Goldman v. R.

Goldman v. R.
Collection
Supreme Court Judgments
Date
1979-12-21
Report
[1980] 1 SCR 976
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves; McIntyre, William Rogers
On appeal from
Ontario
Subjects
Criminal law
Evidence
Decision Content
Supreme Court of Canada
Goldman v. R., [1980] 1 S.C.R. 976
Date: 1979-12-21
Gordon David Goldman (Plaintiff) Appellant;
and
Her Majesty The Queen (Defendant) Respondent.
1979: March 14; 1979: December 21.
Present: Laskin C.J. and Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and Mclntyre JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Conspiracy to possess counterfeit money—Evidence—Admissibility—Conversations recorded by consent of one party—Proof of consent—Consenter not a witness—Criminal Code, ss. 178.1, 178.11(2)(a), 178.16(1)—Protection of Privacy Act, 1973‑74 (Can.), c. 50.
Evidence—Interception—Conversations intercepted by consent—Direct conversation—Telephone conversation—Admissibility—Voluntariness of consent—Proof of consent—Criminal Code, ss. 178.1, 178.11(2)(a), 178.16(1)—Protection of Privacy Act, 1973-74 (Can.), c. 50.
Appellant Goldman was acquitted on a charge of conspiracy with one Cremascoli (now deceased), one Dwyer, and others unknown, to possess counterfeit American money. The Crown case depended on the admission in evidence of recordings made by police of two conversations on May 20, 1976 between Dwyer and appellant. The first was a telephone conversation and the second a direct conversation during which Dwyer was fitted with a concealed device and from which transmissions were recorded by the police who were some distance away. Dwyer, arrested in the U.S., was found to be in possession of counterfeit U.S. money and to avoid serious punishment agreed to assist the police. He was brought to Canada and gave a consent in writing to the interception of his conversations with Goldman. After completing his part in the matter he returned to the U.S. and has not since been seen by agents of the Crown. Dwyer was not called as a witness at the trial and after a lengthy voir dire the trial judge refused to admit the evidence. The judge concluded that Dwyer had given bona fide consent to the interception but also that the interceptions having been made without judicial authority were not lawfully made within s. 178.16(1)(a) of the Criminal Code and therefore, that since Dwyer’s consent did not include a consent to the admission of evidence under s. 178.16(1)(b), the evi- dence was excluded. The Court of Appeal however accepted the trial judge’s finding as to the nature of Dwyer’s consent, but held that such consent made the interception lawful and that the evidence was admissible under s. 178.16(1)(a). A new trial was accordingly ordered.
Held (Laskin C.J. dissenting): The appeal should be dismissed.
Per Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and Mclntyre JJ.: In addition to its submissions on the points raised by the appellant the Crown argued that the intercepted conversations were not private communications within the meaning of s. 178.1 of the Criminal Code because Dwyer, who originated them, had consented to and knew of the interception and that accordingly Part IV.1 of the Code did not apply and the conversations were admissible under the common law rules of evidence. The point was not argued at trial and not decided by the Court of Appeal which relied on other grounds for its decision. Once under the definition of “private communication”, it is the originator’s state of mind that is decisive. If Dwyer was the sole originator of the communications then they were not private within the terms of the Protection of Privacy Act and they would not be subject to the terms of Part IV.1 of the Criminal Code. There is however the distinction that the Code speaks of a “private communication” and not of a “private conversation”. It would be an over simplification to say that, in the case of a telephone conversation, the “originator of the private communication” is the person who made the call; or that in the case of a direct conversation the originator was either the arranger of the meeting or the person who made the first remark. Conversation is the broader term and includes an interchange of a series of communications. It is consistent with the scheme of Part IV.1 to consider that the originator of a private communication (under s. 178.1) is the person who makes the remark or series of remarks which the Crown seeks to adduce in evidence. Such a person, speaking with a reasonable expectation of privacy, who makes statements in an electronically intercepted conversation, has, as the originator of them, the protection of the privacy provisions of the Criminal Code. The admissibility of the statements at any subsequent trial will depend on Part IV.1 of the Code. To the extent that the conversations in this appeal were originated by the appellant they were private under the Act.
