R. v. Commisso, [1983] 2 S.C.R. 121

Supreme Court of Canada

R. v. Commisso, [1983] 2 S.C.R. 121

Date: 1983-10-13

Her Majesty The Queen Appellant;

and

Cosimo Commisso Respondent.

File No.: 16915.

1982: November 18; 1983: October 13.

Present: Laskin C.J. and Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Evidence—Admissibility—Interception of private communications—New offence suspected during course of investigation—New offence not specified in renewed authorization—Whether communications intercepted after renewal and relating to new offence admissible—Criminal Code, R.S.C. 1970, c. C-34 (as amended by 1973-74 (Can.), c. 50, s. 2; 1976-77 (Can.), c. 53, ss. 7 to 12), ss. 178.1, 178.2, 178.11, 178.12, 178.13, 178.16, 178.22.

Appellant was convicted of conspiring to possess counterfeit money. At trial, the evidence relating to the offence was adduced through lawful interceptions of private communications made pursuant to a renewed authorization that related only to narcotics offences. Prior to the renewal, the police had suspected that the appellant was conspiring to possess counterfeit money but did not apply for an authorization to intercept communications with respect to that offence. The majority of the Court of Appeal held the evidence inadmissible and quashed the conviction. This appeal is to determine whether an authorization to intercept private communications in respect of one offence is sufficient to render lawful interceptions in respect of a different offence, in circumstances where the interceptions in respect of the different offence were anticipated at the time the authorization was obtained.

Held (Ritchie, Dickson, Chouinard and Wilson JJ. dissenting): The appeal should be allowed.

Per Laskin C.J. and Beetz, Estey, McIntyre and Lamer JJ.: When an authorization to intercept private communications is lawfully obtained—i.e. pursuant to and in compliance with s. 178.13 of the Criminal Code—any intercepted conversation which discloses evidence relating to offences not specified in the authorization is admissible in support of charges relating to those offences. The interception need not be “unanticipated”.

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The distinction between “anticipated” and “unanticipated” interception is nowhere to be found in s. 178.16(3.1) of the Code.

[R. v. Welsh and Iannuzzi (No. 6) (1977), 1977 CanLII 1215 (ON CA), 32 C.C.C. (2d) 363; United States v. Cox, 449 F.2d 679 (1971); R. v. Rouse and McInroy (1977), 1977 CanLII 1937 (BC CA), 39 C.R.N.S. 135; R. v. Miller and Thomas (No. 4) (1975), 1975 CanLII 1310 (BC SC), 28 C.C.C. (2d) 128; R. v. Patterson, Valois and Guindon (1976), 1976 CanLII 1416 (ON SC), 31 C.C.C. (2d) 352, referred to.]

APPEAL from a judgment of the British Columbia Court of Appeal, 1982 CanLII 243 (BC CA), [1982] 2 W.W.R. 154, 134 D.L.R. (3d) 214, 66 C.C.C. (2d) 65, allowing appellant’s appeal from his conviction for conspiracy to possess counterfeit money. Appeal allowed, Ritchie, Dickson, Chouinard and Wilson JJ. dissenting.

J.D. Taylor, for the appellant.

Marc Rosenberg, for the respondent.

The judgment of Laskin C.J. and Beetz, Estey, McIntyre and Lamer JJ. was delivered by

LAMER J.—The accused was tried and convicted by a jury in Vancouver of conspiring to possess counterfeit money. He appealed his conviction to the British Columbia Court of Appeal and an acquittal was entered. Craig J.A., dissenting on a question of law, would have upheld the conviction. The Crown is now appealing to this Court as of right pursuant to s. 621(1)(a) of the Criminal Code of Canada.

THE FACTS

The facts need not, for the purpose of this appeal, be set out fully. The evidence adduced against the accused was essentially that of telephone conversations intercepted by the police through the use of “wiretapping equipment”. It is agreed by all that if this evidence is, as was found by the Court of Appeal, inadmissible, then the Crown’s appeal should fail and the acquittal stand; if to the contrary then the jury’s conviction should be restored.

