizure ‑‑ Evidence obtained by electronic surveillance conducted without authorization ‑‑ Conversation recorded with consent of a party to it ‑‑ Recording of conversation entered into evidence ‑‑ Whether s. 178.11(2)(a) infringed Charter  right to freedom from unreasonable search and seizure ‑‑ If so, whether or not it was justified by s. 1  of the Charter  ‑‑ Whether unauthorized interception by police, even if not a criminal offence, would violate s. 8  of the Charter  ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 178.11(1), (2)(a), 178.16(1)(a), (b) ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 8 .

 

    Constitutional law ‑‑ Charter of Rights  ‑‑ Evidence -- Admissibility  -- Evidence obtained as result of breach of Charter  inadmissible if administration of justice would be brought into disrepute ‑‑ Evidence obtained as result of unintentional Charter  breach ‑‑ Whether or not admission of evidence would bring administration of justice into disrepute ‑‑  Canadian Charter of Rights and Freedoms, s. 24(2) .

 

    Evidence ‑‑ Admissibility ‑‑ Evidence obtained by electronic surveillance conducted without authorization ‑‑ Conversation recorded with consent of a party to it ‑‑ Recording of conversation entered into evidence ‑‑ Whether s. 178.11(2)(a) infringed Charter  right to freedom from unreasonable search and seizure ‑‑ If so, whether or not it was justified by s. 1  of the Charter  ‑‑ Whether unauthorized interception by police, even if not a criminal offence, would violate s. 8  of the Charter  ‑‑ Whether or not admission of evidence, if obtained in breach of Charter , would bring administration of justice into disrepute.

 

    Criminal Law ‑‑ Electronic surveillance ‑‑ Evidence obtained by electronic surveillance conducted without authorization ‑‑ Conversation recorded with consent of a party to it ‑‑ Recording of conversation entered into evidence ‑‑ Whether s. 178.11(2)(a) infringed Charter  right to freedom from unreasonable search and seizure ‑‑ If so, whether or not it was justified by s. 1  of the Charter  ‑‑ Whether unauthorized interception by police, even if not a criminal offence, would violate s. 8  of the Charter .

 

    As part of an investigation into drug trafficking, the police rented an apartment for a police informer who was working with an undercover police officer.  The apartment was equipped with audio‑visual recording equipment installed in a wall.  Prior to the installation of the equipment, the informer and the undercover officer consented to the interception of their conversations, pursuant to the provisions of s. 178.11(2)(a) of the Criminal Code .  Appellant discussed a cocaine transaction with the undercover officer and the informer at the apartment.  The undercover officer made notes of these and a subsequent conversation based upon a review of the tapes of the conversations.

 

    The appellant was later charged with conspiracy to import a narcotic.  At trial, he challenged, on a voir dire, the validity of s. 178.11(2)(a) of the Code which excepts the interception of conversations to which one of the parties consents from the prohibition of unauthorized electronic surveillance.  The trial judge held that the actions of the authorities infringed the appellant's rights to be secure from unreasonable search and seizure under s. 8  of the Charter  and that the evidence thereby obtained was held not admissible.  The Crown appealed to the Ontario Court of Appeal which unanimously allowed the appeal, set aside the acquittal and ordered a new trial.

 

    The constitutional questions stated in this Court queried whether s. 178.11(2)(a) of the Criminal Code  infringed or denied the rights and freedoms guaranteed by s. 8  of the Canadian Charter of Rights and Freedoms , and if so, whether or not it was justified by s. 1  of the Charter .  During argument, the position was advanced that the constitutionality of s. 178.11(2)(a) might not really arise in that this provision was really an exception to the criminal prohibition against the interception of private communications set forth in s. 178.11(1).  Action contemplated by that exception could not be made criminal by a Charter  attack on its validity.  The real question, then, became whether, even though such action may not constitute a criminal offence, it would nonetheless, when undertaken by an instrumentality of the state, such as the police, violate s. 8  of the Charter .  Finally, if this action was indeed an unjustifiable infringement of a Charter  right, were communications intercepted as a result of this practice admissible under s. 24(2)  of the Charter ?

 

    Held:  The appeal should be dismissed.  Section 178.11(2)(a) of the Criminal Code , does not infringe or deny the rights and freedoms guaranteed by s. 8  of the Charter , but the interception of private communications by an instrumentality of the state with the consent of the originator or intended recipient thereof, without prior judicial authorization, does infringe the rights and freedoms guaranteed by s. 8.  It was not necessary to answer the second question.

 

    Per Dickson C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and McLachlin JJ.:  Surreptitious electronic surveillance of the individual by an agency of the state constitutes an unreasonable search or seizure under s. 8  of the Charter .

 

    The regulation of electronic surveillance is not directed at protecting a person from the risk that someone will repeat his words but from the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit his words.  If the state were free, at its sole discretion, to make permanent electronic recordings of a person's private communications, there would be no meaningful residuum to the right to live free from surveillance.  A reasonable balance must therefore be struck between the right of individuals to be left alone and the right of the state to intrude on privacy in the furtherance of its responsibilities for law enforcement.

 

    Part IV.1 of the Code strikes an appropriate balance.  It meets the high standard of the Charter  which guarantees the right to be secure against unreasonable search and seizure by subjecting the power of the state to record private communications to external restraint and requiring that action to be justified by application of an objective criterion.  The imposition of an external and objective criterion affords a measure of protection to any citizen whose private communications have been intercepted.

 

    Privacy may be defined as the right of the individual to determine when, how, and to what extent he or she will release personal information.  A reasonable expectation of privacy demands that an individual may proceed on the assumption that the state may only violate this right by recording private communications on a clandestine basis when it has established to the satisfaction of a detached judicial officer that an offence has been or is being committed and that interception of private communications stands to afford evidence of the offence.

 

    The assessment of the constitutionality of a search and seizure must focus on its `reasonable' or `unreasonable' impact on the subject of the search or the seizure, and not simply on its rationality in furthering some valid government objective.  Applying this standard, if the surreptitious recording of private communications is a search and seizure within the meaning of s. 8  of the Charter , it is because the law recognizes that a person's privacy is intruded on in an unreasonable manner whenever the state, without a prior showing of reasonable cause before a neutral judicial officer, arrogates to itself the right surreptitiously to record communications that the originator expects will not be intercepted by anyone other than the person intended by its originator to receive them.

 

    By contrast to the general provisions on electronic surveillance, the Code places no restriction on participant surveillance, i.e., where one of the parties to the conversation consents.  The police may employ this practice in their absolute discretion, against whom they wish and for whatever reasons they wish, without any limit as to place or duration.  There is a total absence of prior judicial supervision of this practice.

