Lyons v. The Queen

Lyons v. The Queen
Collection
Supreme Court Judgments
Date
1984-12-20
Report
[1984] 2 SCR 633
Case number
17181, 17193, 17196
Judges
Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio
On appeal from
British Columbia
Subjects
Criminal law
Evidence
Notes
SCC Case Information: 17196, 17181, 17193
Decision Content
SUPREME COURT OF CANADA
Lyons v. The Queen, [1984] 2 S.C.R. 633
Date: 1984-12-20
Kristine Lyons, John Prevedoros and Brian McGuire Appellants;
and
Her Majesty The Queen Respondent.
File Nos.: 17181, 17193, and 17196. 1983: June 23; 1984: December 20.
Present: Ritchie[*], Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law - Wiretaps - Admissibility of evi­dence - Interceptions authorized by court - Installa­tion of device involving trespass - Whether or not interceptions "lawfully made" - Whether or not evi­dence obtained admissible - Criminal Code, R.S.C. 1970, c. C-34, ss. 25, 178.1, 178.11(1), 178.12(1), 178.13(1), (2)(d), 178.16(1).
Evidence - Admissibility - Wiretap evidence - Operation to obtain evidence involving trespass - Whether or not evidence admissible.
Police officers, authorized to intercept appellants’ pri­vate communications, entered the residence of one of the appellants without consent to install a room monitoring device. None of the authorizations made reference to the manner of installing the device. Later, the appellants were tried and convicted on a charge of conspiracy to import a narcotic. Conversations intercepted by the monitoring device were introduced in evidence at trial and held admissible. The Court of Appeal dismissed appellants’ appeals but a dissenting judge concluded the evidence of the intercepted communications inadmissible in that the trespass made the interceptions not "lawfully made" within the meaning of s. 178.16(1) of the Crimi­nal Code. The appeals were based on this dissenting judgment.
Held (Dickson and Chouinard JJ. dissenting): The appeals should be dismissed.
Per Beetz, Estey, McIntyre and Lamer JJ.: Part IV.1 of the Criminal Code, when read as a whole, clearly contemplates, requires and authorizes, by necessary implication and unavoidable inference, the placing of a radio device on the premises where the intercept is to be made, where the use of radio equipment is authorized for the interception of a private communication. Modern surveillance techniques involve the invasion of property by directed energy to extract private communications and no express authorization for such "entry" on the target premises is found in Part IV.1. Parliament should not be taken to have authorized the use of procedures and equipment without, at the same time, supplying the public officers undertaking these duties with the appro­priate means and authority to carry them out.
The process of interception is a single undertaking carried out on authorization orders of the court and cannot be segmented into legally consequential and legally inconsequential steps. The evidence cannot be considered admissible on the one hand, and an attendant trespass, on the other, be left to be dealt with in later proceedings.
Parliament has broadly empowered the courts to authorize the use of devices to intercept designated communications. Since many of the devices allowed by the Code could not otherwise function as interception "devices", Parliament cast the section broadly so as to empower the court in its discretion to authorize the placing of a "device" inside the premises designated in the authorization, whether or not a trespass might occur and whether or not the owner of the premises was the person whose communications were to be intercepted. Parliament, however, foresaw the differences in the magnitude in the potential seriousness presented by the several interception procedures that Part IV.1 allows the court to authorize. Section 178.13(2)(d), therefore, by requiring the authorizing judge to include in the author­ization "such terms and conditions as the judge consid­ers advisable in the public interest", creates a judicial safeguard to balance the bilateral nature of Part IV.1-the shield from, and yet the instrument permitting, invasions of privacy. The authorization granted here was sufficiently broad to empower the law enforcement offi­cers both to plant and to service the device, even when both activities involved a physical entry into the targeted premises.
lnterceptions, if "lawfully made", can be admitted in evidence. The term, however, given its presence in Part IV.1 (a mini-Code within the codified criminal law) must be interpreted to mean in accordance with Part IV.1, as opposed to in conformity with all laws. Logical impossibilities result if "unlawful" is taken to refer to Criminal Code sections not in Part IV.1, let alone to all other laws. lt was unreasonable to read s. 178.16 as rendering interceptions inadmissible because external procedures used in the operation entailed entry which may have amounted to trespass. The physical entry here did not amount to a breach of Part lV.1, and in particu­lar, to a breach of s. 178.11. Indeed, once Parliament has granted the power to authorize and once that power has been exercised, the authorized conduct in law would no longer amount to trespass.