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The police had started out investigating narcotics offences and, on May 14, 1976, were authorized under s. 178.13 of the Criminal Code to intercept the private communications of persons other than the accused. As a result of interceptions, the police became suspicious that the brother of the accused and others were involved in a conspiracy with respect to counterfeit money. On July 9, 1976, the “narcotic authorization” was renewed. Prior to this renewal, the police had consulted Crown counsel with the object of applying for an authorization under s. 178.12 to intercept communications with respect to the counterfeiting offence. They were advised by the Crown that this was not necessary. The evidence relating to the conspiracy to possess counterfeit money, the admissibility of which is at issue in this case, was adduced through interceptions that were made pursuant to the renewed authorization for the investigation of the narcotic conspiracy.

Of importance in this appeal is the fact that it was admitted by all that the authorizations and renewals were properly obtained in accordance with the provisions of the Criminal Code and that no witnesses need be called to prove their validity. It is further admitted that on or about July 4, 1976, the investigators suspected that co-conspirators named Gallo and Magisano were conspiring with Remo Commisso with respect to counterfeit money, and suspected that Gallo and Magisano were using the code word “ceramics” for counterfeit money, but did not believe they had grounds for applying for an authorization until July 9, 1976, the date of the renewal. Finally, respondent admits that the police officers were continuing a bona fide investigation on the suspected heroin offence at the time they heard the conversations they adduced in evidence in the counterfeit charge.

THE LAW

Part IV.1 of the Criminal Code is titled “Invasion of Privacy”. This chapter was introduced in 1974. However uncertain the state of the law prior

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to that enactment, Parliament for the protection of the citizens’ privacy then made it a crime to wilfully intercept a private communication by means of an electromagnetic, acoustic, mechanic or other device. Recognizing however the need to assist the police in the detection of crime, Parliament has under certain circumstances and under judicial control set out procedures under which interceptions may be lawful. The police, when investigating certain offences, may be authorized by a judge to invade the privacy of certain citizens, if the conditions set out in s. 178.13 are met. (I am referring to the law as it was at the time of the interception.)

178.13 (1) An authorization may be given if the judge to whom the application is made is satisfied that it would in the best interests of the administration of justice to do so and that

(a) other investigative procedures have been tried and have failed;

(b) other investigative procedures are unlikely to succeed; or

(c) the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

(2) An authorization shall

(a) state the offence in respect of which private communications may be intercepted;

(b) state the type of private communication that may be intercepted;

(c) state the identity of the persons, if known, whose private communications are to be intercepted and where the identity of such persons is not known, generally describe the place at which private communications may be intercepted or, if a general description of that place cannot be given, generally describe the manner of interception that may be used;

(d) contain such terms and conditions as the judge considers advisable in the public interests; and

(e) be valid for the period, not exceeding thirty days, set forth therein.

(2.1) The Solicitor General of Canada or the Attorney General, as the case may be, may designate a person or persons who may intercept private communications under authorizations.

(3) Renewals of an authorization may be given from time to time by a judge of a superior court of criminal jurisdiction or a judge as defined in section 482 upon

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receipt by him of an ex parte application in writing signed by the Attorney General of the province in which the application is made or the Solicitor General of Canada or an agent specially designated in writing for the purposes of section 178.12 by the Solicitor General of Canada or the Attorney General, as the case may be, accompanied by an affidavit of a peace officer or public officer deposing to the following matters, namely:

(a) the reason and period for which the renewal is required, and

(b) full particulars, together with times and dates, when interceptions, if any, were made or attempted under the authorization, and any information that has been obtained by any interception,

and supported by such other information as the judge may require.

(4) A renewal of an authorization may be given if the judge to whom the application is made is satisfied that any of the circumstances described in subsection (1) still obtain, but no such renewal shall be for a period exceeding thirty days.

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:

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 communica-

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tion 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.

(3.1) A private communication that has been intercepted and that is admissible as evidence may be admitted in any criminal proceeding or in any civil proceeding or other matter whatever respecting which the Parliament of Canada has jurisdiction, whether or not the criminal proceeding or the civil proceeding or other matter relates to the offence specified in the authorization pursuant to which the communication was intercepted.

(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.