 

    There is no logical distinction between third party electronic surveillance and participant surveillance.  Where persons have reasonable grounds to believe their communications are private communications, the unauthorized surreptitious electronic recording of those communications is an intrusion on a reasonable expectation of privacy.  Our perception that we are protected against arbitrary interceptions of private communications ceases to have any real basis once it is accepted that the state is free to record private communications, without constraint, provided only that it has secured the agreement of one of the parties to the communication.  The risk of being recorded is not simply a variant of the risk of having one's words disclosed by the person to whom we speak.  Surreptitious electronic recording annihilates the very important right to choose the range of our listeners.

 

    Whether or not to allow participant surveillance is a policy decision fraught with the gravest of implications.  Countenancing participant surveillance, strikes not only at the expectations of privacy of criminals but also undermines the expectations of privacy of all those who set store on the right to live in reasonable security and freedom from surveillance, be it electronic or otherwise.  It has long been recognized that this freedom not to be compelled to share our confidences with others is the very hallmark of a free society.  The sole effect of requiring a warrant would be to ensure that police restrict "participant monitoring" to cases where they can show probable cause for a warrant.  It would not hamper their ability to combat crime effectively.

 

    Participant surveillance infringes s. 8  of the Charter .  It leaves all the conditions under which conversations are intercepted to the sole discretion of the police and therefore cannot be held to meet the definition of "reasonable" in the context of s. 8  of the Charter .  Its large‑scale use by police could by‑pass any judicial consideration of the entire police procedures and make the entire scheme in Part IV.1 of the Code largely irrelevant.  Indeed, the constitutionality of Part IV.1 of the Code is predicated on the numerous safeguards designed to prevent the possibility that the police view recourse to electronic surveillance as a routine administrative matter.

 

    The simple fact that the police could employ the same investigatory tool with or without a warrant destroys any argument that participant surveillance can be upheld as a reasonable limit to the right to be secure from unreasonable search and seizure.

 

    Section 178.16(1) of the Code makes certain types of evidence inadmissible.  It does not make a communication admissible.  If it is admissible, it is by virtue of the common law.  The communication would be admissible as relevant evidence at common law, but since it was obtained contrary to s. 8, it will not, by virtue of s. 24(2)  of the Charter , be admissible if to do so would bring the administration of justice into disrepute.  Many factors can be considered in determining if the administration of justice will be brought into disrepute.  Of cardinal importance in assessing these factors is the fairness of the process, and in particular, its impact on the fairness of the trial.

 

    The breach here infringed an important Charter  right and the evidence could have been obtained without breaching the Charter .  It was, however, in no way deliberate and it stemmed from an entirely reasonable misunderstanding of the law by the police officers who would otherwise have obtained the necessary evidence to convict the accused in any event.  The admission of this evidence would not bring the administration of the law into disrepute.

 

    Per Lamer J.:  The appeal should be dismissed for the reasons of the Ontario Court of Appeal.  It was consequently unnecessary to address the issue of whether the evidence should be excluded under s. 24(2)  of the Canadian Charter of Rights and Freedoms .

 

Cases Cited

 

By La Forest J.

 

    Considered:  United States v. White, 401 U.S. 745 (1971); Lopez v. United States, 373 U.S. 427 (1963); R. v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48, leave to appeal refused, [1986] 1 S.C.R. ix; State v. Glass, 583 P.2d 872 (Alaska 1978); Holmes v. Burr, 486 F.2d 55 (1973); Commonwealth v. Schaeffer, 536 A.2d 354 (Penn. 1987); referred to:  Katz v. United States, 389 U.S. 347 (1967); R. v. Wong (1987), 34 C.C.C. (3d) 51; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Dyment, [1988] 2 S.C.R. 417; Commonwealth v. Thorpe, 424 N.E.2d 250 (Mass. 1981); Millar v. Taylor (1769), 4 Burr. 2303, 98 E.R. 201; R. v. Playford (1987), 40 C.C.C. (3d) 142; R. v. Collins, [1987] 1 S.C.R. 265.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms , ss. 1 , 8 , 24(2) .

 

Criminal Code, R.S.C. 1970, c. C‑34, ss. 178.1, 178.11(1), (2)(a), 178.12(1),  178.13(1), (2)(e), 178.16(1)(a), (b), 178.22(1), 178.23(1).

 

Authors Cited

 

Canada.  Law Reform Commission.  Working Paper 47.  Electronic Surveillance.  Ottawa:  Law Reform Commission, 1986.

 

Carr, James G.  The Law of Electronic Surveillance.  New York:  Clark  Boardman, 1977.

 

    APPEAL from a judgment of the Ontario Court of Appeal sub nom. R. v. Sanelli (1987), 61 O.R. (2d) 385, 38 C.C.C. (3d) 1, 60 C.R. (3d) 142, 33 C.R.R. 360, allowing an appeal from a judgment of Trotter J.  Appeal dismissed.  Section 178.11(2)(a) of the Criminal Code , does not infringe or deny the rights and freedoms guaranteed by s. 8  of the Charter , but the interception of private communications by an instrumentality of the state with the consent of the originator or intended recipient thereof, without prior judicial authorization, does infringe the rights and freedoms guaranteed by s. 8.  It was not necessary to answer the second question.

 

    Alan D. Gold, for the appellant.

 

    R. W. Hubbard, for the respondent.

 

    Jeff Casey, for the intervener the Attorney General for Ontario.

 

    Jean‑François Dionne, for the intervener the Attorney General of Quebec.

 

//La Forest J.//

 

    The judgment of Dickson C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier and McLachlin JJ. was delivered by

 

    LA FOREST J. -- This appeal is concerned with the protection accorded by s. 8  of the Canadian Charter of Rights and Freedoms  against electronic recording of the conversations of individuals with the police and informers in the absence of judicial authorization.

 

Facts

 

    As part of an investigation into drug trafficking, the Ontario Provincial Police and the Metropolitan Toronto Police rented an apartment in Mississauga which was to be occupied by a police informer who was working with an undercover police officer.  The apartment was equipped with audio-visual recording equipment installed in a wall.  Prior to the installation of the equipment, the informer and the undercover officer consented to the interception of their conversations, pursuant to the provisions of s. 178.11(2)(a) of the Criminal Code, R.S.C. 1970, c. C-34.  As a result of the operation, the undercover officer met a man named Paul Vidotto.  Some days after the meeting, Vidotto, the appellant Mario Duarte, and two others attended at the apartment and discussed a cocaine transaction with the undercover officer and the informer.  The undercover officer made notes of these and a subsequent conversation which he acknowledged were based upon a review of the tapes of the conversations.