While there had been no judicial authorization for the interceptions and the Crown relied solely on a consent to intercept under s. 178.11(2)(a), it is clear, first, that prior to the passing of the Protection of Privacy Act interceptions such as these were lawful and further that the only Criminal Code provision which could render them unlawful is s. 178.11(1). Subsection (2) of s. 178.11 excepts from the strictures of subs. (1) an interception by consent. A consent interception under s. 178.11(2) is thus unaffected by subs. (1) and remains lawful. The interceptions here, if made with a valid consent, would be lawful under s. 178.16(1) and evidence thereof admissible.
The courts below did not err in their determination of what constituted consent. Consent must be voluntary (i.e. free from coercion) and made knowingly, with an awareness of the significance of the consent. On the evidence here the consent was valid and legally effective.
Finally the admission of the signed consent of Dwyer did not contravene the hearsay rule—Dwyer not having been called to give evidence at the trial. The consent in question [under s. 178.11(2)(a)] may be express or implied and on the evidence the Crown properly discharged the onus upon it and raised a clear implication of consent.
Per Laskin C.J., dissenting: In Rosen v. The Queen, [1980] 1 S.C.R. 961, the point was made in dissent that the ex post facto consent given in that case to make conversations with the accused admissible against him, being procured by the Crown by a promise of benefit, was not voluntary. If that dissent was right on this point, the present case is a fortiori. Once an improper inducement is established any confession that follows is tainted and inadmissible in evidence. Such a fundamental question as the voluntariness of a consent cannot be avoided by calling it a question of fact. The confession cases do not support the position that notwithstanding a threat or fear of prejudice, or promise of benefit or advantage, there may still be a finding of voluntariness as being one of fact. The proper construction of the definition of “private communication” and the meaning of “originator” should be left open.
[R. v. Miller & Thomas (No. 1) (1975), 28 C.C.C. (2d) 94 (B.C. Co. Ct.); R. v. LaSarge (1976), 26 C.C.C. (2d) 388; Ibrahim v. The Queen, [1914] A.C. 599; Rosen v. The Queen, [1980] 1 S.C.R. 961, referred to.] APPEAL from a judgment of the Court of Appeal for Ontario[1] allowing an appeal against an acquittal on a charge of conspiracy, with others, to pass counterfeit money. Appeal dismissed, Laskin C.J. dissenting.
Earl J. Levy, Q.C., for the appellant.
David Watt, for the respondent.
The following are the reasons delivered by
THE CHIEF JUSTICE (dissenting)—In my reasons in Rosen v. The Queen[2], which are being issued concurrently with the reasons that now follow in this case, I took the point, as a decisive ground for ordering a new trial, the the ex post facto consent given in the Rosen case to make conversations with the accused admissible against him, being procured by the Crown by a promise of benefit, was not voluntary. The conversations were, therefore, not admissible. If I was right on this point in the Rosen case then, in the present case, it is a fortiori.
Whereas in Rosen there was an illegally intercepted communication and the ex post facto consent was intended to make it admissible in evidence, here the promise of leniency to one Dwyer (who was found in possession of counterfeit bills) preceded the recording of any conversation with the appellant Goldman. In reliance on the promise of leniency, Dwyer proceeded to co-operate with the police who, having his written consent, intercepted a telephone conversation and also a face-to-face conversation during which Dwyer wore a concealed body pack. The distinction taken by my brother Mclntyre (in refusing to adapt the confession rule to privacy cases) between an inculpatory statement induced by a promise of benefit held out by a person in authority and an already intercepted communication does not apply in the present case. True, there may be a formal similarity in the two situations, but where the promise of benefit or fear of prejudice, as the case may be, induces a person in Dwyer’s position to initiate a private communication with an accused which is going to be intercepted by the police, there is the likelihood of leading the accused into damaging statements in order to redeem the promise of benefit or avoid any likely prejudice. It must be remembered that in this case Dwyer, after completing his assignment for the police, went back to the United States and was not available to give evidence at Goldman’s trial.
To repeat, if I was correct in Rosen, the present case is a fortiori. Moreover, I am unable to appreciate how such a fundamental question as the voluntariness of a consent can be avoided by calling it a question of fact. The confession cases do not, in my opinion, support the position that notwithstanding a threat or fear of prejudice, or promise of benefit of advantage, there may still be a finding of voluntariness as being one of fact. Once an improper inducement is established, any confession that follows is tainted and is inadmissible in evidence: see Kaufman, Admissibility of Confessions (2nd ed. 1973), c. 5, at pp. 70 et seq.