(5) Any information obtained by an interception that, but for the interception would have been privileged, remains privileged and inadmissible as evidence without the consent of the person enjoying the privilege.

It is agreed by all that, though the enactment of s. 178.16(3.1) was subsequent to the interception, the section is applicable in the determination of this appeal.

As appears from a reading of the section, a private communication is admissible as evidence if the interception was lawfully made, and it is lawfully made if pursuant and in compliance with an authorization under s. 178.13.

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Accused takes the position that a private communication is inadmissible “on the trial of one offence when it is obtained after renewal of an authorization for a different offence at a time when there were grounds to obtain an authorization for the offence with which the accused is being tried”. Accused in taking this position reads s. 178.16(3.1) as rendering admissible only “windfall” evidence and argues that it was not intended “to render admissible private communications relating to an offence which was not unexpected”.

McKay J. at trial disagreeing said:

It seems to me that in light of the concession that the investigation into the heroin conspiracy continued on after June 30th, 1976, and in light of the fact that the disputed evidence in this case was discovered while valid renewals relating to the heroin conspiracy were in existence, that the reasoning in Welsh and Iannuzzi (No. 6) applies, and that the evidence is admissible, and I so hold.

R. v. Welsh and Iannuzzi (No. 6) reported at (1977), 1977 CanLII 1215 (ON CA), 32 C.C.C. (2d) 363 is a decision of the Ontario Court of Appeal. Zuber J.A. writing for the Court (Jessup, Arnup, Martin and Wilson JJ.A.), when dealing with the issue relevant to this case, concluded in the following terms, at pp. 373-74:

In my opinion, an interception complies with both the Code and the authorization if it is made in respect to a stated offence, i.e., for the purpose or object of investigating or gathering evidence with respect to the named offence. The fact that the pursuit of the objective of the authorization reveals evidence of other crimes does not affect the lawful character of the interception. It cannot be said that the evidence in this case is rendered inadmissible on this ground.

Prior to his conclusion, where no mention of a distinction between “windfall” and “anticipated” evidence is made, he had reviewed Canadian case law and then referred to an American case, United

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States v. Cox, 449 F.2d 679 (10th. Cir., 1971), and quoted Doyle Cir. J., at pp. 686-87:

Once the listening commences it becomes impossible to turn it off when a subject other than one which is authorized is overheard. It would be the height of unreasonableness to distinguish between information specifically authorized and that which is unanticipated and which develops in the course of an authorized search such as that involved here. It would be irrational to hold that officers authorized to listen to conversations about drug traffic, upon learning that a bank robbery is to occur, must at once close down the project and not use the information to prevent the robbery since the information is tainted. It would be demoralizing to allow the bank to be robbed while the investigators stood by helpless to prevent the occurrence. Harder cases can be imagined. For example, in electronic surveillance of organized criminals involved in gambling, information might be intercepted disclosing a conspiracy to commit murder. Surely the officials must be empowered to use this information notwithstanding the lack of specific prior authorization.

(Emphasis added.)

Zuber J.A. then added:

The force of these words is not diminished by the procedural and constitutional differences which interlace this case.

The fact that s. 178.16(3.1) was subsequently enacted and that no such distinction as that suggested by Circuit Judge Doyle is to be found in the section should not be overlooked.

In the second line of subs. (3.1) it is stated that an intercepted communication that is “admissible as evidence may be admitted … whether or not the criminal proceeding … relates” to an offence different than the one mentioned in the authorization. If the word “admissible” is construed as meaning “admissible under the preceding subsections of 178”, then the section means nothing because Iannuzzi has already interpreted unanticipated evidence revealing new offences as being included in s. 178 prior to subs. (3.1). Consequently, the inclusion of subs. (3.1) of the expression

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“may be admitted” necessarily adds something to s. 178. If it adds the concept that the unanticipated statement (unlike Iannuzzi) is related to suspected offences under investigation when the authorization is taken out, then the effect of subs. (3.1) may be to make unnecessary any compliance with s. 178 with reference to this second offence.