 

    The appellant was later charged with the offence of conspiracy to import a narcotic.  At trial, he challenged, on a voir dire, the validity of s. 178.11(2)(a) of the Code which excepts from the prohibition of unauthorized electronic surveillance, the interception of conversations to which one of the parties consents.  The trial judge, Trotter J., held that the actions of the authorities infringed the appellant's rights to be secure from unreasonable search and seizure under s. 8  of the Charter  and that the evidence thereby obtained was held not admissible.

 

    The Crown appealed to the Ontario Court of Appeal which unanimously allowed the appeal, set aside the acquittal and ordered a new trial.  In reasons that I shall review later, Cory J.A. (as he then was) following American authorities dealing with the Fourth Amendment to the American Constitution, concluded that the interception of private conversations without a warrant but with the consent of one of the participants does not violate s. 8  of the Charter  ((1987), 61 O.R. (2d) 385).

 

    Notice of Appeal was then filed in this Court and the following constitutional questions were stated:

 

1.Does section 178.11(2)(a) of the Criminal Code , legalizing the interception of private communications with the consent of the originator or intended recipient thereof, without the need for judicial authorization, infringe or deny the rights and freedoms guaranteed by s. 8  of the Canadian Charter of Rights and Freedoms ?

 

2.If section 178.11(2)(a) of the Criminal Code  does infringe or deny the rights and freedoms guaranteed by s. 8  of the Canadian Charter of Rights and Freedoms , is it justified by s. 1  of the Charter  and therefore not inconsistent with the Constitution Act, 1982 ?

 

The Attorneys General for Ontario and Quebec intervened to support the constitutionality of s. 178.11(2)(a).

 

    During the argument, counsel for the appellant, however, advanced the position that the constitutionality of s. 178.11(2)(a) might not really arise.  That provision, he noted, was really an exception to the criminal prohibition against the interception of private communications set forth in s. 178.11(1), an exception applicable both to the police and members of the public.  Action contemplated by that exception could not be made criminal by a Charter  attack on its validity.  The real question, then, becomes whether, even though such action may not constitute a criminal offence, it would nonetheless, when undertaken by an instrumentality of the state, such as the police, violate s. 8  of the Charter .  In my view, that is the correct approach to the matter and I shall deal with it on this basis.

 

The Issues

 

    The principal issue in this appeal is whether the commonly styled "consent" or "participant" surveillance ‑- i.e., electronic surveillance in which one of the parties to a conversation, usually an undercover police officer or a police informer, surreptitiously records it ‑- infringes the right under s. 8  of the Charter  to be secure against unreasonable search and seizure.  This raises the subsidiary issues of whether such infringement is justifiable under s. 1  of the Charter  and whether the recorded conversation can nonetheless be admitted into evidence against an accused.  I should at the outset note that "consent surveillance" is an unhappy term to describe a practice where only one party to a conversation has agreed to have it recorded.  As put by the United States Supreme Court in Katz v. United States, 389 U.S. 347 (1967), at p. 358:  "the very nature of electronic surveillance precludes its use pursuant to the suspect's consent."  I shall, therefore, use the term "participant surveillance".

 

    The importance of the issues can hardly be gainsaid.  Carr, The Law of Electronic Surveillance, points out, at pp. 3-61, that in the United States this mode of surveillance is without question "the most widely used and most frequently practiced [sic] mode of eavesdropping".  Though I have found no data on the relative frequency of this practice in Canada, the cases would indicate that it is also widespread here.  The extensive use of electronic surveillance in this country is documented.  The Law Reform Commission of Canada's working paper on Electronic Surveillance reports at p. 10 that on a relative basis, Canadian law enforcement authorities request twenty times more authorizations to conduct electronic surveillance than their American counterparts.

 

    Canada, in common with the United States, has taken important steps to ensure judicial supervision of electronic surveillance by Part IV.1 of the Criminal Code .  Section 178.11(1) makes it an offence to engage in this activity.  It reads:

 

    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.

 

Under Part IV.1, the police generally may only conduct electronic surveillance once in possession of an authorization issued by a superior court judge and are bound to conduct such surveillance in strict accordance with the terms and conditions of the authorization.  By contrast, participant surveillance is left entirely to the discretion of the police.  Section 178.11(2)(a) of the Code provides the following exception to s. 178.11(1):

 

    178.11  ...

 

    (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;

 

The police are thus free to make the decision to conduct this type of surveillance on whom they wish, where they wish, and for as long as they wish (in the present case, for example, the operation lasted some two years).

 

The Risk Analysis of the Court of Appeal

 

    In upholding the legality of participant surveillance, the Court of Appeal relied heavily on American authorities, citing several decisions of that country's Supreme Court, notably United States v. White, 401 U.S. 745 (1971), a plurality decision which has been interpreted as giving that court's imprimatur to the practice, though the specific legislative provisions authorizing it were not directly placed in issue; see Carr, op. cit., at pp. 3-62.  Cory J.A., at p. 390, accurately summarized the logic of those decisions as resting on the notion that "the consent to the interception by the recipient may be looked upon as no more than an extension of the powers of recollection of the recipient of the communication".  In essence, the starting point for the analysis is the proposition that the person who divulges any confidence always runs the risk that his interlocutor will betray the confidence.  As Cory J.A. put it, at p. 393:  "The expression of the idea and the assumption of the risk of disclosure are therefore concomitant."

 

    The argument is then developed by pointing out that disclosures of this nature have always been admissible in a court of law.  It is but a small step to the conclusion that constitutional expectations of privacy would therefore not operate to prohibit the interception of conversations which one of the participants is surreptitiously recording.  As Cory J.A. put it, at pp. 393-94:

 

    Given that it is accepted that the informant may testify in this manner as to pertinent conversations, the admission of electronic recordings of those conversations would seem to be a reasonable, logical and sequential step in trial proceedings.  In this regard, the accurate transcript of the conversation should so often benefit the accused as the informant.

 

    The same point, but with an added twist, was made by the Supreme Court of the United States in the following passage in Lopez v. United States, 373 U.S. 427 (1963), at pp. 438-39:

 

    Once it is plain that Davis could properly testify about his conversation with Lopez, the constitutional claim relating to the recording of that conversation emerges in proper perspective.

 

                                                                           ...

