R. v. Nygaard

R. v. Nygaard
Collection
Supreme Court Judgments
Date
1989-11-09
Report
[1989] 2 SCR 1074
Case number
20491, 20494
Judges
Dickson, Robert George Brian; Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley
On appeal from
Alberta
Subjects
Criminal law
Evidence
Notes
SCC Case Information: 20491, 20494
Decision Content
R. v. Nygaard, [1989] 2 S.C.R. 1074
Alan Gustaf Nygaard Appellant
v.
Her Majesty The Queen Respondent
and between
John Alexander Schimmens Appellant
v.
Her Majesty The Queen Respondent
indexed as: r. v. nygaard
File Nos.: 20491, 20494.
1989: May 26; 1989: November 9.
Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.
on appeal from the court of appeal for alberta
Criminal law -- Mens rea -- First degree murder -- Serious bodily harm known to be likely to cause death and reckless as to whether death ensues -- Whether or not planning and deliberation required for first degree murder incompatible with mens rea for murder through infliction of serious bodily harm causing death -- Criminal Code, R.S.C. 1970, c. C‑34, ss. 212(a)(ii), 214(2).
Evidence -- Admissibility -- Wiretaps -- Cross‑examination as to credibility of witness -- Witness' statements incompatible with statements in intercepted communication -- Criminal Code provisions respecting admissibility not met -- Whether or not reversible error made by trial judge -- Criminal Code, R.S.C. 1970, c. C‑34, ss. 178.16, 613(1)(b)(iii).
A man was brutally murdered as a result of a petty dispute which arose when a cheque used to pay for a $100 car stereo bounced. The stereo had been purchased from Nygaard by Meeks and was paid for by a cheque signed by two friends. Nygaard arrived at Meeks' room accompanied by two men. One of the men struck Meeks several times on the forehead with a baseball bat and broke his arm which was raised to protect his face. The man, later identified as Schimmens, then asked who had signed the cheque and proceeded to attack him viciously with the bat. The victim died at hospital of multiple skull fractures. Schimmens and Nygaard were charged with murder under s. 212 (a)(ii) of the Criminal Code : Schimmens was alleged to have meant to cause bodily harm knowing it could likely cause death and was reckless as to whether or not death would ensue and Nygaard was alleged to be a party to the offence. They were convicted of first degree murder pursuant to s. 214(2) which requires that the murder be planned and deliberate.
Nygaard called no evidence. His position was that he was not "a party" to the offence within the meaning of s. 21 of the Code. The Crown's case against Schimmens was primarily based on the testimony which identified him. Schimmens' defence was an alibi supported by two witnesses. One of these witnesses gave testimony when confronted with excerpts from intercepted conversations, which conflicted with earlier testimony. The result was that the witness' credibility was seriously damaged and the alibi defence devastated. The Crown successfully argued that the use of the wiretaps related only to the witness' credibility and that Schimmens was never cross‑examined with regard to the intercepted conversations. The Court of Appeal found the use of the wiretap evidence to be lawful and upheld appellants' convictions.
Two issues were raised here. First, is the element of planning and deliberation required by s. 214(2) of the Criminal Code incompatible with the requisite mens rea for s. 212 (a)(ii)? Secondly, did the trial judge make a reversible error when he permitted Crown counsel to cross‑examine a witness upon statements made by her in an intercepted telephone conversation when the provisions of s. 178.16 of the Code had not first been complied with?
Held (L'Heureux-Dubé J. dissenting): The appeal should be allowed.
Per Dickson C.J. and Lamer, Wilson, Sopinka and Cory JJ.: Section 214 is purely a classification section for sentencing purposes and does not create a separate substantive offence. The element of planning and deliberation justifies the harsher sentence. The term "planned" means that the scheme was conceived and carefully thought out before it was executed, and "deliberate" means considered, not impulsive.