Per Dickson and Chouinard JJ., dissenting: A private communication that has been intercepted by means of any form of electronic surveillance is inadmissible pursuant to s. 178.16(1) of the Code unless the interception was "lawfully made". Thus, for the purposes of Part IV.1, the manner in which the evidence has been obtained is determinative of its admissibility.
An authorization to intercept private communications granted pursuant to Part IV.1 does not implicitly carry with it a right of entry to private premises and a judge does not possess any authority to include a right of entry as a term of an authorization pursuant to s. 178.13(2). The entries made by police to install and maintain the listening device for the purpose of intercepting the pri­vate communications in question were unauthorized and unlawful.
An interception of private communications accom­plished by means of an illegal entry to private premises is not "lawfully made" within the meaning of s. 178.16(1)(a). Parliament intended any breach of the right of privacy protected by Part IV.1 should be lawful in the widest sense. There is no justification for limiting the terms of s. 178.16(1)(a) to lawfulness in obtaining the authorization or in listening to and recording the conversation. The whole process of interception includ­ing the installation of the listening device, must be lawful.
As a result of the two covert entries, the interceptions of conversations were not "lawfully made" within the meaning of s. 178.16(1)(a) and therefore ought not to have been admitted as evidence. It follows that, as the appellants were convicted on the basis of inadmissible evidence, the appeals should be allowed and new trials directed.
[Dalla v. United States, 441 U.S. 238 (1979); United States v. Scafidi, 564 F.2d 633 (1977), approved; R. v. Papalia (1984), 47 O.R. (2d) 289, considered; R. v. Dass, [1979] 4 W.W.R. 97; Colet v. The Queen, [1981] 1 S.C.R. 2; Finnigan v. Sandiford and Clowser v. Cha­plin, [1981] 2 All E.R. 267; Morris v. Beardmore, [1981] A.C. 446, distinguished; Goldman v. The Queen, [1980] I S.C.R. 976; R. v. LeSarge (1975), 26 C.C.C. (2d) 388; R. v. Welsh and lannuzzi (No. 6) (1977), 15 O.R. (2d) 1, 32 C.C.C. (2d) 363, 74 D.L.R. (3d) 748; Clifton v. Bury (1887), 4 T.L.R. 8; Pickering v. Rudd (1815), 4 Camp. 219; Semayne’s Case (1604), 5 Co. Rep. 91 a; Eccles v. Bourque, [1975] 2 S.C.R. 739; Reference re an Application for an Authorization (1983), 5 D.L.R. (4th) 601, made in response to Re Application for Authorization to Intercept Private Communications, [1982] 6 W.W.R. 533, 31 C.R. (3d) 31; Re Anti-Inflation Act, [1976] 2 S.C.R. 373; Lower Mainland Dairy Products Board v. Turners Dairy Ltd., [1941] S.C.R. 573; Home Oil Distributors, Ltd. v. Attorney-General of British Columbia, [1940] S.C.R. 444; Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg AG, [1975] 1 All E.R. 810; Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191 (1931); Reference re Regulation and Control of Radio Communication, [1931] S.C.R. 541; Composers, Authors and Publishers Association of Canada Ltd. v. CTV Television Network Ltd., [1966] Ex. C.R. 872; R. v. Steinberg, [1967] 1 O.R. 733; Olmstead v. United States, 277 U.S. 438 (1928); Berger v. New York, 388 U.S. 41 (1967); R. v. McQueen (1975), 25 C.C.C. 262, referred to.]
APPEALS from a judgment of the British Columbia Court of Appeal (1982), 69 C.C.C. (2d) 318, dismissing appellants’ appeals from their con­viction by Fisher Co. Ct. J. (1979), 52 C.C.C. 113, for conspiring to import cocaine. Appeals dismissed, Dickson and Chouinard JJ. dissenting.
Howard Rubin and E. Ann Cameron, for the appellant Lyons.