Although this is enough to dispose of the present case (in which I would set aside the order for a new trial by the Ontario Court of Appeal and restore the acquittal at trial), there are other important questions here which merit canvass. In Rosen, I was content to proceed on the assumption that the phrase “lawfully made” in s. 178.16(1)(a) covered both judicially authorized interceptions and interceptions made with prior consent, leaving s. 178.16(1)(b) as a provision envisaging ex post facto consent to admission in evidence of an interception that was originally illegal. I am not prepared to rest on this assumption in this case. In my opinion, there is at least ambiguity in the words “lawfully made”, and good ground for resolving it in favour of the policy of protection of privacy. The present Criminal Code provisions with which we are concerned originated in the Protection of Privacy Act, 1973-1974 (Can.), c. 50, an Act which not only added a new Part IV.1 to the Criminal Code under the heading “Invasion of Privacy”, but as well a new Part I.1 to the Crown Liability Act, also headed “Invasion of Privacy” and also amended the Official Secrets Act to authorize the Solicitor General to issue warrants for intercepting communications where evidence under oath satisfied him that the interception was necessary for the prevention or detection of subversive activity or necessary to safeguard the security of Canada. The amendment went on to specify the contents of a warrant so issued.
It is by no means clear to me that prior to the passing of the Protection of Privacy Act interceptions such as those made here were lawful. They were at least civil trespasses or invasions of privacy, although, in line with the common law, the fruits of the interceptions were, if relevant to an issue in a criminal trial, admissible in evidence. If the words “lawfully made” in s. 178.16(1)(a) mean simply not prohibited by law then, of course, they would cover interceptions made with prior consent as well as those made through judicial authorization.
I set out here the relevant provisions of the Criminal Code which give perspective to the view that I hold of the words “lawfully made”. They are as follows:
178.1 In this Part,
“authorization” means an authorization to intercept a private communication given under section 178.13 or subsection 178.15(2);
“private communication” means any oral communication or any telecommunication made under circumstances in which it is reasonable for the originator thereof to expect that it will not be intercepted by any person other than the person intended by the originator thereof to receive it; 178.11 (1) Every one who, by means of an electromagnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for five years.
(2) Subsection (1) does not apply to
(a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it;
(b) a person who intercepts a private communication in accordance with an authorization or any person who in good faith aids in any way a person whom he has reasonable and probable grounds to believe is acting with any such authorization;
(c) a person engaged in providing a telephone, telegraph or other communication service to the public who intercepts a private communication,
(i) if such interception is necessary for the purpose of providing such service,
(ii) in the course of service observing or random monitoring necessary for the purpose of mechanical or service quality control checks, or
(iii) if such interception is necessary to protect the person’s rights or property directly related to providing such service; or
(d) an officer or servant of Her Majesty in right of Canada in respect of a private communication intercepted by him in the course of random monitoring that is necessarily incidental to radio frequency spectrum management in Canada.
(3) Where a private communication is originated by more than one person or is intended by the originator thereof to be received by more than one person, a consent to the interception thereof by any one of such persons is sufficient for the purposes of paragraph (2)(a), subsection 178.16(1) and subsection 178.2(1).
178.12 An application for an authorization shall be made ex parte and in writing to a judge of a superior court of criminal jurisdiction, or a judge as defined in section 482 and shall be signed by the Attorney General of the province in which the application is made or the Solicitor General of Canada or an agent specially designated in writing for the purposes of this section by
(a) the Solicitor General of Canada personally, if the offence under investigation is one in respect of which proceedings, if any, may be instituted at the instance of the Government of Canada and conducted by or on behalf of the Attorney General of Canada, or
(b) the Attorney General of a province personally, in respect of any other offence in that province,
and shall be accompanied by an affidavit which may be sworn on the information and belief of a peace officer or public officer deposing to the following matters, namely:
(c) the facts relied upon to justify the belief that an authorization should be given together with particulars of the offence;
(d) the type of private communication proposed to be intercepted;
(e) the names and addresses, if known, of all persons, the interception of whose private communications there are reasonable and probable grounds to believe may assist the investigation of the offence, and if not known, a general description of the place at which private communications are proposed to be intercepted or, if a general description of that place cannot be given, a general description of the manner of interception proposed to be used;
(f) the period for which the authorization is requested; and
(g) whether other investigative procedures have been tried and have failed or why it appears they are unlikely to succeed or that the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures. 1973, c. 50, s. 2.
