R. v. Nygaard, [1989] 2 S.C.R. 1074

Alan Gustaf Nygaard Appellant

v.

Her Majesty The Queen Respondent

and between

John Alexander Schimmens Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. nygaard

File Nos.: 20491, 20494.

1989: May 26; 1989: November 9.

Present: Dickson C.J. and Lamer, Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.

on appeal from the court of appeal for alberta

Criminal law -- Mens rea -- First degree murder -- Serious bodily harm known to be likely to cause death and reckless as to whether death ensues -- Whether or not planning and deliberation required for first degree murder incompatible with mens rea for murder through infliction of serious bodily harm causing death -- Criminal Code, R.S.C. 1970, c. C‑34, ss. 212(a)(ii), 214(2).

Evidence -- Admissibility -- Wiretaps -- Cross‑examination as to credibility of witness -- Witness' statements incompatible with statements in intercepted communication -- Criminal Code provisions respecting admissibility not met -- Whether or not reversible error made by trial judge -- Criminal Code, R.S.C. 1970, c. C‑34, ss. 178.16, 613(1)(b)(iii).

A man was brutally murdered as a result of a petty dispute which arose when a cheque used to pay for a $100 car stereo bounced. The stereo had been purchased from Nygaard by Meeks and was paid for by a cheque signed by two friends. Nygaard arrived at Meeks' room accompanied by two men. One of the men struck Meeks several times on the forehead with a baseball bat and broke his arm which was raised to protect his face. The man, later identified as Schimmens, then asked who had signed the cheque and proceeded to attack him viciously with the bat. The victim died at hospital of multiple skull fractures. Schimmens and Nygaard were charged with murder under s. 212(a)(ii) of the Criminal Code: Schimmens was alleged to have meant to cause bodily harm knowing it could likely cause death and was reckless as to whether or not death would ensue and Nygaard was alleged to be a party to the offence. They were convicted of first degree murder pursuant to s. 214(2) which requires that the murder be planned and deliberate.

Nygaard called no evidence. His position was that he was not "a party" to the offence within the meaning of s. 21 of the Code. The Crown's case against Schimmens was primarily based on the testimony which identified him. Schimmens' defence was an alibi supported by two witnesses. One of these witnesses gave testimony when confronted with excerpts from intercepted conversations, which conflicted with earlier testimony. The result was that the witness' credibility was seriously damaged and the alibi defence devastated. The Crown successfully argued that the use of the wiretaps related only to the witness' credibility and that Schimmens was never cross‑examined with regard to the intercepted conversations. The Court of Appeal found the use of the wiretap evidence to be lawful and upheld appellants' convictions.

Two issues were raised here. First, is the element of planning and deliberation required by s. 214(2) of the Criminal Code incompatible with the requisite mens rea for s. 212(a)(ii)? Secondly, did the trial judge make a reversible error when he permitted Crown counsel to cross‑examine a witness upon statements made by her in an intercepted telephone conversation when the provisions of s. 178.16 of the Code had not first been complied with?

Held (L'Heureux-Dubé J. dissenting): The appeal should be allowed.

Per Dickson C.J. and Lamer, Wilson, Sopinka and Cory JJ.: Section 214 is purely a classification section for sentencing purposes and does not create a separate substantive offence. The element of planning and deliberation justifies the harsher sentence. The term "planned" means that the scheme was conceived and carefully thought out before it was executed, and "deliberate" means considered, not impulsive.

A first degree murder conviction can be sustained by virtue of the combined operation of s. 214(2) and s. 212(a)(ii). The essential element of s. 212(a)(ii) is the intention to cause bodily harm of such a grave and serious nature that the accused knew that it was likely to result in the death of the victim. The aspect of recklessness is almost an afterthought in so far as the basic intent is concerned: it is the attitude of one who is aware of the danger the prohibited conduct could bring about and yet persists in that conduct despite the knowledge of the risk. The infliction of terrible bodily harm that will likely result in death can be planned and deliberate; continuing and persisting in that conduct despite the knowledge of the risk must be a part of that planning and deliberation. Nothing is added to the aspect of planning and deliberation by the requirement that the fatal assault be carried out in a reckless manner. The difference in the mens rea where the intent was to cause death and where the intent was to cause bodily harm knowing death could ensue was too slight to be taken into account.

