COURT OF APPEAL FOR ONTARIO

DATE: 20000425

DOCKET: C29225; C29323

CARTHY, CHARRON AND GOUDGE JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN
Respondent

• and -

YEUNG YUNG TAM
Appellant

Edward F. Hung
for the appellant

Fergus O’Donnell
for the respondent

Heard: March 6 and 10, 2000

On appeal from the conviction dated November 24, 1997 and
sentence dated February 23, 1998 of Zimmerman J.

GOUDGE J.A.:

[1] On November 24, 1997, His Honour Judge Zimmerman of the Ontario Court (Provincial Division) convicted the appellant of conspiring to traffic in a narcotic and possession of a narcotic for the purpose of trafficking. He subsequently sentenced the appellant on each count to nine years imprisonment to be served concurrently. The appellant was acquitted of conspiring to import a narcotic.

[2] At the conclusion of his conviction appeal, this court dismissed the appeal and indicated that its reasons would follow. Several days later, the court, differently constituted, dismissed his appeal from sentence.

[3] The reasons for dismissing the conviction appeal are as follows.

[4] The appellant raised two issues. First, he argued that the two findings of guilt constitute unreasonable verdicts. Second, he argued that the wiretap evidence which was vital to the Crown’s case was admitted contrary to s.189(5)(a) of the Criminal Code, R.S.C. 1986, c.C-46, because neither providing the accused with a copy of the actual tapes nor with a transcribed translation of the recorded conversations satisfies the requirement of that paragraph.

[5] The essence of the Crown’s case was that the appellant had participated in a scheme to import a shipment of heroin from Thailand to Canada and to arrange its delivery to a destination in Ontario for sale. The appellant testified that he discovered that the shipped package contained heroin only after it arrived in Canada and thereafter sought to extricate himself from the scheme but, fearing reprisal, did so in a way that would hide his objective from the leader of the conspiracy.

[6] The trial judge found that the evidence did not go far enough to prove the appellant’s knowledge of the contents of the package prior to it entering Canada. Thus he dismissed the charge relating to importing.

[7] The trial judge went on to conclude that, after learning that the package contained heroin, the appellant went to view it at the house where it was initially delivered and continued to make arrangements for the onward forwarding of the package to its ultimate recipient. By doing so, he continued to participate in the conspiracy.

[8] Moreover, the trial judge found that in attending to view the package and directing it onwards, the appellant exercised control over it sufficient to constitute possession.

[9] It is clear that the trial judge rejected the appellant’s assertions that he was only pretending to carry on with the scheme to avoid reprisal and that he distanced himself from physical contact with the package not to diminish the risk to himself, but to escape the conspiracy.

[10] In my view, it was entirely open to the trial judge to reject those parts of the appellant’s evidence and to reach the conclusions that he did. Those conclusions are reasonably and amply supported by the evidence. They reflect no misapprehension of that evidence. This ground of appeal must fail.

[11] The appellant’s second argument relates to s.189(5)(a) of the Criminal Code. It reads as follows:

The contents of a private communication
that is obtained from an interception of the
private communication pursuant to any
provision of, or pursuant to an authorization
given under, this Part shall not be received
in evidence unless the party intending to
adduce it has given to the accused reasonable
notice of the 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 out the full particulars of the
private communication, where evidence of the
private communication will be given viva
voce…

[12] In this case, a number of private communications were intercepted and taped pursuant to judicial authorizations provided to the police. These communications were in the Chinese language. Prior to trial, the Crown served on the appellant copies of the audio tapes containing the actual Chinese communications and transcripts of the English translation of the intercepted communications. At trial, the Crown proposed to prove the contents of these communications through the translator giving evidence about and identifying the transcribed translations which he had made.

[13] Following a voir dire, the trial judge ruled that the Crown had satisfied the requirement of s.189(5)(a) by providing the appellant with copies of the tapes. He went on to hold that both the tapes and the transcribed translations were admissible.

[14] On appeal, the appellant argued that s.189(5)(a) requires provision of a written copy of the Chinese words used in the conversation and that neither copies of the tapes themselves nor a written translation of the conversations sufficed.

[15] In my view, the trial judge was correct to conclude that the requirements of s.189(5)(a) were satisfied in this case.

[16] This section is not a penal provision of the Criminal Code. Rather, it establishes a statutory rule of evidence that defines a pre-condition for admissibility. Thus, it must receive an interpretation which best assures the attainment of its objectives. I agree with Bayda J.A. in R. v. Dunn et al. (1977) 1977 1512 (SK CA), 36 C.C.C. (2d) 495 at 509 (Sask. C.A.) who said this when speaking about the predecessor to this section:

It was contended for the respondents that the enactment is penal in nature, thus warranting a strict interpretation. In my respectful view, s.178.16(4)(a) is not a penal enactment. Its effect is simply to prescribe conditions which a party (either the prosecutor or the accused depending upon who desires the evidence adduced), must meet before an item of probative value may be received in evidence. As such, it is an enactment which lays down a rule of evidence. True, an application of it may lead to a penal consequence, but that is not sufficient to transform it into a penal enactment, justifying a strict interpretation. It seems to me that s.11 of the Interpretation Act, R.S.C. 1970, c.I-23, is relevant. It directs that the enactment shall be given such fair, large, and liberal construction in interpretation as best insures the attachment of its objects.