In the Court of Appeal for British Columbia Lambert J.A., reading R. v. Rouse and Mclnroy (1977), 1977 CanLII 1937 (BC CA), 39 C.R.N.S. 135, R. v. Miller and Thomas (No. 4) (1975), 1975 CanLII 1310 (BC SC), 28 C.C.C. (2d) 128, and also R. v. Welsh and Iannuzzi as adopting a distinction between “anticipated” and “unanticipated” evidence said:

In short, it is my opinion that the rule which permits the introduction of evidence with respect to an offence not specified in the authorization, but which turns up unexpectedly in the course of the interception, does not extend to evidence with respect to an offence that is being investigated at the time of the authorization or at the time of a renewal and that is intercepted after that authorization or that renewal. To decide otherwise would permit a single authorization to spread to offences and persons never contemplated by the authorizing judge who is charged with the responsibility for applying the rigorous tests established by the Protection of Privacy sections of the Criminal Code.

Craig J.A., reading R. v. Rouse and Mclnroy differently took the following position:

I think that once a Court has authorized an interception any intercepted conversation which discloses any criminal offence is admissible in evidence in support of a charge relating to that offence even though the authorization did not specifically authorize an interception for the offence which has been incidentally disclosed in the interception.

I agree with Craig J.A., and I am of the view that this appeal should succeed. The distinction that we are invited to make is not found in the wording of s. 178.16(3.1) which is unambiguous.

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This is all the more significant as that section was enacted after R. v. Rouse and Mclnroy and R. v. Welsh and Iannuzzi. There are however other equally compelling reasons to support Craig J.A.’s view.

The exclusionary rule’s purpose is to discourage unlawful invasions of privacy. If the privacy is being invaded through a lawful interception the exclusionary rule has lost its purpose. It is not the subject matter of conversations that is sought to be protected, but the privacy of those conversing. This is assuming, as is not contested in this case, that the initial authorization had been lawfully obtained in good faith, that the investigation on heroin, as was conceded, was still going on, and that the renewal for that offence had been lawfully obtained. That admission by the respondent as regards the renewal is of capital importance. Indeed for the renewal to be lawful the judge must be given at the time of the renewal under s. 178.13(3) an affidavit setting out, amongst other information,

(b) full particulars, together with times and dates, when interceptions, if any, were made or attempted under the authorization, and any information that has been obtained by any interception,

(Emphasis added.)

The material before us does not reveal whether the judge was told by the police that they had grounds to ask for a separate authorization for a counterfeiting offence. But given the admission by respondent, this case must be decided on the assumption that the judge was informed through the affidavit of what was heard as regards that offence. It might well be, though this need not, should not and is not decided on this appeal, that if the police, on a renewal, were not to reveal such information in this affidavit, the renewal might have been obtained irregularly, the subsequent interceptions unlawful and any evidence obtained through such interceptions may be inadmissible, be it evidence of the offence stated in the authorization, or a fortiori, of any other offences, subject of course to the discretion given judges under the

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section to admit unlawfully obtained evidence.

To decide otherwise and to follow Lambert J.A.’s reasoning would in my view create great difficulties. As one of many possible illustrations, the following: The R.C.M.P. is lawfully intercepting on a heroin investigation and unexpectedly overhears evidence of a murder. Simultaneously the Municipal Police Force is investigating counterfeiting and that very same murder but have been denied an authorization to intercept for the murder but authorized for the counterfeiting. They also overhear evidence of that murder. Under one authorization it is admissible but not under the other?

Furthermore, what about the offences for which an authorization to intercept can never be obtained because they are not listed under s. 178.1. Were we to follow Lambert J.A.’s position, if evidence of such an offence in the course of a lawful interception is revealed unexpectedly it is admissible, as s. 178.16(3.1) does not distinguish between those offences and those for which an authorization may be obtained. But if it is expected, that evidence would be privileged even though the police officers could not under the law obtain an authorization. Logic would then command that s. 178.16(3.1) be limited only to proof of other offences listed at s. 178.1 as open to interception. That position was adopted in R. v. Patterson, Valois and Guindon (1976), 1976 CanLII 1416 (ON SC), 31 C.C.C. (2d) 352. That in my view would be reading a great deal into s. 178.16(3.1). To exclude evidence pertaining to “unlisted” offences would in no way further the purpose of the Act which is to protect the citizen from invasion of his privacy. That is being achieved by s. 178.1 through denying the invasion where the sole purpose is investigating one of those “unlisted” offences.