178.13 (1) An authorization may be given if the judge to whom the application is made is satisfied that it would be in the best interests of the administration of justice to do so and that
(a) other investigative procedures have been tried and have failed;
(b) other investigative procedures are unlikely to succeed; and
(c) the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.
(2) An authorization shall
(a) state the offence in respect of which private communications may be intercepted;
(b) state the type of private communication that may be intercepted; (c) state the identity of the persons, if known, whose private communications are to be intercepted and where the identity of such persons is not known, generally describe the place at which private communications may be intercepted or, if a general description of that place cannot be given, generally describe the manner of interception that may be used;
(d) contain such terms and conditions as the judge considers advisable in the public interest; and
(e) be valid for the period, not exceeding thirty days, set forth therein.
…
178.15 (1) Notwithstanding section 178.12, an application for an authorization may be made ex parte to a judge of a superior court of criminal jurisdiction, or a judge as defined in section 482, designated from time to time by the Chief Justice, by a peace officer specially designated in writing for the purposes of this section by
(a) the Solicitor General of Canada, if the offence is one in respect of which proceedings, if any, may be instituted by the Government of Canada and conducted by or on behalf of the Attorney General of Canada, or
(b) the Attorney General of a province, in respect of any other offence in the province,
if the urgency of the situation requires interception of private communications to commence before an authorization could, with reasonable diligence, be obtained under section 178.13.
(2) Where the judge to whom an application is made pursuant to subsection (1) is satisfied that the urgency of the situation requires that interception of private communications commence before an authorization could, with reasonable diligence, be obtained pursuant to section 178.13, he may, on such terms and conditions, if any, as he considers advisable, give an authorization in writing for a period of up to thirty-six hours.
(3) For the purposes of section 178.16 only, an interception of a private communication in accordance with an authorization given pursuant to this section shall be deemed not to have been lawfully made unless the judge who gave the authorization or, if such judge is unable to act, a judge of the same jurisdiction, certifies that if the application for the authorization had been made to him pursuant to section 178.12 he would have given the authorization.
…
178.16 (1) A private communication that has been intercepted and evidence obtained directly or indirectly as a result of information acquired by interception of a private communication are both inadmissible as evidence against the originator thereof or the person intended by the originator thereof to receive it unless
(a) the interception was lawfully made; or
(b) the originator of the private communication or the person intended by the originator thereof to receive it has expressly consented to the admission thereof.
(2) Where in any proceedings the judge is of the opinion that any private communication or any other evidence that is inadmissible pursuant to subsection (1)
(a) is relevant, and
(b) is inadmissible by reason only of a defect of form or an irregularity in procedure, not being a substantive defect or irregularity, in the application for or the giving of the authorization under which such private communication was intercepted or by means of which such evidence was obtained, or
(c) that, in the case of evidence, other than the private communication itself, to exclude it as evidence may result in justice not being done.
he may, notwithstanding subsection (1), admit such private communication or evidence as evidence in such proceedings.
…
(4) A private communication that has been lawfully intercepted shall not be received in evidence unless the party intending to adduce it has given to the accused reasonable notice of his intention together with
(a) a transcript of the private communication, where it will be adduced in the form of a recording, or a statement setting forth full particulars of the private communication, where evidence of the private communication will be given viva voce; and
(b) a statement respecting the time, place and date of the private communication and the parties thereto, if known.
…
I refer also to provisions of the Crown Liability Act as added by the Protection of Privacy Act, these being,
7.1 In this Part,
“authorization” means an authorization to intercept a private communication given under section 178.13 of the Criminal Code;
… 7.2 (1) Subject to subsection (2), where a servant of the Crown, by means of an electromagnetic, acoustic, mechanical or other device, intentionally intercepts a private communication, in the course of his employment, the Crown is liable for all loss or damage caused by or attributable to such interception, and for punitive damages in an amount not exceeding $5,000, to each person who incurred such loss or damage.
(2) The Crown is not liable under subsection (1) for loss or damage or punitive damages referred to therein where the interception complained of
(a) was lawfully made;
(b) was made with the consent, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it; or
(c) was made by an officer or servant of the Crown in the course of random monitoring that is necessarily incidental to radio frequency spectrum management in Canada.