[17] The purpose of s.189(5)(a) is to provide the accused with timely disclosure of the evidence that may be tendered against him to enable him to prepare his defence.

[18] The paragraph addresses two circumstances: one, where the evidence of the communication is to be adduced in the form of the recording itself, in which case a transcript is to be served on the accused; and the other where the evidence of the communication is to be given viva voce, in which case the accused must receive full particulars of the communication.

[19] In this case, where the evidence of the private communication was to be given viva voce by the translator identifying the transcribed translations he had made, service of those translations satisfies the statutory requirement. These translations cover the entirety of the recorded communications. They constitute “a statement setting out full particulars of the private communications” as they are to be put in evidence. The legislative object is thus well met.

[20] While not necessary to meet the statutory pre-condition, it can be said that where evidence of the private communications will be given by means of a translation, the Crown’s general disclosure obligation would undoubtedly extend to the tapes themselves that were in the Crown’s possession. This would allow an accused to check the accuracy of the translation.

[21] In addition, it should be noted that an accused in these circumstances who feels that the particulars supplied are inadequate can move for further particulars pursuant to s.190 of the Criminal Code.

[22] In argument, the court was referred to a number of cases that have dealt with the issue of whether provision of a transcribed translation of an intercepted communication in a foreign language satisfies s.189(5)(a). Some have said yes1 and some have said no.2 The latter, however, all confine themselves to a consideration of whether a translation can constitute a “transcript” for the purposes of the subsection. They therefore do not speak to the case where, as here, the intercepted communication is in a foreign language but evidence of it is to be given viva voce by way of a translation. In these circumstances, as I have said, service of the transcribed translation is sufficient.

[23] While not necessary to dispose of this appeal, one further point perhaps deserves comment. Much of the argument before us addressed the meaning of “transcript” as it appears in s.189(5)(a). The case law is divided not only as to whether a transcribed translation qualifies, but as to whether a copy of the actual tape recording qualifies.

[24] This issue will arise where a private communication in a foreign language has been intercepted and the Crown proposes to adduce the tape recording itself. In such a case where the communication is reduced to written form in that foreign language, this clearly constitutes a transcript service of which satisfies the statutory pre-condition.

[25] In my view, service of a copy of the tape itself would also constitute service of the transcript of the communications. The New Shorter Oxford English Dictionary defines “transcript” to include a thing that has been transcribed, a written or printed copy, and a copy or reproduction. Indeed, given modern technology, one can imagine communications consisting not of words but solely of images. Where there are no words to be reduced to writing, provision of a copy would be essential. Moreover, where the Crown intends to adduce the actual tape recording, service of a copy of that tape best meets the legislative objective of giving the accused full disclosure of the case to be made against him. Finally, while the case law is divided, the preponderant view is that service of a copy of the tape constitutes service of a transcript of the communication for the purposes of the subsection.3

[26] However, I do not think the same is true where there is service of a transcribed translation of the communications and the evidence of the communication is to be given by adducing the tape recording itself. In those circumstances, I do not think service of the transcribed translation alone would meet the statutory pre-condition. The definition of “transcript” cannot be stretched to include “translation”. Nor can service of the translation meet the legislative objective of giving the accused full disclosure of the evidence to be tendered against him where that evidence consists of a foreign language tape recording.

[27] In this case, the Crown served the appellant with both a copy of the actual tape recording and a transcribed translation. Hence, pursuant to s.189(5)(a), the private communication could have been proved either by adducing the recording or, as it was, namely viva voce through the translator. Since the statutory pre- condition was clearly met here, this ground of appeal fails.

[28] For these reasons, the appeal from conviction is dismissed.

Released: April 25, 2000

“S.T. Goudge J.A.”

“I agree J.J. Carthy J.A.”

“I agree Louise Charron J.A.”

1 Date format is yyyymmdd

2 PUT IN CASE NUMBER – NOT LOWER COURT NUMBERS

1 R. v. Biasi et al. (1981), 1981 375 (BC SC), 62 C.C.C. (2d) 304 (B.C.S.C.); R. v. Ma, Ho and Lai (1975), 1975 1247 (BC SC), 28 C.C.C. (2d) 16 (B.C. Cty. Ct.); R. v. Johnny and Billy (1981), 1981 374 (BC SC), 62 C.C.C. (2d) 33 (B.C.S.C.); R. v. Jupiter, [1998] O.J. No. 2492 (Prov. Div.).

2 R. v. Chan et al., a judgment of the Ontario Court (General Division), released Sept. 28, 1994; R. v. Ng, [1996] O.J. No. 666 (Gen. Div.); R. v. Ho, [1998] O.J. No. 5248 (Prov. Div.); R. v. Oullette and Rioux (1976), 33 C.C.C. (2d) 416 (B.C. Prov. Ct.); R. v. Feng and Lee, a judgment of the Ontario Court (General Division), Sept. 11, 1995.

3 See R. v. Dass (1977), 1977 1936 (MB QB), 39 C.C.C. (2d) 465 (Man. Q.B.); R. v. Abazeid (1981), 1981 3249 (QC CS), 67 C.C.C. (2d) 373 (Que. Sup. Ct.); R. v. Ng, supra; R. v. Jupiter, supra; R. v. Bosada (No. 1), [1981] 6 W.C.B. 229 (Ont. H.C.J.)