John D. Banks, for the appellant Prevedoros. Derek A. Brindle, for the appellant McGuire.
Douglas J. A. Rutherford, Q.C., and S. David Frankel, for the respondent.
The reasons of Dickson and Chouinard JJ. were delivered by
DICKSON J. (dissenting)-The question is whether the trial judge erred in admitting into evidence certain private communications intercepted through the use of a room monitoring device installed surreptitiously by police officers in the home of the appellant, Kristine Lyons. The case raises, in part, the very important issues presented in the Reference Pursuant to Section 27(1) of the Judicature Act, Chapter J-1 of the Revised Stat­utes of Alberta, 1980, as amended, referred by Order in Council (O.C. 84/83) of the Lieutenant Governor in Council dated the 2nd day of Febru­ary, A.D. 1983, to the Court of Appeal of Alberta, [1984] 2 S.R.C. 697 (hereinafter the Wiretap Reference). Judgment in the instant case was delayed pending hearing of argument upon, and determination of, the Wiretap Reference. As well, this Court has considered judgments delivered subsequently in two provincial appellate courts relevant to the Wiretap Reference and the present appeals. Judgment in the Wiretap Reference is being delivered concurrently herewith.
I The Facts
Police obtained a series of authorizations and renewals to intercept private communications of the appellants and other persons at, among other places, Kristine Lyons’ home, 1207 Nanton Avenue, Vancouver, British Columbia. The authorizations and renewals collectively covered the period between August 25, 1977 and February 13, 1978. All of the authorizations contained the following stipulation:
The type of private communications that may be inter­cepted are all telecommunications and oral communica­tions.
None of the authorizations made reference to the manner of installing the listening device. Accord­ingly, none purported to expressly authorize trespass.
On November 2, 1977 four police officers, with-out consent, entered the residence at 1207 Nanton Avenue to install a room monitoring device. They were there about two hours. The transmitter oper­ated continuously thereafter, and was capable of intercepting not only telephone communications, but also all conversations within the room. Not all conversations were recorded by the police. On December 19, 1977, three police officers, without consent, again entered 1207 Nanton Avenue, to change the batteries in the monitoring device. They stayed for about an hour.
The appellants and one David Fladgate were tried and convicted before His Honour Judge Fisher on a charge of conspiracy to import a narcotic (cocaine). At trial, evidence was intro­duced of ten conversations intercepted between November 6, 1977 and December 30, 1977 by the above-mentioned monitoring device.
lI The Court of Appeal Decision
The accused appealed their convictions to the British Columbia Court of Appeal on several grounds. The appeals of Lyons, Prevedoros and McGuire were dismissed. The Court was unani­mous on all but one of the grounds. The point of disagreement concerned the issue of whether the trespass to install the room monitoring device ren­dered the intercepted private communications inadmissible in evidence.
Hinkson J.A., Macdonald J.A. concurring, wrote for the majority. He said the trespass did not vitiate the authorization. While any wrongful acts committed in the carrying out of the authorization could be the subject of criminal or civil proceedings, such wrongful acts did not affect the admissi­bility of the evidence of private communications.
Anderson J.A. dissented on this point. He con­cluded that authorizations to intercept private communications could not and did not authorize a trespass. He also held that the installation of the monitoring device was part of the interception. An unlawful trespass made the interception not "law-fully made" and this, by virtue of s. 178.16(1) of the Criminal Code, rendered the evidence of the private communications inadmissible. Anderson J.A. would have ordered a new trial. The case reaches this Court by virtue of Anderson J.A.’s dissent on a point of law (s. 618(1)(a) of the Criminal Code). III The Questions At Issue
The trial in this case arose prior to the procla­mation of the Canadian Charter of Rights and Freedoms . Therefore, the case raises only ques­tions of statutory interpretation. The reach of Part IV.1 of the Criminal Code, bearing the rubric "Invasion of Privacy", is at issue.
The majority of the Court of Appeal held that surreptitious entry to install the listening device did not vitiate the authorization to intercept com­munications at 1207 Nanton Avenue. Assuming this conclusion to be correct, it does nothing to resolve the question of the admissibility of the evidence garnered as a result of this electronic interception.