…
The tort liability imposed upon the Crown by s. 7.2(1) above parallels the criminal liability imposed by s. 178.11(1) of the Criminal Code, but in each case there are qualifying or saving provisions found in s. 7.2(2) and s. 178.11(2) respectively. The qualification of tort liability under s. 7.2(2)(a) where the interception was “lawfully made” necessarily excludes express or implied consent to an interception since this is provided for under s. 7.2(2)(b), being in the same wording as s. 178.11(1)(b) of the Criminal Code. So too, s. 7.2(2)(c) is a particular saving provision which again limits the meaning of “lawfully made” in s. 7.2(2)(a). It appears to me to follow that the words “lawfully made” refer to a judicial authorization, having regard to the fact that “authorization” is defined in s. 7.1 of the amended Crown Liability Act by reference to the definition of this word in s. 178.13 of the Criminal Code. The way in which the Criminal Code amendments and those in the Crown Liability Act are tied together strongly supports the conclusion that the same construction should be placed upon the words “lawfully made” in both statutes. Even if reference is had to the Criminal Code amendments alone, their context under the Protection of Privacy Act points to a difference between interceptions that, because of judicial authorization, are “lawfully made” and those that are made with consent. This difference is reflected in s. 178.15(3) as well as in s. 178.16(2)(b). Thus, s. 178.15(3) opens with the words “For the purposes of s. 178.16 only, an interception of a private communication in accordance with an authorization given pursuant to this section shall be deemed not to have been lawfully made unless.”, and the provisions of s. 178.16(2)(b) referring to defects in form of an authorization, are consistent with the view that “lawfully made” refers to judicial authorization. They cannot have any application to interceptions under s. 178.11(2)(a) or to those permitted for the limited purposes of s. 178.11(2)(c) and (d). Again, the notice provisions of s. 178.16(4) bear a similarity to the information that must be included in an authorization under s. 178.13 and thus reinforce my view that s. 178.16(1)(a) applies only to judicial authorization of an interception.
In my opinion, s. 178.16, in the light of the elaborate controls set up under ss. 178.11 to 178.14 was designed to protect privacy of communication by altering the common law rule as to admission of illegally obtained evidence, so that even if collaboration with the police resulted under s. 178.11(2)(a), this did not ipso facto make the evidence obtained by a consensual interception admissible without a further consent under s. 178.16(1)(b). I do not agree that the legislation under examination is sufficiently clear to warrant the conclusion that a consent under s. 178.11(2)(a) dispenses with any further consent in relation to admissibility. Indeed, s. 178.16(2) reinforces this position.
In principle, I see a vast difference between a judicial authorization for an interception which, at the same time, would make its fruits admissible in evidence and a prior consent by a private person to an interception destroying another’s expected privacy. Of course, Parliament could prescribe that for the purpose of admissibility in evidence both situations be treated the same way. It has not, however, done so with the clarity that should be present to enable A., by consenting to an interception of private communications with B., to make those communications admissible without more against B. It is not only that one may distinguish the positive words “lawfully made” from the excepting terms of s. 178.11(2)(a) (framed in the negative), but there are the other indications of a difference running through the various sections that I have quoted, sufficient to establish an ambiguity in s. 178.16(1)(a) and to support subject matter in a requirement of a further consent under s. 178.16(1)(b).
The two points I have taken are enough to dispose of this case and I leave for consideration on another occasion the admissibility in evidence of Dwyer’s signed consent when he himself was not available as a witness. Again, I leave open the question of the proper constitution of the definition of “private communication”, especially in respect of the meaning of “originator”.
As I have previously indicated, I would allow the appeal, set aside the order of the Ontario Court of Appeal and restore the acquittal at trial.
The judgment of Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and Mclntyre JJ. was delivered by
MCINTYRE J.—This is an appeal from the judgment of the Court of Appeal for Ontario which allowed a Crown appeal against the acquittal of the appellant, sometimes referred to hereafter as Goldman, on a charge of conspiracy with one Cremascoli (now deceased), one Dwyer, and others unknown, to possess counterfeit American money. The Crown’s case depended upon the admission in evidence of recordings made by the police of two conversations between the appellant and Dwyer on May 20, 1976. The first was a telephone conversation, and the second a direct conversation between Dwyer and the appellant during which Dwyer was fitted with a concealed body pack, transmissions from which were recorded by the police who were some distance away.