A first degree murder conviction can be sustained by virtue of the combined operation of s. 214(2) and s. 212 (a)(ii). The essential element of s. 212 (a)(ii) is the intention to cause bodily harm of such a grave and serious nature that the accused knew that it was likely to result in the death of the victim. The aspect of recklessness is almost an afterthought in so far as the basic intent is concerned: it is the attitude of one who is aware of the danger the prohibited conduct could bring about and yet persists in that conduct despite the knowledge of the risk. The infliction of terrible bodily harm that will likely result in death can be planned and deliberate; continuing and persisting in that conduct despite the knowledge of the risk must be a part of that planning and deliberation. Nothing is added to the aspect of planning and deliberation by the requirement that the fatal assault be carried out in a reckless manner. The difference in the mens rea where the intent was to cause death and where the intent was to cause bodily harm knowing death could ensue was too slight to be taken into account.
The interception of private communications is an offence unless made either with consent of a participant in the conversation or in accordance with the procedure set out in the Code. Neither participant here consented to the wiretap, no voir dire was held to determine if the interception had been made in accordance with the Code's procedures and the defence had not been informed that the evidence would be used. The evidence ostensibly was not being used against an originator (Schimmens) in that it was being used to impeach the credibility of a witness. In fact, however, it was being used against the originator Schimmens to destroy his alibi defence. The Crown was attempting to do indirectly what it could not do directly and to allow such a procedure could result in widespread abuse and a fundamental unfairness to accused persons.
This was not a proper case to invoke the saving provisions of s. 613(1)(b)(iii). The conversations might have been readily admitted if a voir dire had been held but it was impossible to determine that in the absence of such a voir dire. To assume their admissibility would be to assume without any evidence that the requirements of the Code had been complied with.
A new trial was ordered for both Schimmens and Nygaard in order to obviate a situation where Schimmens, the prime mover of the crime, might be found guilty of second degree murder at the second trial while Nygaard, a party to the offence, had been found guilty of first degree murder at the first.
Per La Forest, Gonthier and McLachlin JJ.: The reasons of Cory and L'Heureux‑Dubé JJ. were agreed with on the first issue.
"Admissible as evidence" is a term of art in the law of evidence which designates putting evidence on which the jury can rely in its deliberations into the record. Cross‑examination on a prior statement does not make that statement evidence. A statement may become evidence if the person who made it admitted making it and acknowledged that it was true as happened here.
When a witness under cross‑examination admits making certain statements, it is that testimony and not the intercepted communication to which the Act is directed that becomes evidence. Section 178.16(1) is confined to the admission in evidence of intercepted private communications in the hands of the Crown. The Crown, however, cannot introduce unlawfully obtained intercepted statements indirectly by questioning witnesses on them. Considerations of fairness suggest that intercepted statements governed by s. 178 of the Criminal Code should be treated in the same manner as confessions. The statement is inadmissible until the Crown proves the conditions of its admissibility.
Per L'Heureux‑Dubé J. (dissenting): Section 178.16 is an attempt to strike a delicate balance between the goal of protecting individuals from unwanted electronic surveillance and the desire for effective law enforcement. When the section speaks of the inadmissibility of evidence, these words should not be extended so as to exclude other possible uses of intercepted communications.
Section 178.16 clearly applies only to intercepted communications which the Crown might seek to adduce as evidence. The wording is explicit and precise as the word "evidence" is a term of art in criminal law. Section 178.16 does not therefore encompass the use of intercepted private communications for the sole purpose of testing the credibility of a witness in cross‑examination.
Cases Cited
By Cory J.
Distinguished: Droste v. The Queen, [1984] 1 S.C.R. 208; R. v. Ancio, [1984] 1 S.C.R. 225; R. v. Chabot (1985), 16 C.C.C. (3d) 483; referred to: R. v. Farrant, [1983] 1 S.C.R. 124; R. v. Widdifield (1961), Supreme Court of Ontario, Gale J., unreported, as excerpted in 6 Crim. L.Q. 152; Sansregret v. The Queen, [1985] 1 S.C.R. 570; R. v. Vaillancourt, [1987] 2 S.C.R. 636; Charette v. The Queen, [1980] 1 S.C.R. 785; Wildman v. The Queen, [1984] 2 S.C.R. 311.