 

    Stripped to its essentials, petitioner's argument amounts to saying that he has a constitutional right to rely on possible flaws in the agent's memory, or to challenge the agent's credibility without being beset by corroborating evidence that is not susceptible of impeachment.  For no other argument can justify excluding an accurate version of a conversation that the agent could testify to from memory.  We think the risk that petitioner took in offering a bribe to Davis fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording.  [Emphasis added.]

 

    The decision in Lopez v. United States proceeds on the basis that participant surveillance is inherently less offensive than third party surveillance because the agent of the state hears nothing that his interlocutor did not intend him to hear.  As the court there put it, at p. 439:

 

... the device was used only to obtain the most reliable evidence possible of a conversation in which the Government's own agent was a participant and which that agent was fully entitled to disclose.  And the device was not planted by means of an unlawful physical invasion of petitioner's premises under circumstances which would violate the Fourth Amendment.  It was carried in and out by an agent who was there with petitioner's assent, and it neither saw nor heard more than the agent himself.

 

    Thus, for the Court of Appeal, inasmuch as the police are subjected to no warrant requirement in their use of informers or in their efforts to insinuate themselves into the confidence of a suspect, the use of electronic surveillance, as an adjunct to that process, is of no constitutional significance.  In other words, if there has been a violation of privacy on the part of the state, it is complete when the confidence of the person under suspicion is gained.  The Charter cannot purport to protect us if we don't know how to choose our "friends".

 

    In summary, the risk analysis that is at the heart of the Court of Appeal's judgment rejects the notion that any distinction grounded on constitutional concerns should be drawn between evidence gained through the testimony of a participant to a conversation, and evidence gained through a surreptitious electronic recording of that conversation.  A person who has voluntarily chosen to confide his wrongdoing to another, and who, by happenstance, has had the misfortune (from his perspective) of doing so in the presence of a microphone, should not be able to invoke the Charter  to prevent divulgation of the confidence in a court of law.  Incriminating statements and confessions of wrongdoing are not per se constitutionally protected communications; provided the accused spoke of his own free will, there is no constitutional significance to be accorded the manner in which the evidence was gained.  In effect, the court chose to treat the risk that an interlocutor will divulge one's words and the risk that he will make a permanent electronic record of them at the behest of the state as being of the same order of magnitude.

 

    This argument is not without weight:  the fact that it counts among its adherents the Supreme Court of the United States and many state appellate courts testifies to that.

 

The Opposing Approach

 

    With respect, it seems to me, the Court of Appeal failed to deal with the true issue raised in this appeal.  The real question, as I see it, is whether our constitutional right to be secure against unreasonable search and seizure should be seen as imposing on the police the obligation to seek prior judicial authorization before engaging in participant surveillance, or whether the police should be entirely free to determine whether circumstances justify recourse to participant surveillance and, having so determined, be allowed an unlimited discretion in defining the scope and duration of participant surveillance.  This Court is accordingly called on to decide whether the risk of warrantless surveillance may be imposed on all members of society at the sole discretion of the police.

 

    I begin by stating what seems to me to be obvious:  that, as a general proposition, surreptitious electronic surveillance of the individual by an agency of the state constitutes an unreasonable search or seizure under s. 8  of the Charter .  The Ontario Court of Appeal has so held on at least two occasions; R. v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48, at p. 61 (leave to appeal refused, [1986] 1 S.C.R. ix); R. v. Wong (1987), 34 C.C.C. (3d) 51, at p. 58.  Accordingly, the Crown conceded this point in the courts below and did not seriously press the matter here.  The Attorney General for Ontario, for its part, assumed though it did not concede the point, and the Attorney General of Quebec did not deal with it at all.

 

    It should come as no surprise that these parties shied away from engaging in such an unequal contest.  Hunter v. Southam Inc., [1984] 2 S.C.R. 145, instructs us that the primary value served by s. 8 is privacy, and, as I noted in R. v. Dyment, [1988] 2 S.C.R. 417, at p. 426, the spirit of s. 8 must not be constrained by narrow legalistic classifications.  If one is to give s. 8 the purposive meaning attributed to it by Hunter v. Southam Inc., one can scarcely imagine a state activity more dangerous to individual privacy than electronic surveillance and to which, in consequence, the protection accorded by s. 8 should be more directly aimed, an issue I shall more fully develop as I go along.

 

    Not surprisingly, then, the Crown sought to focus more sharply on participant surveillance and to draw a distinction between it and other types of electronic surveillance.  If that endeavour is to succeed, however, one must proceed on the assumption that the factors that support the imposition of a requirement for an authorization in the third party interception (i.e., non-participatory surveillance) of private communications hold no currency where participant surveillance is concerned.  This proposition takes one back to the rationale for the regulation of electronic surveillance generally, and I shall now deal with it at greater length.

 

    The rationale for regulating the power of the state to record communications that their originator expects will not be intercepted by anyone other than the person intended by the originator to receive it (see definition section of Part IV.1 of the Code) has nothing to do with protecting individuals from the threat that their interlocutors will divulge communications that are meant to be private.  No set of laws could immunize us from that risk.  Rather, the regulation of electronic surveillance protects us from a risk of a different order, i.e., not the risk that someone will repeat our words but the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit our words.

 

    The reason for this protection is the realization that if the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance.  The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private.  A society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning.  As Douglas J., dissenting in United States v. White, supra, put it, at p. 756:  "Electronic surveillance is the greatest leveler of human privacy ever known."  If the state may arbitrarily record and transmit our private communications, it is no longer possible to strike an appropriate balance between the right of the individual to be left alone and the right of the state to intrude on privacy in the furtherance of its goals, notably the need to investigate and combat crime.

 

    This is not to deny that it is of vital importance that law enforcement agencies be able to employ electronic surveillance in their investigation of crime.  Electronic surveillance plays an indispensable role in the detection of sophisticated criminal enterprises.  Its utility in the investigation of drug related crimes, for example, has been proven time and again.  But, for the reasons I have touched on, it is unacceptable in a free society that the agencies of the state be free to use this technology at their sole discretion.  The threat this would pose to privacy is wholly unacceptable.

 

    It thus becomes necessary to strike a reasonable balance between the right of individuals to be left alone and the right of the state to intrude on privacy in the furtherance of its responsibilities for law enforcement.  Parliament has attempted to do this by enacting Part IV.1 of the Code.  An examination of Part IV.1 reveals that Parliament has sought to reconcile these competing interests by providing that the police must always seek prior judicial authorization before using electronic surveillance.  Only a superior court judge can authorize electronic surveillance, and the legislative scheme sets a high standard for obtaining these authorizations.  A judge must be satisfied that other investigative methods would fail, or have little likelihood of success, and that the granting of the authorization is in the best interest of the administration of justice.  I share the approach of Martin J.A. in R. v. Finlay and Grellette, supra, at pp. 70 et seq., that this latter prerequisite imports as a minimum requirement that the issuing judge must be satisfied that there are reasonable and probable grounds to believe that an offence has been, or is being, committed and that the authorization sought will afford evidence of that offence.  It can, I think, be seen that the provisions and safeguards of Part IV.1 of the Code have been designed to prevent the agencies of the state from intercepting private communications on the basis of mere suspicion.