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I would therefore allow the appeal, quash the acquittal entered by the Court of Appeal and restore the conviction.

The reasons of Ritchie, Dickson, Chouinard and Wilson JJ. were delivered by

DICKSON J. (dissenting)—The issue is whether an authorization to intercept private communications in respect of one offence is sufficient to render lawful interceptions in respect of a different offence, in circumstances where the interceptions in respect of the different offence were anticipated at the time the authorization was obtained.

I The Facts

An authorization in respect of narcotics offences was renewed for a second time on July 9, 1976. It is conceded that, in so far as the narcotics offences are concerned, the authorization and renewals were properly obtained, and that the investigation into the narcotics offences continued after July 9, 1976. The accused Cosimo Commisso was not named in the narcotics authorization nor in the renewals, nor was he suspected by the police of being involved in the narcotics offences.

Prior to obtaining the second renewal, the police became suspicious of a separate counterfeiting operation involving some of the same people. By the date of the second renewal, the police thought they had enough information to obtain an authorization in respect of the counterfeiting offence. They did not make an application, however, because they were advised by Crown counsel that this was not necessary. Cosimo Commisso was not then suspected by the police of being involved in the counterfeiting offence. The authorization and the renewals with respect to the narcotics offences contained “basket clauses” which brought unknown persons within their scope. The interceptions introduced in evidence against Cosimo Commisso were all made subsequent to July 9, 1976.

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II The Exclusionary Rule

Cosimo Commisso’s conviction for conspiracy to possess counterfeit money can only be supported if the wiretap evidence was properly admitted. The majority of the British Columbia Court of Appeal directed an acquittal be entered on the basis that the trial judge had erred in admitting the evidence. The admissibility question depends on whether the interceptions were lawfully made, that is to say, pursuant to the July 9, 1976 renewal.

In R. v. Wray, 1970 CanLII 2 (SCC), [1971] S.C.R. 272, the majority of this Court decided illegally obtained evidence was admissible unless highly prejudicial and of trifling weight. The Crown relies in part on this and similar cases. With respect, in my view these authorities are of no assistance here. We are not here dealing with common law but with a highly structured statutory scheme. Parliament has clearly changed the common law rule where interceptions of private communications are involved. Illegally obtained evidence of private communications is generally inadmissible. The current s. 178.16(1) reads in part 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;

The only exceptions are consent and the discretion under present s. 178.16(3) (former s. 178.16(2)) to admit despite non-substantive defects or irregularities. Neither exception could apply in this case. The only question is whether the interceptions

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sought to be introduced against Commisso were lawfully made.

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.

III The Balancing of Interests

Part IV.1 of the Criminal Code, on Invasion of Privacy, balances two competing interests. Zuber J.A. of the Ontario Court of Appeal expressed this aptly in R. v. Welsh and Iannuzzi (No. 6) (1977), 1977 CanLII 1215 (ON CA), 32 C.C.C. (2d) 363 (Ont. C.A.), at p. 369:

…Parliament had two objectives. The first was to protect private communications by prohibiting interception and to render inadmissible evidence obtained in violation of the statute. The second objective, which balances the first, was to recognize the need to allow the appropriate authorities, subject to specific controls, to intercept private communications in the investigation of serious crime, and to adduce the evidence thus obtained.

This legislation must be viewed and interpreted with a full, fair and realistic appreciation of both these objectives. The right to private communication cannot be diluted simply because unlawful interceptions are made by honest men whose motives are simply to detect crime. On the other hand, this legislation is not a legal briar patch calculated to frustrate the legitimate aims of the prosecution.

The privacy interest is not served only by the fact that s. 178.11 generally prohibits the interception of private communications. In addition, s. 178.2 creates a separate offence of disclosing a private communication. A person’s privacy is invaded when a private communication is intercepted. A person’s privacy is invaded still further if

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that intercepted private communication is subsequently revealed to others. It is not appropriate to say that once a private communication has been intercepted, whatever interest there was in privacy has been lost. The privacy interest has a dual aspect. The question is: when is that privacy interest lawfully superseded?