By McLachlin J.
Referred to: Donnelly v. The King (1947), 89 C.C.C. 237; R. v. Lanigan (1984), 53 N.B.R. (2d) 388; R. v. Treacy (1944), 30 Cr. App. R. 93; Hebert v. The Queen, [1955] S.C.R. 120; Lui Mei Lin v. The Queen, [1989] 1 A.C. 288.
By L'Heureux‑Dubé J. (dissenting)
R. v. Welsh (1977), 32 C.C.C. (2d) 363; R. v. Gamble and Nichols (1978), 40 C.C.C. (2d) 415.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C., 1985, c. C‑5, s. 11 .
Criminal Code, R.S.C. 1970, c. C‑34, ss. 178.16 , 212 (a)(i), (ii), (b), (c), 214(2) , 613(1) (b)(iii).
Authors Cited
Bryant, Alan W. "The Adversary's Witness: Cross‑Examination and Proof of Prior Inconsistent Statements" (1984), 62 Can. Bar Rev. 43.
May, Richard. Criminal Evidence. London: Sweet & Maxwell, 1986.
McWilliams, Peter K. Canadian Criminal Evidence. Agincourt, Ont.: Canada Law Book Ltd., 1974.
Watt, David. Law of Electronic Surveillance in Canada. Toronto: Carswells, 1979.
APPEAL from a judgment of the Alberta Court of Appeal (1987), 78 A.R. 389, 36 C.C.C. (3d) 199, 59 C.R. (3d) 37, dismissing an appeal from convictions by Chrumka J. sitting with jury. Appeal allowed, L'Heureux-Dubé J. dissenting.
Noel O'Brien, Q.C., for the appellant Alan Gustaf Nygaard.
Alex Pringle, for the appellant John Alexander Schimmens.
Peter Martin, Q.C., and Earl Wilson, for the respondent.
//Cory J.//
The judgment of Dickson C.J. and Lamer, Wilson, Sopinka and Cory JJ. was delivered by
CORY J. -- Two issues are raised on this appeal. First, it must be determined whether a first degree murder conviction can be based upon the combined effect of ss. 212(a)(ii) and 214(2) of the Criminal Code, R.S.C. 1970, c. C-34. That is to say, is the element of planning and deliberation required by s. 214(2) incompatible with the requisite mens rea for s. 212(a)(ii). Secondly, it must be decided whether a reversible error was made by the trial judge when he permitted Crown counsel to cross-examine a witness upon statements made by her in an intercepted telephone conversation with the appellant Schimmens, without first complying with the provisions of s. 178.16 of the Code.
Factual Background
A man was brutally murdered as a result of a petty dispute arising out of the purchase of a $100 car stereo. Early in October of 1984, John Louis Meeks purchased from the appellant Nygaard, a car stereo for $100. Payment was made by means of a cheque which had been jointly signed by Anita Linda Tikk and the murdered man, Renne Tex Hammond. Both Anita Tikk and Renne Hammond were present at the time of the purchase of the stereo. The cheque bounced. Around 9 o'clock in the morning of October 12, 1984, Nygaard came to see Meeks where he was living at the West Valley Inn motel about a mile outside the Calgary city limits. Nygaard told him the cheque had bounced. Meeks promised him that he would have the money by that evening. Nygaard stated that if it wasn't cleared up that day, Meeks could expect trouble.
Some time later that day Meeks met with Anita Tikk and Renne Hammond. They rented some video cassettes and took them back to the West Valley Inn to watch them. Just before 6:00 p.m. there was a knock on the door of Meeks' room. It was Nygaard. Meeks testified that he gave him the $100 in cash. Just then two other men came walking up to the door. They asked: "Are you fucking with the bros?" One of them started to hit Meeks on the forehead with a baseball bat. Meeks was moved backwards into the room and onto the bed and was struck three more times with the bat. At one point he put his arm in front of his face for protection and received another blow from the bat, which broke his arm.