 

    In proceeding in this fashion, Parliament has, in my view, succeeded in striking an appropriate balance.  It meets the high standard of the Charter  which guarantees the right to be secure against unreasonable search and seizure by subjecting the power of the state to record our private communications to external restraint and requiring it to be justified by application of an objective criterion.  The reason this represents an acceptable balance is that the imposition of an external and objective criterion affords a measure of protection to any citizen whose private communications have been intercepted.  It becomes possible for the individual to call the state to account if he can establish that a given interception was not authorized in accordance with the requisite standard.  If privacy may be defined as the right of the individual to determine for himself when, how, and to what extent he will release personal information about himself, a reasonable expectation of privacy would seem to demand that an individual may proceed on the assumption that the state may only violate this right by recording private communications on a clandestine basis when it has established to the satisfaction of a detached judicial officer that an offence has been or is being committed and that interception of private communications stands to afford evidence of the offence.

 

    This, it seems to me, flows inexorably from the principles enunciated in Hunter v. Southam Inc., supra.  In that case, this Court (p. 157) made the important point that the "assessment of the constitutionality of a search and seizure ... must focus on its `reasonable' or `unreasonable' impact on the subject of the search or the seizure, and not simply on its rationality in furthering some valid government objective".  Applying this standard, it is fair to conclude that if the surreptitious recording of private communications is a search and seizure within the meaning of s. 8  of the Charter , it is because the law recognizes that a person's privacy is intruded on in an unreasonable manner whenever the state, without a prior showing of reasonable cause before a neutral judicial officer, arrogates to itself the right surreptitiously to record communications that the originator expects will not be intercepted by anyone other than the person intended by its originator to receive them, to use the language of the Code.

 

    By contrast to the general provisions on electronic surveillance, the Code places no restriction on participant surveillance.  The police may employ this practice in their absolute discretion, against whom they wish and for whatever reasons they wish, without any limit as to place or duration.  There is a total absence of prior judicial supervision of this practice.

 

    I am unable to see any logic to this distinction between third party electronic surveillance and participant surveillance.  The question whether unauthorized electronic surveillance of private communications violates a reasonable expectation of privacy cannot, in my view, turn on the location of the hidden microphone.  Whether the microphone is hidden in the wall or concealed on the body of a participant to the conversation, the assessment whether the surreptitious recording trenches on a reasonable expectation of privacy must turn on whether the person whose words were recorded spoke in circumstances in which it was reasonable for that person to expect that his or her words would only be heard by the persons he or she was addressing.  As I see it, where persons have reasonable grounds to believe their communications are private communications in the sense defined above, the unauthorized surreptitious electronic recording of those communications cannot fail to be perceived as an intrusion on a reasonable expectation of privacy.

 

    The Charter standard just described must, in my view, apply on a uniform basis.  To have any meaning, it must be taken to afford protection against the arbitrary recording of private communications every time we speak in the expectation that our words will only be heard by the person or persons to whom we direct our remarks.  Section 8  of the Charter  guarantees the right to be secure against unreasonable search or seizure.  Our perception that we are protected against arbitrary interceptions of private communications ceases to have any real basis once it is accepted that the state is free to record private communications, without constraint, provided only that it has secured the agreement of one of the parties to the communication.  Since we can never know if our listener is an informer, and since if he proves to be one, we are to be taken to be tacitly consenting to the risk that the state may be listening to and recording our conversations, we should be prepared to run this risk every time we speak.  I conclude that the risk analysis relied on by the Court of Appeal, when taken to its logical conclusion, must destroy all expectations of privacy.

 

    I am unable to see any similarity between the risk that someone will listen to one's words with the intention of repeating them and the risk involved when someone listens to them while simultaneously making a permanent electronic record of them.  These risks are of a different order of magnitude.  The one risk may, in the context of law enforcement, be viewed as a reasonable invasion of privacy, the other unreasonable.  They involve different risks to the individual and the body politic.  In other words, the law recognizes that we inherently have to bear the risk of the "tattletale" but draws the line at concluding that we must also bear, as the price of choosing to speak to another human being, the risk of having a permanent electronic recording made of our words.

 

    The risk analysis relied on by the Court of Appeal fails to take due account of this key fact that our right under s. 8  of the Charter  extends to a right to be free from unreasonable invasions of our right to privacy.  The Court of Appeal was correct in stating that the expression of an idea and the assumption of the risk of disclosure are concomitant.  However, it does not follow that, because in any conversation we run the risk that our interlocutor may in fact be bent on divulging our confidences, it is therefore constitutionally proper for the person to whom we speak to make a permanent electronic recording of that conversation.  The Charter, it is accepted, proscribes the surreptitious recording by third parties of our private communications on the basis of mere suspicion alone.  It would be strange indeed if, in the absence of a warrant requirement, instrumentalities of the state, through the medium of participant surveillance, were free to conduct just such random fishing expeditions in the hope of uncovering evidence of crime, or by the same token, to satisfy any curiosity they may have as to a person's views on any matter whatsoever.

 

    In summary, the question whether to regulate participant surveillance cannot logically be made to turn on the expectations of individuals as to whether their interlocutor will betray their confidence.  No justification for the arbitrary exercise of state power can be made to rest on the simple fact that persons often prove to be poor judges of whom to trust when divulging confidences or on the fact that the risk of divulgation is a given in the decision to speak to another human being.  On the other hand, the question whether we should countenance participant surveillance has everything to do with the need to strike a fair balance between the right of the state to intrude on the private lives of its citizens and the right of those citizens to be left alone.

 

    This is the manner in which the issue has been framed in the American appellate decisions that have rejected United States v. White, supra, in interpreting rights to privacy in state constitutions.  The reasoning in these decisions, in my respectful view, provides a complete answer to the view that the risk posed by the divulgation of the informer, and that posed by letting the agents of the state, at their whim, surreptitiously record private communications to which they are privy, are risks of the same order.  These decisions make an eloquent case in support of the proposition that unregulated participant surveillance cannot be reconciled with the right to be secure against unreasonable search and seizure.