In considering the admissibility of evidence of private communications, the starting point is s. 178.16(1) of the Criminal Code:
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. [Emphasis added.]
For the reasons I have already given in the Wiretap Reference, it is my view that Parliament did not intend in Part IV.1 of the Criminal Code to authorize the police to trespass to install a listening device. Accordingly, an authorization does not implicitly carry with it a right of entry to private premises. And equally, a judge does not possess any authority to include a right of entry as a term of an authorization pursuant to s. 178.13(2).
No express authority to trespass to install the listening device was even purportedly granted in the authorization and renewals obtained by the police in this case. Since the authorizations do not implicitly permit the police to enter a place where they propose to intercept oral communications, it follows that the two trespasses involving 1207 Nanton Avenue were not lawful.
The question to be resolved is whether the inter­ceptions of private communications, accomplished by means of the illegal entry to install the listening device, were "lawfully made" within the meaning of s. 178.16(1) and hence admissible in evidence.
IV Admissibility of the Intercepted Conversations
ln R. v. Wray, [1971] S.C.R. 272, the majority of this Court held that the criterion for determin­ing the admissibility of evidence was its relevance, not the manner in which it was obtained. Thus, according to the majority, the fact that evidence had been unlawfully obtained did not affect admissibility unless the evidence was highly pre-judicial and of trifling weight. If the Wray rule were to apply, the conclusion that the trespass to install the listening device was unlawful would not affect the admissibility of the intercepted private communications.
It may be that s. 24(2) of the Canadian Charter of Rights and Freedoms will now modify the rule in Wray. I make no comment one way or the other on that possibility. It cannot assist the appellants in the present case. Quite aside from the Charter , however, it is clear that Parliament has explicitly set aside the Wray rule in the context of electronic surveillance by enacting s. 178.16(1) (a) which, it will be recalled, makes a private conversation that has been intercepted inadmissible unless the inter­ception was lawfully made. For purposes of Part IV.1, therefore, not only is the manner in which evidence has been obtained relevant for its admis­sibility, legality has become the sine qua non for admissibility.
This Court has previously recognized in R. v. Commisso, [1983] 2 S.C.R. 121, that Parliament has enacted in s. 178.16 an exclusionary rule which is an exception to the general rule that unlawfully obtained evidence is nevertheless ad­missible. The issue in that case, simply put, was whether an authorization to intercept private com­munications in respect of one offence was suffi­cient to render lawful interceptions in respect of a different offence. The majority, speaking through Lamer J., concluded it was; I wrote dissenting reasons for the minority concluding it was not.
Of importance for the resolution of this case is the unanimous agreement of the Court that only those private communications which have been lawfully obtained may be admitted in evidence. Lamer J. recognized the important concern for individual privacy that moved Parliament to enact s. 178.16, at p. 125:
In order to discourage unlawful invasions of the priva­cy of citizens, Parliament not only made it an indictable offence but also enacted an exclusionary rule which is an exception to the general rule that unlawfully obtained evidence is nevertheless admissible.
To much the same effect, I wrote, at p. 134:
The unique legislative treatment of electronic surveillance is a reflection of its nature. The modern technolo­gy is both powerful and unobtrusive. The technology permits massive invasion of the privacy with ease. It is also indiscriminate about the content of any communi­cation intercepted. Parliament has determined that this potential constitutes a threat to individual freedom and the right to privacy. The evidentiary rule of exclusion fortifies the stipulation that interceptions of private communications are illegal unless specified conditions are met.
In R. v. Dass, [1979] 4 W.W.R. 97 (Man.C.A.), Huband J.A. took another view of this requirement of legality. Although holding that Part IV.1 did not authorize a trespass, he concluded that evidence obtained thereby was admissible. The essence of his reasoning appears at pp. 115-16:
The fact that there has been a trespass or some other civil or, indeed, criminal wrong in the planting of the device does not invalidate the authorization to intercept, and thus does not render the interception unlawful. The authorization granted by the court is an authorization to intercept private communications. How that authoriza­tion is carried out is not germane to the issue of the admissibility of the evidence flowing from the intercep­tion. If a trespass has been committed, then those who have committed the trespass will be answerable in some other criminal or civil forum.