The man wielding the bat kept asking who had signed the cheque. Anita Tikk gave evidence that Meeks told the men that it was Hammond, while Meeks testified that it was Hammond himself who volunteered this information. The man with the bat then started to hit Hammond between the eyes with the bat. He struck him three times, each time with a full two-handed swing, all the while saying such things as: "You don't stiff the club. You don't hurt the club." At this point one of the men, Tikk thought it was Nygaard, Meeks thought it was Schimmens, took money from Tikk's purse and from Hammond. Nygaard then went over to pick up the video cassette recorder but the other man told him to leave it there, that they weren't petty thieves. On the way out the men warned the three people in the room: "If you tell anyone, we'll come back," and "if you tell anyone, you're dead." The man with the bat disconnected the phone by ripping out the cord.
Some 15 or 20 minutes after the men had left Anita Tikk, Meeks and Hammond went to the hospital. Hammond was described as being in a semi-conscious state at this time. He could only walk if supported by someone else. At the hospital, Meeks and Tikk advised the staff that Meeks and Hammond had fallen off a roof. Meeks' broken arm was treated and he was released. Hammond died in the hospital as a result of multiple skull fractures. Tikk went to the police to advise them of the incident the following day and later during the week Meeks did the same thing.
The Crown's case was primarily based on the testimony of Meeks and Anita Tikk. Their evidence was largely consistent but they did differ with regard to the appearance of the man who swung the bat with such devastating results. Both witnesses gave a similar description as to the height and eye colour of the man. Anita Tikk picked out both Nygaard and Schimmens from photograph folders at the police station after the incident. She also picked them out in a line-up the following day. Meeks did not identify Schimmens from the photograph folders but did pick him out at the line-up.
Nygaard and Schimmens were arrested on October 13 at premises that were shared by Schimmens and his girlfriend Glenda Jordan. A baseball bat with human blood on it was found in the seat of the couch in their suite.
At the trial Nygaard called no evidence. His position was that he was not "a party" to the offence within the meaning of s. 21 of the Criminal Code . Schimmens testified at the trial and called two witnesses, Brian Sager and Glenda Jordan. His defence was that of alibi. He said he had driven Jordan to the race-track where she worked and had attended the races with Sager.
During cross-examination Glenda Jordan stated that she never really discussed the case with Schimmens after his arrest despite the fact that she had seen him three or four times a week and talked with him on the phone every day. She specifically denied that Schimmens had asked her to get a transcript of the preliminary hearing, to read it, and then deliver it to Sager. As well she denied ever having read the transcript. Her evidence was that 10 minutes before the second race -- which would have been between 5:45 and 5:55 p.m. -- she had seen Schimmens at the races. This of course would be the very time when he was alleged to have been at the motel when the fatal injuries were inflicted upon Hammond.
Crown counsel persisted in his questioning of Jordan and read her specific portions of conversations that had taken place between Jordan and Schimmens and Jordan and a third party, James Wolton. Jordan eventually broke down and admitted that she had been lying. She confirmed she had indeed discussed with Schimmens the reading of the preliminary hearing transcripts by herself, Sager and another witness.
At this point an objection was taken by the defence counsel that the Crown was using the conversations in contravention of s. 178.16 of the Criminal Code . The objection was overruled. Crown counsel continued with the cross-examination at which point Jordan admitted that she had read part of the preliminary inquiry transcript and that Sager had read the whole transcript. At the conclusion of her cross-examination she did repeat that Schimmens had been at the race-track at the critical time. The Crown has conceded that the conversations were intercepted and recorded by means of an electronic surveillance but emphasized that Schimmens was never cross-examined with regard to the intercepted conversations.
The Courts Below
In his charge to the jury the trial judge made it plain that a conviction for first degree murder could be sustained on the basis of the interaction between s. 214(2) and either ss. 212(a)(i) or 212(a)(ii).