Dwyer was arrested in the United States and found to be in possession of counterfeit United States money. To avoid serious punishment, he agreed to assist the police. He was brought to Canada and gave a consent in writing to the interception of his conversations with Goldman. After completing his part in the matter, he returned to the United States and has since not been seen by agents of the Crown. There is evidence, however, that he has been interviewed by representatives of the appellant.
The Crown tendered the evidence of intercepted conversations at Goldman’s trial and a voir dire lasting some six days was held to determine the admissibility of such evidence. Dwyer was not called as a witness. The trial judge refused to admit the evidence. He considered that Dwyer had given a bona fide consent to the interception of the communications with Goldman free from any police coercion even though Dwyer was not present in court to give evidence before him. However, he also concluded that the interceptions, having been made without any judicial authorization, were not lawfully made within the meaning of s. 178.16(1)(a) of the Criminal Code. He therefore concluded that they could not be admitted in evidence and, since Dwyer’s consent to the interception did not include a consent to the admission of the evidence under s. 178.16(1)(b), it was excluded. The Crown adduced no other evidence except to prove the circumstances relating to the arrest of Dwyer and an acquittal resulted.
The Court of Appeal adopted a different view. It accepted the trial judge’s finding as to the nature of the consent given by Dwyer, but it went further and held that the giving of such consent made the interception lawful. The evidence was therefore held to be admissible under s. 178.16(1)(a). The appeal was allowed and a new trial ordered. The appellant raised several grounds of appeal in this Court. To summarize, it was contended that the Court of Appeal was wrong in holding that an interception of a private communication is lawfully made under s. 178.16(1)(a) when made by a consent under s. 178.11(2)(a) and without judicial authorization; that it was wrong in its determination of what constitutes a valid consent under s. 178.11(2)(a) of the Criminal Code; that it was wrong in holding that Dwyer did in fact consent to the interception; and that it was wrong in admitting in evidence a form of consent signed by Dwyer when he gave no evidence at trial. The Crown, in addition to its submissions on the points raised by the appellant, argued that the intercepted conversations were not private communications within the meaning of s. 178.1 of the Criminal Code because Dwyer, who originated them, had consented to and knew of the interception and consequently had no reasonable belief that the conversations would not be intercepted. Therefore, it was said, Part IV.1 of the Criminal Code did not apply and the conversations were admissible under common law rules of evidence. This point was not argued at trial. It was raised in the Court of Appeal but not decided because the court relied upon other grounds for its decision. Because of its importance in the case, I propose to deal with it at the outset.
Section 178.1 defines a “private communication” in these terms:
“private communication” means any oral communication or any telecommunication made under circumstances in which it is reasonable for the originator thereof to expect that it will not be intercepted by any person other than the person intended by the originator thereof to receive it;
Prior to the coming into effect of the Protection of Privacy Act in 1974 which amended the Criminal Code by the addition of Part IV.1, an intercepted communication of the kind described above was admissible in evidence, subject to established common law rules of evidence, without the statutory restrictions now found in Part IV.1 of the Criminal Code (ss. 178.1 and 178.11 to 178.22 inclusive). One effect of Part IV.1 was to break new ground and impose restrictions upon the admission of such evidence. Section 178.11 is reproduced hereunder:
178.11 (1) Every one who, by means of an electromagnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for five years.
(2) Subsection (1) does not apply to
(a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it;
(b) a person who intercepts a private communication in accordance with an authorization or any person who in good faith aids in any way a person whom he has reasonable and probable grounds to believe is acting with any such authorization;
(c) a person engaged in providing a telephone, telegraph or other communication service to the public who intercepts a private communication,
(i) if such interception is necessary for the purpose of providing such service,
(ii) in the course of service observing or random monitoring necessary for the purpose of mechanical or service quality control checks, or
(iii) if such interception is necessary to protect the person’s rights or property directly related to providing such service; or
(d) an officer or servant of Her Majesty in right of Canada in respect of a private communication intercepted by him in the course of random monitoring that is necessarily incidental to radio frequency spectrum management in Canada.
(3) Where a private communication is originated by more than one person or is intended by the originator thereof to be received by more than one person, a consent to the interception thereof by any one of such persons is sufficient for the purposes of paragraph (2)(a), subsection 178.16(1) and subsection 178.2(1).