... if a trespass is committed the evidence thus obtained will be admissible (subject to the usual rules governing admissibility), since it was obtained pursuant to an authorization and thus falls under the second of the four exceptions to the general prohibition against intercep­tions contained ins. 178.11(2).
The installation of the device is not part of the intercep­tion. If the installation is unlawful, in that there has been a contravention of civil or criminal law in the placement of the device, the lawfulness of the intercep­tion is not affected.
With respect, I cannot agree. In my view Huband J.A.’s conclusions, which were applied by the majority of the Court of Appeal in this case, conflict both with the express language of Part IV.l and with the statutory scheme thereby enacted.
As mentioned earlier, it may well be true, as Huband J.A. asserts, that a trespass in planting the listening device does not invalidate the authori­zation to intercept. At most, however, this would allow the person making the interception to avail himself of s. 178.11(2) in order to avoid criminal liability for what would otherwise be an indictable offence under s. 178.11(1). With respect, this does not however lead to the conclusion that the inter­ception was therefore rendered lawful. I see no reason in the language or in the purpose of Part 1V.I to read the provision in s. 178.16(1)(a) that an interception must be "lawfully made" as refer-ring only to lawfulness in obtaining the authoriza­tion. On the contrary, in view of the fact that such evidence is prima facie inadmissible and that the subsection is to be found in the context of a meticulously articulated set of provisions permitting only a limited breach of the individual’s right of privacy, these words should be given their full and literal meaning. It seems manifest to me that Parliament intended any breach of the right of privacy, protected by Part IV.1, be lawful in the widest sense. In my view, absent a valid consent, the surreptitious physical invasion of a home when undertaken by police for the purposes of installing, maintaining, repairing, or removing room monitoring devices renders any private communication that has been intercepted not "lawfully made", within the mean­ing of s. 178.16(1)(a) of the Criminal Code.
In my opinion, it is not possible to separate the installation of the listening device from the process of listening to and recording conversations, so as to include only the latter in the process of intercep­tion. This is an artificial and unrealistic distinc­tion. That interception must go beyond mere lis­tening and recording not only conforms with common sense, it is a necessary consequence of the wording of s. 178.16(l). The section demands that the interception be lawfully made. It is the whole process of interception which is referred to and that must therefore be lawful. Installation is indis­pensible to interception. It must on any reasonable reading be part of the making of an interception. An interception accomplished by means of an unlawful entry cannot have been "lawfully made".
The New Brunswick Court of Appeal has recently reached the same conclusion on the admissibility of any private communication obtained as a result of an illegal entry: R. v. Hardy (1984), 56 N.B.R. (2d) 417, 146 A.P.R. 417. In Hardy, the authorization given by the judge expressly permitted the police to enter the Hardy residence "where reasonably necessary" for the interception of oral communications. The police had surreptitiously entered and planted a room-monitoring device which allowed them to intercept the private communications in issue.
Stratton J.A. (Hughes C.J. concurring), decided that Part IV.1 of the Code did not give any express authority to a judge to authorize a trespass onto private property for the purpose of installing lis­tening devices, nor could such authority be implied. He concluded the illegal entry of the law enforcement officers into the Hardy residence ren­dered the intercepted private communications inadmissible.
In reaching-this conclusion, he made the follow­ing comment, upon the case at bar and the Dass case, with which I am in respectful agreement:
As I read these decisions, they seem to turn on a narrow interpretation of the word "interception" so that the conduct of the police in installing monitoring devices is not part of the interception. I have difficulty in agreeing with the interpretation that "interception" does not include the method of its execution. Rather, I would respectfully adopt the dissenting view of Anderson, J.A. in the Lyons case that the "interception" of a private communication includes not merely the listening to or recording of a private communication but also the means used to acquire the private communication.
Angers J.A., in separate reasons, decided that it lay within the power of a judge acting under s. 178.13 to authorize entry, however, the particular wording of the authorization was not sufficiently clear to satisfy him that the entry the police had actually made was authorized by the order grant-ed. He agreed that the interception was not lawful­ly made and the evidence was inadmissible.