On the issue of the cross-examination's making use of the intercepted conversations the Court of Appeal (1987), 36 C.C.C. (3d) 199, was unanimous in its view that s. 178.16 had no application to the case because the conversations were not being used either against "the originator" Jordan or against James Wolton, whom the court took to be the intended receiver, neither of whom was on trial. The court agreed that the Crown counsel was justified in cross-examining on the intercepted conversations as he was doing no more than interrogating the witness Jordan on her prior inconsistent statement. It determined that since s. 178.16 had no application the trial judge was not obliged to hold a voir dire to prove the lawfulness of the interception before the intercepted conversation could be used in cross-examination. The court observed that the jury had been properly instructed as to the limited use which could be made of the statement. That is to say, that it could only be used in assessing the credibility of the witness and that it was not evidence as to the truth of the facts referred to in the statements themselves.
With regard to the verdict, Belzil J.A., for the majority, expressed the view that a conviction of first degree murder could properly result from the interaction of s. 212(a)(ii) and s. 214(2) . He observed that there are two mental elements included in s. 212(a)(ii), namely the intent to cause bodily harm which one knows is likely to cause death, and recklessness as to whether death ensues. He was of the opinion that recklessness as to the consequences was not part of the intention but was an alternative to the intention to kill. He stated that the planning and deliberation required by s. 214(2) of the Criminal Code referred only to the intentional portion of the mens rea requirement. He concluded that it is only the intent to cause bodily harm which one knows is likely to result in death which must be premeditated pursuant to s. 214(2) and not the recklessness referred to in s. 212 (a)(ii). Thus if a jury were satisfied beyond a reasonable doubt that the intent to cause bodily harm which the accused knew was likely to cause death was planned and deliberate and the planned act was then recklessly carried out, a first degree murder conviction could properly result.
Stevenson J.A. dissented on this point. He agreed with the majority that there are two mental elements required by s. 212(a)(ii), namely the intent to cause bodily harm that the accused knew was likely to cause death, and recklessness as to the consequences, but in his opinion s. 214(2) could not be brought into play. He expressed the view that planning and deliberation could not be applicable to the requisite mental element for recklessness. He concluded that if the planning and deliberation could not apply to all of the mental elements set forth in s. 212(a)(ii), there could be no possibility of a first degree murder conviction by means of s. 214(2) . He therefore would have substituted convictions for second degree murder.
The First Degree Murder Issue
It may be helpful to set forth at the outset the applicable sections of the Criminal Code :
212. Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; ...
214. . . .
(2) Murder is first degree murder when it is planned and deliberate.
It must be noted that this Court has stated on more than one occasion that s. 214 is purely a classification section and it does not create a separate substantive offence. See R. v. Farrant, [1983] 1 S.C.R. 124; Droste v. The Queen, [1984] 1 S.C.R. 208. The designation of murder as being of the first or second degree is for purposes of sentencing only.
What then is the meaning of planned and deliberate and can that classification be applied to the requisite intents set forth in s. 212(a)(ii)? It has been held that "planned" means that the scheme was conceived and carefully thought out before it was carried out and "deliberate" means considered, not impulsive. A classic instruction to a jury as to the meaning of "planned and deliberate" was given by Gale J., as he then was, in R. v. Widdifield (1961), Ontario Supreme Court, unreported, as excerpted in 6 Crim. L.Q. 152, at p. 153:
I think that in the Code "planned" is to be assigned, I think, its natural meaning of a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed. But that does not mean, of course, to say that the plan need be a complicated one. It may be a very simple one, and the simpler it is perhaps the easier it is to formulate.
The important element, it seems to me, so far as time is concerned, is the time involved in developing the plan, not the time between the development of the plan and the doing of the act. One can carefully prepare a plan and immediately it is prepared set out to do the planned act, or, alternatively, you can wait an appreciable time to do it once it has been formed.
As far as the word "deliberate" is concerned, I think that the Code means that it should also carry its natural meaning of "considered," "not impulsive," "slow in deciding," "cautious," implying that the accused must take time to weigh the advantages and disadvantages of his intended action.