Part IV.1 makes it clear that the privacy interest can be superseded in the interests of crime detection. Electronic surveillance is a useful and legitimate tool of police investigation of serious crime, but not in all circumstances. Electronic surveillance is an investigative procedure of last resort. This is especially apparent in the wording of s. 178.12(1)(g)ands. 178.13(1):

178.12 (1) An application for an authorization shall be made ex parte and in writing…

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:

(g) whether other investigative procedures have been tried and have failed or why it appears they are unlikely to succeed or that the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

178.13 (1) An authorization may be given if the judge to whom the application is made is satisfied

(a) that it would be in the best interests of the administration of justice to do so; and

(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

Whether electronic surveillance is proper in a given case is stipulated to be a matter for judicial determination and not a matter for the police to decide.

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IV Section 178.16(3.1)

Subsequent to the interceptions in this case, Parliament enacted s. 178.16(3.1). Despite the timing, counsel for Commisso agrees the subsection could apply:

178.16. …

(3.1) A private communication that has been intercepted and that is admissible as evidence may be admitted in any criminal proceeding or in any civil proceeding or other matter whatever respecting which the Parliament of Canada has jurisdiction, whether or not the criminal proceeding or the civil proceeding or other matter relates to the offence specified in the authorization pursuant to which the communication was intercepted.

(Emphasis added.)

The Crown contends that subs. (3.1) makes the evidence in this case admissible. I cannot agree. Subsection (3.1) imposes a threshold requirement that the intercepted communication be admissible as evidence. This relates back to s. 178.16(1) which provides that the evidence is inadmissible unless the interception was lawfully made. Section 178.16(3.1) simply restates the question: was the interception lawfully made. It does not provide the answer.

It is true s. 178.16(3.1) does contemplate evidence that will on occasion be admissible although it does not relate to the offence specified in the authorization. The same can be said of s. 178.22(2)(d) and (e), which have been in force since the introduction of Part IV.1:

178.22 (1) The Solicitor General of Canada shall, as soon as possible after the end of each year, prepare a report…

(2) The report referred to in subsection (1) shall, in relation to authorizations and interceptions made thereunder, set forth

(d) the number of persons identified in an authorization against whom proceedings were commenced at the instance of the Attorney General of Canada in respect of

(i) an offence specified in the authorization,

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(ii) an offence other than an offence specified in the authorization but in respect of which an authorization may be given, and

(iii) an offence in respect of which an authorization may not be given;

(e) the number of persons not identified in an authorization against whom proceedings were commenced at the instance of the Attorney General of Canada in respect of

(i) an offence specified in such an authorization,

(ii) an offence other than an offence specified in such an authorization but in respect of which an authorization may be given, and

(iii) an offence other than an offence specified in such an authorization and for which no such authorization may be given,

and whose commission or alleged commission of the offence became known to a peace officer as a result of an interception of a private communication under an authorization;

Neither s. 178.16(3.1) nor s. 178.22(2) gives any help in defining or identifying of the occasions on which an interception in relation to a non-specified offence will be regarded as pursuant to the authorization.

Section 178.16(3.1) was enacted subsequent to R. v. Welsh and Iannuzzi (No. 6), supra; R. v. Rouse and Mclnroy (1977), 1977 CanLII 1937 (BC CA), 36 C.C.C. (2d) 257 (B.C.C.A.); and R. v. Miller and Thomas (No. 4) (1975), 1975 CanLII 1310 (BC SC), 28 C.C.C. (2d) 128 (B.C. Co. Ct.), all of which held that an unanticipated interception in relation to an offence not specified in the authorization was nonetheless lawfully made. If it be assumed that s. 178.16(3.1) was enacted in confirmation of these cases, the section nonetheless says nothing about the situation that was not addressed in these cases—anticipated interceptions.

V The Requirement to Specify the Offence

Counsel for the Crown makes the following submission:

It is respectfully submitted that the whole premise of the legislation permitting interception of private communications and their subsequent admission into evi-

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dence is that it is the conversation of persons sought to be protected, not the subject matter of the conversations that is sought to be protected.