In R. v. Papalia (1984), 47 O.R. (2d) 289, the Ontario Court of Appeal did not need to decide the question of whether an unlawful interception renders the private communication so obtained inadmissible. The unanimous Court held that an authorization, by necessary implication, carries with it the power to trespass to install a listening device and therefore the interceptions in issue were lawfully made. It is notable, however, that Brooke J.A. agreed with the conclusion of Anderson J.A. in the instant case, that the installation of the listening device is part of the interception process. V Conclusion
I conclude that, as a result of the two covert entries, the interceptions of conversations at 1207 Nanton Avenue were not "lawfully made" within the meaning of s. 178.16(1)(a) and ought there-fore not to have been admitted as evidence. It follows that the appellants were convicted on the basis of inadmissible evidence and I would accord­ingly allow the appeals and direct new trials for each of the appellants.
The judgment of Beetz, Estey, McIntyre and Lamer JJ. was delivered by
ESTEY J.-The appellants were convicted on a charge of conspiring to import cocaine into Canada contrary to s. 423(1)(d) of the Criminal Code of Canada. The issue raised in this appeal turns on the admission into evidence of intercep­tions made pursuant to an authorization granted under s. 178.13 of the Criminal Code. The Canadian Charter of Rights and Freedoms need not be addressed as the trial in this case arose prior to its proclamation. The interception evidence was obtained pursuant to an authorization issued by Bouck J. on August 25, 1977 and pursuant to a subsequent authorization issued by Toy J. on December 16, 1977. The appeal proceeded in the Court of Appeal and in this Court on the basis of an agreed statement of facts in which the following salient facts are set forth:
On November 2, 1977, police officers entered the residence of the Appellant LYONS (which was also, on occasion, that of the Appellant PREVEDOROS), at 1207 Nanton Avenue, in the City of Vancouver, for the purpose of installing a device which would permit them to monitor and record oral communications taking place within the premises.
On December 19, 1977, police officers entered 1207 Nanton Avenue for the purpose of replacing the batter­ies powering the transmitter and also to look for a place to install another such device.
The police had not obtained permission of anyone connected with 1207 Nanton Avenue to enter that residence on November 2 and December 19, 1977. They relied solely on the Authorizations and Renewals which they had obtained.
The regularity in substance and in form of the authorizing orders is not under challenge. The sole issue arising is whether or not the entry into the premises of the accused Lyons for the purpose of installing a radio transmitter and subsequently to renew its batteries rendered inadmissible evidence of the interceptions subsequently made pursuant to these authorizations.
The authorization of August 25, after setting out the offences in respect of which private com­munications may be intercepted, provided:
b) The type of private communications that may be intercepted are all telecommunications and oral communications.
c) The identities of the known persons whose private communications may be intercepted are,
(i) Kristine LYONS 1207 Nanton Avenue Vancouver, British Columbia
The order then continued:
d) The private communications of persons whose iden­tities are not known as of the date hereof which may be intercepted are,
those persons who resort to or use the premises described in sub-paragraph (c) hereof, or
those persons who are in communication with the persons described in sub-paragraph (c) hereof apparently with respect to an offence mentioned in paragraph (a) hereof
which private communications may be intercepted at any of the premises hereinbefore described and any place or premises in the Province of British Columbia resorted to or used by the persons described in sub-paragraph (c) hereof and in respect of any place of which a general description cannot be given the manner of interception that may be used is interception by means of any electromagnetic, acoustic, mechanical or other device. The private communications of such per-sons as described whose identities are unknown at the date hereof may be intercepted during the period for which this authorization is valid notwithstanding that during such period their identities may become known. It will be noted that in subparagraph (d) the order provided that " …. the manner of interception that may be used is interception by means of any electromagnetic, acoustic, mechanical or other device". The order of Toy J. also authorized the interception of the private communications of the appellant Lyons as well as the appellants Pre­vedoros and McGuire. This order differs somewhat from the first authorization in matters not conse­quential to these proceedings.
The trial judge admitted ten interceptions made with respect to the appellants and others from November 6, 1977 to December 30, 1977.