Appellants' Positions
The appellants contended that the element of planning and deliberation cannot be applied to the mens rea required by s. 212(a)(ii). In support of this position the case of R. v. Ancio, [1984] 1 S.C.R. 225, was cited.
In R. v. Ancio this Court considered the requisite mental elements of the offence of attempted murder. It is true that in the course of his reasons given on behalf of the Court, McIntyre J. wrote at pp. 248-49:
The completed offence of murder involves a killing. The intention to commit the complete offence of murder must therefore include an intention to kill. I find it impossible to conclude that a person may intend to commit the unintentional killings described in ss. 212 and 213 of the Code. I am then of the view that the mens rea for an attempted murder cannot be less than the specific intent to kill.
However he emphasized that the reasons related only to the crime of attempted murder which is historically and conceptually distinct from that of murder. At page 240 McIntyre J. stated:
A great deal of the confusion surrounding the nature of the intent required to found a conviction for attempted murder may well stem from an assumption that murder and attempted murder are related offences which must share the same mental elements. A brief review of the historical development of the law relating to the two offences demonstrates that the crime of attempt developed as a separate and distinct offence from the offence of murder.
He concluded at pp. 250-51 that:
It was argued, and it has been suggested in some of the cases and academic writings on the question, that it is illogical to insist upon a higher degree of mens rea for attempted murder, while accepting a lower degree amounting to recklessness for murder. I see no merit in this argument. The intent to kill is the highest intent in murder and there is no reason in logic why an attempt to murder, aimed at the completion of the full crime of murder, should have any lesser intent. If there is any illogic in this matter, it is in the statutory characterization of unintentional killing as murder. The mens rea for attempted murder is, in my view, the specific intent to kill.
It is thus clear that the reasons refer only to the offence of attempted murder and the principles set forth are not automatically applicable to the case at bar.
Nor do I think that the case of R. v. Chabot (1985), 16 C.C.C. (3d) 483, relied upon by the appellants is of assistance. In R. v. Chabot the Ontario Court of Appeal concluded that s. 214(2) could not operate in conjunction with s. 212(c). That section provides as follows:
212. Culpable homicide is murder
. . .
(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.
The Court of Appeal reasoned, I think correctly, that in s. 212(c) murder might be committed although there could be no intention on the part of the accused to kill. Indeed, in that section the accused might well have desired to gain his ends without causing death. Thus it was held that there could not be planning and deliberation of a killing that might well have been unintended. The reasoning cannot be applied to the case at bar though as the requisite intent specified in s. 212(a)(ii) is very different from that of s. 212(c).
Authority Relied upon by the Respondent
Nor do I think that Droste v. The Queen, supra, relied upon by the respondent is dispositive of the issue. In the Droste case there could be no doubt that the accused had planned to kill his wife and, while carrying out his design, had killed instead his two unfortunate young children. His conviction was based on s. 212(b) which reads:
212. Culpable homicide is murder
. . .
(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; . . .
The decision centred on the requirements of a different section than those of the case at bar. In Droste v. The Queen, the issue was whether the planning and deliberation to kill A which resulted in the killing of B should be classified as murder in the first degree. It was found that the requirement of planning and deliberation was a requirement that related to the intention to take a human life and not to the identity of the victim. On the facts of that case there could be no doubt that Droste meant to cause death to a human being and planned and deliberated the death of a human being. In the result, Dickson J. (as he then was) writing on behalf of the Court concluded that s. 214(2) could operate in conjunction with s. 212(b) to sustain a first degree murder conviction. However, that decision centred on requirements of a section of the Code that are different from s. 212(a)(ii). The Droste decision cannot be determinative of the issue in the case at bar.
Can Section 212(a)(ii) be Combined with s. 214(2) to Result in a Conviction for First Degree Murder?
Throughout history the idea that one human being could cold bloodedly plan and deliberate upon the killing of another has been repugnant to all civilized societies and has tended to be considered as the most reprehensible of violent crimes. In Droste v. The Queen, supra, Dickson C.J. noted that it is the element of planning and deliberation of the murder which makes the crime of murder in the first degree more culpable and justifies the harsher sentence.