 

State Appellate Decisions Rejecting United States v. White

 

    I turn first to a decision of the Supreme Court of Alaska in State v. Glass, 583 P.2d 872 (1978), in which the court, in interpreting that state's constitutional right to privacy, held that a person who engages in a private conversation is entitled to assume that his words will not be broadcast or recorded, absent his consent or the existence of a warrant.  In reaching his decision, Boochever C.J. quoted at length from the dissenting judgment of Hufstedler J. in Holmes v. Burr, 486 F.2d 55 (1973).  In the latter case, one Marburger had permitted his telephone conversation with Holmes to be recorded.  Hufstedler J., at pp. 71-72, makes the initial observation that it is aberrant to import the notion of risk in assessing the constitutionality of "participant" surveillance:

 

This doctrine, relied upon by the majority in the case at bench, is a hybrid of factual and fictitious elements and of individual and societal judgments.  If Holmes knew that his conversation might be electronically intercepted by the government, or if warrantless electronic monitoring were so pervasive that he is chargeable with such knowledge, a factual foundation would exist for invoking the venerable assumption of the risk doctrine.  However, if he did not know and if he had no reason to be aware of the risk, that doctrine is inapt.  To say that a person "assumes the risk" of electronic surveillance, although he was rightfully oblivious to the risk, is to mislabel a newly created rule of law limiting the scope of the Fourth Amendment.

 

    In a perceptive passage, Hufstedler J. goes on to point out, at p. 72, the fallacy of arguing that the risk of exposure by the "tattletale" and the risk of surreptitious recording are one and the same:

 

    Repetition of conversations thought to be confidential is a known risk.  However, the risk that one's trusted friend may be a gossip is of an entirely different order than a risk that the friend may be transmitting and recording every syllable.  The latter risk is not yet rooted in common American experience, and it should not be thrust upon us:  the differences between talking to a person enswathed in electronic equipment and one who is not are very real, and they cannot be reduced to insignificance by verbal legerdemain.  All of us discuss topics and use expressions with one person that we would not undertake with another and that we would never broadcast to a crowd.  Few of us would ever speak freely if we knew that all our words were being captured by machines for later release before an unknown and potentially hostile audience.  No one talks to a recorder as he talks to a person.  [Emphasis added.]

 

    The Superior Court of Pennsylvania in Commonwealth v. Schaeffer, 536 A.2d 354 (1987), has also held that warrantless electronic surveillance violates that state's constitutional right to be secure from unreasonable searches and seizures.  Cirillo J., who also takes direct aim at the assumption of risk doctrine, points out, at p. 365, that it destroys our right to fix the limits of publicity we choose to give our remarks.  He states:

 

A person committing his views "to the sight of his friends" knows he risks misjudging his friends, but he doesn't forfeit the right to determine in the first place to whom he will directly speak.  The body bug destroys that right of self-determination, and if people in society come to believe the practice is widespread and done without probable cause, they may begin to fall silent on many occasions when previously they would have felt free to speak, confident in the belief that they could challenge the credibility or memory of the trusted colleague who would betray them.

 

    In my view, the above remarks demonstrate the fallacy of the conclusion that the risk of being recorded is simply a variant of the risk of having one's words disclosed by the person to whom we speak.  Surreptitious electronic recording annihilates the very important right to determine to whom we speak, i.e., the right to choose the range of our auditors.  As pointed out by Cirillo J., at p. 365, in the case of participant surveillance, a speaker no longer has any choice whether to disclose his private thoughts to the government.  Rather, he is compelled to do so.  As he notes, at p. 365:

 

Every speaker knows and accepts as a "condition of human society" that his listener may go to the police, but he does not intend by speaking to give up the right to exclude the police from his home.  But if the police are simultaneously recording every word, they are already there, in the home, uninvited, contrary to every reasonable expectation that most people in society still have.

 

    Implicit in the arguments in support of "consent" surveillance, it seems to me, is the notion that a man has no one but himself to blame if he is confounded by his own words.  Thus, if someone is imprudent enough to reveal his wrongdoing, it makes no sense that the law discard that evidence just because the wrongdoer spoke into a microphone.  There is a serious flaw in this argument.  It rests on the assumption that the relevant inquiry is limited to the legitimate expectations of privacy of "criminals".  But, again, the real question raised by this appeal lies elsewhere.  As put by the Massachusetts Supreme Court in Commonwealth v. Thorpe, 424 N.E.2d 250 (1981), at p. 258:  "the relevant question is not whether criminals must bear the risk of warrantless surveillance, but whether it should be imposed on all members of society".

 

    In Commonwealth v. Schaeffer, supra, at p. 366, Cirillo J. concedes that there might be room for complacency were the sole effect of warrantless surveillance to compel criminals to engage in self-censorship.  But inasmuch as the very premise of a warrantless procedure is that the police can engage in the practice at their sole discretion, any sanguinity in this matter is misplaced.  Harlan J. in his dissent in United States v. White, supra, makes the point that the implications in allowing warrantless surveillance cannot be narrowly circumscribed.  He stated, at p. 789:

 

... it is too easy to forget ‑- and, hence, too often forgotten ‑- that the issue here is whether to interpose a search warrant procedure between law enforcement agencies engaging in electronic eavesdropping and the public generally.  By casting its "risk analysis" solely in terms of the expectations and risks that "wrongdoers" or "one contemplating illegal activities" ought to bear, the plurality opinion, I think, misses the mark entirely.  On Lee does not simply mandate that criminals must daily run the risk of unknown eavesdroppers prying into their private affairs; it subjects each and every law-abiding member of society to that risk.  [Emphasis added.]

 

    Harlan J. went on to make the seminal observation that the imposition of a warrant requirement would have the sole effect of ensuring that police restrict "participant monitoring" to cases where they can show probable cause for a warrant.  It is unclear to me how compelling the police to restrict this practice to instances where they have convinced a detached judicial officer of its necessity would hamper the police's ability effectively to combat crime.  But even if this were so, this restriction would be justified by the knowledge that the police would no longer have the right "to train these powerful eavesdropping devices on you, me, and other law-abiding citizens as well as the criminal element", to cite the observation of Cirillo J. in Commonwealth v. Schaeffer, supra, at p. 367.  The appellant put the matter trenchantly in his factum:

 

A warrant requirement simply ensures that when the undercover agent goes in with the potential to make a permanent, electronic record of the conversation that takes place, it will be one that should be recorded (a proposed drug sale), as opposed to one that should not (the suspect's sex life or his views of the government).