The majority of the Court of Appeal [(1982), 69 C.C.C. (2d) 318] speaking through Hinkson J.A., after reviewing the judgment of this Court in Goldman v. The Queen, [1980] 1 S.C.R. 976, concluded at p. 328 that " …. even where the police have committed a trespass to install a room-monitoring device, …. the evidence is admissible". The majority also concluded at p. 329:
When in the course of doing so the police commit acts which amount to wrongful acts, such acts may give rise to civil or criminal proceedings against them. But such acts do not vitiate the court order authorizing the inter­cept. Therefore the evidence is admissible pursuant to s. 178.16(1) of the Code.
Anderson J.A. dissented for the reason that an interception pursuant to an authorization is only admissible as evidence if it is "lawfully made" in the words of s. 178.16(1)(a), infra, of the Criminal Code and that such is not the case where the interception results from trespass.
In my opinion, an "interception" is only "lawfully made" if it is made in accordance with the authorization granted. The "interception" of a "private communica­tion" is not merely "listening to or recording a private communication" but includes the means used to "acquire" the "private communication"... .
Furthermore, Anderson J.A. was of the view that the authorizing court had no power to authorize the police to act in an unlawful manner and conse­quently, whether or not the order expressly author­ized or implicitly permitted trespass, the result is the same: the evidence obtained by the intercep­tion is inadmissible. In part this conclusion was reached by interpreting the words "manner of interception" as they are found in s. 178.13(2)(c) to mean "a lawful manner of interception". The position in dissent is succinctly stated, at p. 348:
In summary, I would hold as follows:
(I) Private communications are not admissible unless "the interceptions were lawfully made", namely, in accordance with the authorizations granted.
(2) The "interception" process includes the mode of execution or procedure set out in the authorization including the installation and maintenance of moni­toring devices.
(3) A police officer does not act in accordance with an authorization when he carries out the instructions of the authorizing judge in an unlawful manner, namely, by unlawfully trespassing to install and maintain the monitoring devices.
The determination of the issue raised in this appeal depends upon the construction placed upon Part IV.I, particularly ss. 178.l, 178.11, 178.12, 178.13 and 178.16 of the Criminal Code. These provisions 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);
"intercept" includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof;
"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.
178.12 (1) 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 ….
(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, addresses and occupations, 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, a general description of the nature and location of the place, if known, at which private communications are proposed to be intercepted and a general description of the manner of interception proposed to be used;
178.13… .
(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, generally describe the place at which private communications may be intercepted, if a general description of that place can be given, and 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 sixty days, set forth therein.
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.
(2) Notwithstanding subsection (1), the judge or magistrate presiding at any proceedings may refuse to admit evidence obtained directly or indirectly as a result of information acquired by interception of a private communication that is itself inadmissible as evidence where he is of the opinion that the admis­sion thereof would bring the administration of jus­tice into disrepute.
(3) Where the judge or magistrate presiding at any proceedings is of the opinion that a private communication that, by virtue of subsection (1), is inadmissible as evidence in the proceedings
(a) is relevant to a matter at issue in the proceedings, and
(b) is inadmissible as evidence therein 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,
he may, notwithstanding subsection (1), admit such private communication as evidence in the proceedings.
Part IV.1 was introduced into the Criminal Code by 1973-74 (Can.), c. 50. There were sub­stantial amendments enacted in 1976-77 (Can.), c. 53. That which concerns this appeal is the amendment to s. 178.13(2), supra, which prior to 1977 read:
178.13.. .
(2) An authorization shall
…
(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;
It will be seen that prior to the amendment, it was only necessary to describe the place where the interception was to be undertaken where the iden­tity of the persons whose private communications were to be intercepted was unknown. More impor­tantly, it was only necessary to generally describe the manner of interception when the place of interception could not be given. Under the present form of the subsection, all this information must be given and the obligation to advise as to the manner of interception is not conditional upon any other knowledge or information in the possession of the person seeking the authorization. This would appear to reveal a much more specific legis­lative intent with reference to the breadth of au­thority assigned by Parliament to the court in granting interception authorizations, and a com­mensurate entitlement in and a burden on the court to know the scope of investigation to be authorized.
The plan of Part IV.1, the "Invasion of Privacy" provisions of the Criminal Code, is directed both to protecting, and to invading, the privacy of the individual. The very presence of Part IV.1 in the Code is a recognition of these opposing needs in relation to criminal law which, of course, falls exclusively in the domain of Parliament under s. 91(27) of the Constitu