It remains then to consider what is the specific mens rea required by s. 212(a)(ii) to which the element of planning and deliberation must be related. The section requires that the Crown prove that the accused meant to cause the victim such bodily harm that he knew that it was likely to cause the death of the victim and was reckless whether death ensued or not as a result of causing that bodily harm. The essential element is that of intending to cause bodily harm of such a grave and serious nature that the accused knew that it was likely to result in the death of the victim. The aspect of recklessness is almost an afterthought in so far as the basic intent is concerned.
In Sansregret v. The Queen, [1985] 1 S.C.R. 570, recklessness was defined as being the attitude of one who was aware of the danger the prohibited conduct could bring about yet nevertheless persisted in that conduct despite the knowledge of the risk. Thus the section requires the accused to intend to cause the gravest of bodily harm that is so dangerous and serious that he knows it is likely to result in death and to persist in that conduct despite the knowledge of the risk.
In my view, the vital element of the requisite intent is that of causing such bodily harm that the perpetrator knows that it is likely to cause death and yet persists in the assault. There can be no doubt that a person can plan and deliberate to cause terrible bodily harm that he knows is likely to result in death. Nothing is added to the aspect of planning and deliberation by the requirement that the fatal assault be carried out in a reckless manner, that is to say by heedlessly proceeding with the deadly assault in the face of the knowledge of the obvious risks. The planning and deliberation to cause the bodily harm which is likely to be fatal must of necessity include the planning and deliberating to continue and to persist in that conduct despite the knowledge of the risk. The element of recklessness does not exist in a vacuum as a sole mens rea requirement, but rather it must act in conjunction with the intentional infliction of terrible bodily harm. I therefore conclude that planning and deliberation may well be coupled with the mens rea requirement of s. 212(a)(ii) and that a first degree murder conviction can be sustained by virtue of the combined operation of s. 214(2) and s. 212 (a)(ii). This ground of appeal must therefore fail.
As well, the appellant argued it was wrong to label an offence under s. 212(a)(ii) as murder. It was said that the requisite mens rea is such that it is not as grave a crime as that defined in s. 212(a)(i) where the requisite intent is to cause the death of someone. I cannot accept that contention. The variation in the degree of culpability is too slight to take into account. Let us consider the gravity of the crime described by s. 212(a)(ii) in the light of three examples which, pursuant to the section, would be murder. First an accused forms the intent to inflict multiple stab wounds in the abdomen and chest of a person knowing that the wounds are likely to kill the victim and, heedless of the known probable result, proceeds with the stabbing. Second, an accused forms the intent to shoot a former associate in the chest knowing that death is likely to ensue and, uncaring of the result, shoots the victim in the chest. Third, two accused form the intent to repeatedly and viciously strike a person in the head with a baseball bat realizing full well that the victim will probably die as a result. Nonetheless they continue with the bone-splintering, skull-shattering assault. The accused in all these examples must have committed as grave a crime as the accused who specifically intends to kill. Society would, I think, find the drawing of any differentiation in the degree of culpability an exercise in futility. The difference in the calibration on the scale of culpability is too minute to merit a distinction. I would conclude that the crime defined in s. 212(a)(ii) can properly be described as murder and on a "culpability scale" it varies so little from s. 212(a)(i) as to be indistinguishable.
I find some support for this position in R. v. Vaillancourt, [1987] 2 S.C.R. 636. There Lamer J., giving the reasons for the Court, stated at pp. 644-45:
There is a very interesting progression through s. 212 to s. 213 with respect to the mental state that must be proven.
The starting point is s. 212(a)(i) . . . .
This clearly requires that the accused have actual subjective foresight of the likelihood of causing the death coupled with the intention to cause that death. This is the most morally blameworthy state of mind in our system.
There is a slight relaxation of this requirement in s. 212(a)(ii) ....