The facts, so far as they relate to this point, may be shortly stated. On May 20, 1976, in Toronto, at about 8:00 a.m., Dwyer in the presence of police officers made a telephone call to Goldman. A device had been installed upon the telephone which enabled the recording of this conversation. This fact was, of course, known to Dwyer but unknown to Goldman. By this time Dwyer had agreed to co-operate with the police and to assist in the investigation. The same day, a body pack transmission device was concealed upon Dwyer’s person by the police with Dwyer’s consent. Dwyer then went to Goldman’s office where he met and had a fifteen minute conversation with him. By means of the concealed body pack, the police, who were some distance away, were able to receive and record the conversation. Prior to the phone call and the meeting with the appellant, Dwyer had signed a form of consent to the interception of his conversations with the appellant.
For the purpose of dealing with this branch of the case, it is not necessary to consider whether the consent on the part of Dwyer was a valid and effective consent or whether the written consent was properly admissible in evidence. These questions will be dealt with later. It is sufficient to observe that it was abundantly clear that, during both the telephone conversation and the personal conversation which followed, Dwyer was fully aware that the police were intercepting and recording the words spoken. Dwyer then had no reasonable expectation that the conversations would not be intercepted. It must be accepted as well that the appellant was unaware of any interception. There is no evidence to suggest that he was aware of Dwyer’s involvement with the police. It is a reasonable assumption, which I make for the purpose of this argument, that Goldman did have a reasonable expectation that the conversation would not be intercepted, in other words, that it would be a private communication.
It will be observed at once that under the definition of “private communication” it is the originator’s state of mind that is decisive. It follows, in my opinion, that if Dwyer was the sole originator of the communications they were not private communications within the meaning of the Act. They would not be subject to the terms of Part IV.1 of the Criminal Code. The appellant’s state of mind on the question would seem to be of no significance. It should also be observed, however, that the definition in the Criminal Code speaks of a “private communication” and not of a “private conversation”. It falls for the court to determine whether there is any difference in the two words, for if there is and if a conversation is made up of a series of communications given and received by each of the participants the problem is more difficult. The conversation would have to be broken down into its several component communications and those communications originated by Dwyer would not be subject to Part IV.1 of the Criminal Code and would be admissible at common law as if Part IV.1 had not been enacted. Those originated by Goldman, who was innocent of knowledge of the police role in the matter, would be subject to the provisions of Part IV.1 of the Criminal Code and their admissibility against him would be determinable under the provisions of that part of the Criminal Code. The extent of the applicability of Part IV.1 must therefore be determined.
Where one is considering a telephone conversation, it would be tempting to say that the originator of the private communication is the person who made the call. It would be equally possible to consider the originator to be the person who spoke first regardless of who made the call. When considering a direct conversation, one could consider as the originator of the entire conversation either the arranger of the meeting at which the conversation took place or the person who made the first remark. The adoption of such arbitrary tests, however, involves, in my view, an oversimplification. There has been little Canadian authority on this point and none which binds this Court. This is the first occasion when it has fallen for decision here. In R. v. Miller & Thomas (No. 1)[3], it seems to have been considered that the originator of a private telephone conversation was the person who made the call. In an unreported case in the Supreme Court of British Columbia, R. v. Jasicek, McKay J., in making a ruling on the admissibility of certain evidence during the course of the trial, rejected the argument that a conversation must be broken down into its separate communications. He considered it would involve a “strained and unrealistic interpretation of clear words in the statute”. In R. v. Zoell, in the Saskatchewan Court of Appeal, April 4, 1977 (as yet unreported), a case dealing with a charge of possession of an electromagnetic device for scanning radio broadcasts contrary to s. 178.18(1) of the Criminal Code, the question arose whether police broadcasts made by police with the knowledge of a high probability of unauthorized interception were private communications. Some inferential support may be found for the separate communication argument in the words of Culliton C.J.S. where he said:
It is to be noted that the criterion to be applied in determining what constitutes a “private communication” is an objective one. That test relates only to what is in the mind of the sender. In the present case the test is simply this. In the circumstances, as shown by the evidence, under which oral radio communications are regularly made by the Regina City Police over the assigned radio frequency, can it be said, that the sender of such communications can reasonably expect that they will not be intercepted by any person other than the persons intended to receive them? (Emphasis added.)
The purpose, it has been frequently said, of Part IV.1 of the Code was to protect the right to privacy. It may be more realistic to say that the purpose or effect of Part IV.1 has been to regulate the method of breach of any such right. That the right may be subject to frequent lawful breach is clear from the scheme of Part IV.1 but the courts must be astute to limi