 

    In summary, I think, with respect, that Cory J.A. fails to give due weight to the policy implications of allowing the police to conduct warrantless surveillance when he states, at p. 394, that "it is only those whose conversations are concerned with various illegal activities who will be seriously concerned about the possibility of their remarks being recorded".  On the contrary, the decision whether to allow or disallow this practice is fraught with the gravest of implications.  To countenance this practice would not strike only at the expectations of privacy of criminals and those concerned with wrongdoing.  Rather, it would undermine the expectations of privacy of all those who set store on the right to live in reasonable security and freedom from surveillance, be it electronic or otherwise.  And it has long been recognized that this freedom not to be compelled to share our confidences with others is the very hallmark of a free society.  Yates J., in Millar v. Taylor (1769), 4 Burr. 2303, 98 E.R. 201, states, at p. 2379 and p. 242:

 

    It is certain every man has a right to keep his own sentiments, if he pleases:  he has certainly a right to judge whether he will make them public, or commit them only to the sight of his friends.

 

    If this Court is to give its imprimatur to the practice of warrantless electronic surveillance, the words of Harlan J., dissenting in United States v. White, supra, at pp. 787-89, may fairly be said to apply:

 

    Authority is hardly required to support the proposition that words would be measured a good deal more carefully and communication inhibited if one suspected his conversations were being transmitted and transcribed.  Were third-party bugging a prevalent practice, it might well smother that spontaneity ‑ reflected in frivolous, impetuous, sacrilegious, and defiant discourse ‑ that liberates daily life.  Much off-hand exchange is easily forgotten and one may count on the obscurity of his remarks, protected by the very fact of a limited audience, and the likelihood that the listener will either overlook or forget what is said, as well as the listener's inability to reformulate a conversation without having to contend with a documented record.  All these values are sacrificed by a rule of law that permits official monitoring of private discourse limited only by the need to locate a willing assistant.  [Emphasis added.]

 

The Undermining of Part IV.1 of the Code

 

    The appellant raises the additional point that dispensing the police from the requirement to seek a warrant for conducting participant surveillance effectively allows the police to do indirectly what Part IV.1 of the Code prohibits them from doing directly.  Faced with the choice of having to seek a warrant, and being able to proceed without one, it can reasonably be expected that they will, circumstances permitting, elect to proceed without one.

 

    Here, the police, acting without any judicial authorization, wired an apartment for a period of some two years, installed listening devices in another location, and employed an automobile location beeper.  In circumstances such as these, where the police have evidence of a conspiracy and have elicited the services of an informer, can there be any compelling reason to suggest that the interests of justice would not be better served by requiring the police to attend before a superior court judge to obtain an authorization as opposed to letting the police be the sole arbiters of the scope of the investigation and its duration?

 

    It is worth noting, in this regard, the basis for the conclusion of Martin J.A. in R. v. Finlay and Grellette, supra, that Part IV.1 of the Code is constitutional.  While he was ready to accept that the interception of private communications does constitute a search and seizure within the meaning of those terms as they are used in the Charter , he concluded that such searches and seizures, when authorized in accordance with the requirements of Part IV.1 of the Code, would ordinarily be reasonable precisely and solely because the provisions and safeguards of Part IV.1 preclude the police from embarking on fishing expeditions in the hope of uncovering evidence of crime.

 

    With regard to these safeguards it is worth remembering that Part IV.1 of the Code:

 

(a)stipulates that authorizations for electronic surveillance are only to be given on a showing that there is no real practical alternative (s. 178.13(1)); in other words, as put by the Ontario Court of Appeal in R. v. Playford (1987), 40 C.C.C. (3d) 142, at p. 185:  "... it is treated as a last resort investigative mechanism", and can only be obtained for investigation of the most serious offences in the Code (s. 178.1);

 

(b)sets strict time limits on authorizations (s. 178.13(2)(e));

 

(c)prescribes that a judge may include any conditions and restrictions that he considers advisable in the public interest;

 

(d)authorizes renewals only on a showing of cause and a detailing of all interceptions made prior to the request for the authorization and the number of previous authorizations;

 

(e)mandates that notification be given to the person whose communications have been intercepted (s. 178.23(1));

 

(f)requires the Solicitor General of Canada to prepare a comprehensive report on all electronic surveillance conducted pursuant to authorizations (s. 178.22(1));

 

(g)engages the responsibility of the Attorney General of the province in which the application is sought, or of the Solicitor General (or duly appointed agents) (s. 178.12(1)); and

 

(h)provides that authorizations may only issue on the order of a superior court judge (s. 178.12(1)).

 

    If the constitutionality of Part IV.1 of the Code is predicated on the numerous safeguards designed to prevent the possibility that the police view recourse to electronic surveillance as a humdrum and routine administrative matter, it would seem anomalous that participant surveillance, which leaves to the sole discretion of the police all the conditions under which conversations are intercepted, should be held to meet the definition of "reasonable" in the context of s. 8  of the Charter .  I think that the appellant makes a good point when he submits that the large-scale police investigative activity using participant surveillance for monitoring and recording private conversations effectively by-passes any judicial consideration of the entire police procedures and thereby makes irrelevant the entire scheme in Part IV.1 of the Code.

 

    As was put by Martin J.A. in R. v. Finlay and Grellette, supra, at p. 70:

 

Authorizing such a serious intrusion on the individual's reasonable expectation of privacy as the interception of his private communications on the basis of mere suspicion would not further the interests of the administration of justice, but would bring it into disrepute.

 

Section 1 Justification

 

    It is necessary to make only brief mention of possible justification under s. 1 of the police action in this case.  The question whether participant surveillance constitutes a reasonable limit on the right to be secure against unreasonable search or seizure takes one back to the point that the appellant is in no way arguing that the police should be denied the right to use informers or to intercept communications themselves once they have gained the confidence of a suspect.  The sole thrust of his argument is that judicial supervision of the practice should exist, just as it exists in the case of third party surveillance.  In a word, there is no justification for warrantless searches once it is accepted that the police could employ the same investigatory tool with or without a warrant.  This simple fact (and I find no argument by the respondent refuting the notion that the police could have attended before a judge to secure an authorization for participant surveillance) destroys, in my view, any argument that participant surveillance can be upheld as a reasonable limit to the right to be secure from unreasonable search and seizure.