Here again the accused must have actual subjective foresight of the likelihood of death. However, the Crown need no longer prove that he intended to cause the death but only that he was reckless whether death ensued or not. It should also be noted that s. 212(a)(ii) is limited to cases where the accused intended to cause bodily harm to the victim.
He went on to note, at pp. 645-46, that there is still a greater relaxation of the requisite mental element in s. 212(c), a provision which "eliminates the requirement of actual subjective foresight and replaces it with objective foreseeability or negligence". It is clear from these observations that the Court in that case concluded that there was but a slight relaxation of the requisite intent in s. 212(a)(ii) from that required by s. 212(a)(i). Section 212(a)(ii) demands a highly subjective mental element to be present, that of the intent to cause the gravest of bodily injuries that are known to the accused to be likely to cause death to the victim. It is to this intent that the s. 214(2) requirement of planning and deliberation can be properly applied.
The Wiretap Issue
This issue arises out of the cross-examination of the defence witness Jordan by Crown counsel. It was the Crown's position that Schimmens, during his time at the detention centre, had concocted an alibi for his defence and orchestrated the compliance of friends in supporting this alibi. The cross-examination of Jordan, who was Schimmens' girlfriend, was based upon five intercepted telephone calls. From the transcript it is clear that Crown counsel became specific in his interrogation and read to Jordan verbatim from portions of the transcript of the intercepted conversations. Although the Alberta Court of Appeal held that s. 178.16 of the Criminal Code did not apply, it based this finding on a mistaken belief that the conversations were between Jordan and one James Wolton. Neither Wolton nor Jordan were accused parties before the Court. However, four of those five conversations (the vital conversations) were instead between Jordan and the accused Schimmens. It was these four conversations which pertained to the plan to read and circulate the preliminary hearing transcripts. It was the presentation of these conversations to Jordan which caused her to admit she had lied in her earlier testimony. They were thus seriously damaging to her credibility and to the alibi defence. For the purposes of these reasons I need only deal with the conversations between Jordan and Schimmens.
Section 178.16 of the Criminal Code , subss. (1) and (4), reads 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.
. . .
(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.
These provisions are contained in Part IV.1 of the Criminal Code which is entitled "Invasion of Privacy" and subtitled "Interception of Communications". These titles in themselves support the position that the purpose of this part of the Criminal Code is to protect the natural interest of all individuals in their privacy. These provisions have made the interception of private communications an offence unless they are made either with consent of a participant in the conversation or in accordance with the procedure set out in the Criminal Code . In the case at bar no notice was given to Schimmens of the Crown's intention to use the intercepted conversations. Nor had there been a voir dire in order that the judge might determine whether the interception had been lawfully made as required by Charette v. The Queen, [1980] 1 S.C.R. 785.
The respondent Crown argued that there was no need to prove that the interception was lawfully made, as it was not intended to use it "against the originator" Schimmens but rather to impeach the credibility of the witness Jordan. Yet the Crown was doing far more than impeaching the credibility Jordan pursuant to s. 11 of the Canada Evidence Act, R.S.C., 1985, c. C-5 . The intercepted conversation was, in fact, being used against the originator Schimmens to destroy his alibi defence. It was the words of Schimmens and Jordan's replies to Schimmens that were read to her. The effect of the cross-examination with the intercepted conversations on the defence alibi was devastating. It led the trial judge in his charge to the jury to put forward the theory that the defence witnesses had lied under oath because they had been concocting the alibi story and to make the suggestion that the jury might consider the fabrication of evidence by an accused as a circumstance from which they could infer consciousness of guilt, although he emphasized it would not be conclusive evidence of guilt.
The effect of Jordan's cross-examination by means of the intercepted communications went far beyond an attack upon the credibility of the witness. In reality they were used as evidence against the accused in contravention of s. 178.16(4). Schimmens was the originator of the most damaging conversations and it was the content of those conversations which was used to rebut his sole defence of alibi. The use of the intercepted conversations in this way contravened the provisions of s. 178.16(4).
This was the view expressed by David Watt (now W