(Emphasis added.)

My reading of the statute is to the contrary. The subject matter of the communication is indeed a critical factor. Section 178.2, which generally prohibits disclosure of a private communication, contains no provision that once interception of certain persons is authorized, everything may be disclosed. More importantly, the provisions regarding the application for and the giving of an authorization are throughout linked to a specified offence. This applies equally to the wording at the time the interceptions were made as to the current wording.

The wording at the time the interceptions were made:

The current wording:

178.12 An application for an authorization shall be made ex parte and in writing

178.12 (1) An application for an authorization shall be made ex parte and in writing

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:

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;

(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;

(d) the type of private communication proposed to be intercepted;

(e) the names and addresses, if known, of all persons, the interception of whose private communications there are reasonable and probable grounds to believe may assist the investigation of the offence, and if not known, a general description of the place at which private communications are proposed to be intercepted or, if a general description of that place cannot be given, a general description of the manner of

(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

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interception proposed to be used;

used;

(e.1) the number of instances, if any, on which an application has been made under this section in relation to the offence and a person named in the affidavit pursuant to paragraph (e) and on which the application was withdrawn or no authorization was given, the date on which each such application was made and the name of the judge to whom such application was made;

(f) the period for which the authorization is requested; and

(f) the period for which the authorization is requested; and

(g) whether other investigative procedures have been tried and have failed or why it appears they are unlikely to succeed or that the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

(g) whether other investigative procedures have been tried and have failed or why it appears they are unlikely to succeed or that the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

178.13 (1) An authorization may be given if the judge to whom the application is made is satisfied that it would be in the best interests of the administration of justice to do so and that

178.13 (1) An authorization may be given if the judge to whom the application is made is satisfied

(a) other investigative procedures have been tried and have failed;

(a) that it would be in the best interests of the administration of justice to do so; and

(b) other investigative procedures are unlikely to succeed; or

(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency or the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

(c) the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

(2) An authorization shall

(2) An authorization shall

(a) state the offence in respect of which private communications may be intercepted;

(a) state the offence in respect of which private communications may be intercepted;

(Emphasis added.)

[Page 140]

On the appellant’s argument, once an authorization is validly obtained in respect of one offence, it is sufficient to cover interceptions in respect of any other offence. This would render the language directed toward the specified offence essentially meaningless. That cannot, in my view, be the proper construction of the statute.

It is clear there is a particular reason for linking an authorization to a specified offence or offences. Electronic surveillance has been deemed by the statute to be an investigative procedure of use only when other investigative procedures have been tried and failed, or are unlikely to succeed, or are impractical because of the urgency of the matter (s. 178.13(1)(b)). Whether electronic surveillance is in fact justified can only be determined in relation to a specific offence. The result of the Crown’s argument would be that electronic surveillance could and would be used in respect of an unspecified offence even where other investigative procedures could still prove fruitful. That is not consistent with s.178.13(1).

VI The Anticipated/Unanticipated Distinction

The majority of the British Columbia Court of Appeal based their decision on a distinction between two different circumstances in which an interception could be made in respect of an offence not specified in an authorization. They concluded that while an unanticipated interception respecting another offence was made pursuant to authorization, an anticipated interception respecting another offence was not, and hence was inadmissible. It was on this ground that Lambert J.A. distinguished R. v. Welsh and Iannuzzi (No. 6), supra, R. v. Rouse and Mclnroy, supra, R. v. Miller and Thomas (No. 4), supra.

In R. v. Welsh and Iannuzzi (No. 6), Zuber J.A. of the Ontario Court of Appeal made the following comment, at p. 373:

[Page 141]

American Courts have had a longer experience in this area of law. The Omnibus Crime Control and Safe Streets Act of 1968, Title III, 18 U.S.C. §2510 et seq., 82 Stat. 211, is generally similar to Part IV.1 of the Criminal Code. The question of interception of communications which disclose evidence related to offences other than the one named in the authorization has attracted comment in American cases. In United States v. Cox (1971), 449 F.2d 679, Doyle C.J., speaking for the United States Court of Appeals, 10th Circuit, said at pp. 686-7:

Once the listening commences it becomes impossible to turn it off when a subject other than one which is authorized is overheard. It would be the height of unreasonableness to distinguish between information specifically authorized and that which is unanticipated and which develops in the course of an authorized search such as that involved here. It would be irrational to hold that officers authorized to listen to conversations about drug traffic, upon learning that a bank robbery is to occur, must at once close down the project and not use the information to prevent the robbery since the information is tainted. It would be demoralizing to allow the bank to be robbed while the investigators stood by helpless to prevent the occurrence. Harder cases can be imagined. For example, in electronic surveillance of organized criminals involved in gambling, information might be intercepted disclosing a conspiracy to commit murder. Surely the officials must be empowered to use this information notwithstanding the lack of specific prior authorization.

The force of these words is not diminished by the procedural and constitutional differences which interlace this case.

(Emphasis added.)

Elsewhere in United States v. Cox, the 10th Circuit United States Court of Appeals reiterated that it was directing its attention to the question of unanticipated interceptions, at p. 687:

…we do not [uphold the statute] upon the basis that the nature and probable consequence of authorized wiretapping is discovery of unanticipated and undescribed communications. The very nature of this form of invasion is conducive to producing unexpected information.

[Page 142]

American cases distinguish between anticipated and unanticipated interceptions primarily on the basis of good faith; United States v. Marion, 535 F.2d 697 (2nd Cir., 1976); United States v. Brodson, 528 F.2d 214 (7th Cir., 1975); United States v. Aloi, 449 F. Supp. 698 (E.D.N.Y., 1977); United States v. Pine, 473 F. Supp. 349 (D. Md., 1978). The Crown concedes that if the authorization for the specified offence were obtained in bad faith, the authorization would be invalid and not cover unspecified offences. However, the Crown sets the good faith test too low. The Crown submits that an authorization is obtained in good faith as long as there is a bona fide investigation into the specified offence. In my view, that is insufficient. I would also say that there would be bad faith, and an abuse of the statutory scheme, where the police, although investigating both the specified and unspecified offences, were primarily interested in the unspecified offence for which they could not get an authorization. In most cases it would be virtually impossible to prove that the police were more interested in the unnamed than the named offence. The only viable way to control what American cases label “subterfuge searches” is to say that if an offence is suspected at the time an authorization or renewal is given, an authorization must specify that offence. If it does not, a communication with respect to that offence is not lawfully intercepted in accordance with an authorization. The above-cited American cases adopt this view by equating good faith with inadvertance.

The American cases must, of course, be approached with some caution because of the different statutory and constitutional underpinnings. Is there any basis in the Canadian statute for drawing a distinction between anticipated and unanticipated interceptions? I think the answer is in the affirmative. Note the particular wording of s. 178.13(2)(a):

178.13 …

[Page 143]

(2) An authorization shall

(a) state the offence in respect of which private communications may be intercepted;

(Emphasis added.)

In R. v. Welsh and Iannuzzi (No. 6), supra, the Ontario Court of Appeal interpreted “in respect of” to mean for the purpose or object of investigating the named offence (at pp. 373-74). If interception is for that purpose, it is lawful. Where the police suspect a crime in addition to the named offence, the interceptions have a dual purpose. In the present case interceptions purportedly under the July 9, 1976 renewal were made both in the search for evidence of narcotics offences and in the search for evidence of counterfeiting offences. I would say the former was authorized, the latter was not.

VII Conclusion

I conclude that where the police suspect an offence at the time of an application for an authorization or renewal, an interception is not lawfully made in accordance with an authorization unless the suspected offence is specified. The statute demands specification of the offence to enable a judicial determination of whether electronic surveillance is a proper tool of crime detection. If the interception has not thus been given judicial approval, the statute mandates that the privacy interest in preventing disclosure is paramount.

I would dismiss the appeal and confirm the order of the British Columbia Court of Appeal directing that an acquittal be entered.

Appeal allowed, RITCHIE, DICKSON, CHOUINARD and WILSON JJ. dissenting.

Solicitors for the appellant: Heath, Taylor, Shabbits, Giovando & Downs, Nanaimo.

Solicitors for the respondent: Greenspan, Moldaver, Toronto.