 

    To conclude, the Charter  is not meant to protect us against a poor choice of friends.  If our "friend" turns out to be an informer, and we are convicted on the strength of his testimony, that may be unfortunate for us.  But the Charter  is meant to guarantee the right to be secure against unreasonable search and seizure.  A conversation with an informer does not amount to a search and seizure within the meaning of the Charter .  Surreptitious electronic interception and recording of a private communication does.  Such recording, moreover, should be viewed as a search and seizure in all circumstances save where all parties to the conversation have expressly consented to its being recorded.  Accordingly the constitutionality of "participant surveillance" should fall to be determined by application of the same standard as that employed in third party surveillance, i.e., by application of the standard of reasonableness enunciated in Hunter v. Southam Inc., supra.  By application of that standard, the warrantless participant surveillance engaged in by the police here was clearly unconstitutional.

 

Admissibility in Evidence

 

    The next question is whether the communication in this case may be admitted into evidence.  Section 178.16(1) of the Code deals with admissibility as follows:

    178.16 (1) A private communication that has been intercepted is inadmissible as evidence against the originator of the communication or the person intended by the originator to receive it unless

 

(a) the interception was lawfully made; or

 

(b) the originator thereof or the person intended by the originator to receive it has expressly consented to the admission thereof;

 

but evidence obtained directly or indirectly as a result of information acquired by interception of a private communication is not inadmissible by reason only that the private communication is itself inadmissible as evidence.

 

That provision, it should be noted, does not make a communication admissible.  If it is admissible, that is by virtue of the common law.  What the provision does is to make such communication inadmissible unless its interception was (a) lawfully made, or (b) made with the consent of one of the parties to the communication.  I shall deal with the second condition first.  That condition was clearly met.  Consent was given prior to the communication and however unreasonable reliance on such consent may have been for the purposes of Charter  review, the communication is not inadmissible under s. 178.16(1)(b).

 

    The first condition poses more difficulty.  Since the interception here was unreasonable within the meaning of s. 8  of the Charter , it might well be argued that it was not lawfully made for the purposes of s. 178.16(1).  But I do not think the provision can be so read because what makes the interception unreasonable is the activity excepted from the application by s. 178.16(1)(b).  Section 178.16(1)(a), therefore, appears to relate to other unlawfulness and, in particular, an interception that violates the prohibition in s. 178.11(2) which, we saw, does not apply to the interception in question here.  The communication then is not made inadmissible by s. 178.16(1).  It would thus appear admissible as relevant evidence.

 

    That being so, one must consider the question of the admissibility of the communication under s. 24(2)  of the Charter .  That provision provides that evidence that was obtained in a manner that infringed or denied any right or freedom guaranteed under the Charter  shall be excluded if it is established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute.

 

    In R. v. Collins, [1987] 1 S.C.R. 265, Lamer J. dealt with the manner in which s. 24(2) must be approached.  The first point to observe is that the onus is on the person who seeks the exclusion of evidence to establish that its admission would bring the administration of justice into disrepute.  Lamer J., at pp. 283-84, set forth many of the factors to be considered, namely:

 

-‑what kind of evidence was obtained?

 

‑-what Charter  right was infringed?

 

‑-was the Charter  violation serious or was it of a merely technical nature?

 

‑-was it deliberate, wilful or flagrant, or was it inadvertent or committed in good faith?

 

‑-did it occur in circumstances of urgency or necessity?

 

‑-were there other investigatory techniques available?

 

‑-would the evidence have been obtained in any event?

 

‑-is the offence serious?

 

‑-is the evidence essential to substantiate the charge?

 

‑-are other remedies available?

 

    Of cardinal importance in assessing these factors is the fairness of the process, and, in particular, its impact on the fairness of the trial.  Undoubtedly, the breach infringed upon an important Charter  right, and the evidence could have been obtained without breaching the Charter .  But what strikes one here is that the breach was in no way deliberate, wilful or flagrant.  The police officers acted entirely in good faith.  They were acting in accordance with what they had good reason to believe was the law ‑- as it had been for many years before the advent of the Charter .  The reasonableness of their action is underscored by the seriousness of the offence.  They had reasonable and probable cause to believe the offence had been committed, and had they properly understood the law, they could have obtained an authorization under the Code to intercept the communication.  Indeed, they could have proceeded without resorting to electronic surveillance and relied solely on the evidence of the undercover officer or the informer.  In short, the Charter  breach stemmed from an entirely reasonable misunderstanding of the law by the police officers who would otherwise have obtained the necessary evidence to convict the accused in any event.  Under these circumstances, I hold that the appellant has not established that the admission of the evidence would bring the administration of justice into disrepute.

 

Disposition

 

    I would dismiss the appeal.  I would answer the constitutional questions as follows:

 

1.Does section 178.11(2)(a) of the Criminal Code , legalizing the interception of private communications with the consent of the originator or intended recipient thereof, without the need for judicial authorization, infringe or deny the rights and freedoms guaranteed by s. 8  of the Canadian Charter of Rights and Freedoms ?

 

Section 178.11(2)(a) of the Code does not infringe or deny the rights and freedoms guaranteed by s. 8  of the Charter , but the interception of private communications by an instrumentality of the state with the consent of the originator or intended recipient thereof, without prior judicial authorization, does infringe the rights and freedoms guaranteed by s. 8.

 

2.If section 178.11(2)(a) of the Criminal Code  does infringe or deny the rights and freedoms guaranteed by s. 8  of the Canadian Charter of Rights and Freedoms , is it justified by s. 1  of the Charter  and therefore not inconsistent with the Constitution Act, 1982 ?

 

It is not necessary to answer this question.

 

//Lamer J.//

 

    The following are the reasons delivered by

 

    LAMER J. -- My colleague, Justice La Forest, has set out the facts, the law, the judgments below and the positions of the parties before this Court.  I am of the view that this appeal fails.  I have read the unanimous judgment of the Court of Appeal for Ontario, written by Cory J.A., as he then was.  I am in complete agreement with those reasons and I feel I cannot improve upon them.  They are conveniently reported at (1987), 60 C.R. (3d) 142, 38 C.C.C. (3d) 1.

 

    Consequently, I need not address the issue as to whether the evidence should be excluded under s. 24(2)  of the Canadian Charter of Rights and Freedoms , and I would dismiss this appeal.

 

     Appeal dismissed.  Section 178.11(2)(a) of the Criminal Code , does not infringe or deny the rights and freedoms guaranteed by s. 8  of the  Charter , but the interception of private communications by an instrumentality of the state with the consent of the originator or intended recipient thereof, without prior judicial authorization, does infringe the rights and freedoms guaranteed by s. 8.  It was not necessary to answer the second question.

 

    Solicitors for the appellant:  Gold & Fuerst, Toronto.

 

    Solicitor for the respondent:  John C. Tait, Ottawa.

 

    Solicitor for the intervener the Attorney General of Quebec:  The Attorney General of Quebec, Ste‑Foy.

 

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