The interception of private communications is an offence unless made either with consent of a participant in the conversation or in accordance with the procedure set out in the Code. Neither participant here consented to the wiretap, no voir dire was held to determine if the interception had been made in accordance with the Code's procedures and the defence had not been informed that the evidence would be used. The evidence ostensibly was not being used against an originator (Schimmens) in that it was being used to impeach the credibility of a witness. In fact, however, it was being used against the originator Schimmens to destroy his alibi defence. The Crown was attempting to do indirectly what it could not do directly and to allow such a procedure could result in widespread abuse and a fundamental unfairness to accused persons.

This was not a proper case to invoke the saving provisions of s. 613(1)(b)(iii). The conversations might have been readily admitted if a voir dire had been held but it was impossible to determine that in the absence of such a voir dire. To assume their admissibility would be to assume without any evidence that the requirements of the Code had been complied with.

A new trial was ordered for both Schimmens and Nygaard in order to obviate a situation where Schimmens, the prime mover of the crime, might be found guilty of second degree murder at the second trial while Nygaard, a party to the offence, had been found guilty of first degree murder at the first.

Per La Forest, Gonthier and McLachlin JJ.: The reasons of Cory and L'Heureux‑Dubé JJ. were agreed with on the first issue.

"Admissible as evidence" is a term of art in the law of evidence which designates putting evidence on which the jury can rely in its deliberations into the record. Cross‑examination on a prior statement does not make that statement evidence. A statement may become evidence if the person who made it admitted making it and acknowledged that it was true as happened here.

When a witness under cross‑examination admits making certain statements, it is that testimony and not the intercepted communication to which the Act is directed that becomes evidence. Section 178.16(1) is confined to the admission in evidence of intercepted private communications in the hands of the Crown. The Crown, however, cannot introduce unlawfully obtained intercepted statements indirectly by questioning witnesses on them. Considerations of fairness suggest that intercepted statements governed by s. 178 of the Criminal Code should be treated in the same manner as confessions. The statement is inadmissible until the Crown proves the conditions of its admissibility.

Per L'Heureux‑Dubé J. (dissenting): Section 178.16 is an attempt to strike a delicate balance between the goal of protecting individuals from unwanted electronic surveillance and the desire for effective law enforcement. When the section speaks of the inadmissibility of evidence, these words should not be extended so as to exclude other possible uses of intercepted communications.

Section 178.16 clearly applies only to intercepted communications which the Crown might seek to adduce as evidence. The wording is explicit and precise as the word "evidence" is a term of art in criminal law. Section 178.16 does not therefore encompass the use of intercepted private communications for the sole purpose of testing the credibility of a witness in cross‑examination.

Cases Cited

By Cory J.

Distinguished: Droste v. The Queen, 1984 CanLII 68 (SCC), [1984] 1 S.C.R. 208; R. v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225; R. v. Chabot (1985), 1985 CanLII 3481 (ON CA), 16 C.C.C. (3d) 483; referred to: R. v. Farrant, 1983 CanLII 118 (SCC), [1983] 1 S.C.R. 124; R. v. Widdifield (1961), Supreme Court of Ontario, Gale J., unreported, as excerpted in 6 Crim. L.Q. 152; Sansregret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570; R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636; Charette v. The Queen, 1980 CanLII 31 (SCC), [1980] 1 S.C.R. 785; Wildman v. The Queen, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311.

By McLachlin J.

Referred to: Donnelly v. The King (1947), 1947 CanLII 306 (NB CA), 89 C.C.C. 237; R. v. Lanigan (1984), 1984 CanLII 4251 (NB CA), 53 N.B.R. (2d) 388; R. v. Treacy (1944), 30 Cr. App. R. 93; Hebert v. The Queen, 1954 CanLII 48 (SCC), [1955] S.C.R. 120; Lui Mei Lin v. The Queen, [1989] 1 A.C. 288.

By L'Heureux‑Dubé J. (dissenting)

R. v. Welsh (1977), 1977 CanLII 1215 (ON CA), 32 C.C.C. (2d) 363; R. v. Gamble and Nichols (1978), 1978 ALTASCAD 125, 40 C.C.C. (2d) 415.

Statutes and Regulations Cited

Canada Evidence Act, R.S.C., 1985, c. C‑5, s. 11.

Criminal Code, R.S.C. 1970, c. C‑34, ss. 178.16, 212(a)(i), (ii), (b), (c), 214(2), 613(1)(b)(iii).

Authors Cited

Bryant, Alan W. "The Adversary's Witness: Cross‑Examination and Proof of Prior Inconsistent Statements" (1984), 62 Can. Bar Rev. 43.

May, Richard. Criminal Evidence. London: Sweet & Maxwell, 1986.

McWilliams, Peter K. Canadian Criminal Evidence. Agincourt, Ont.: Canada Law Book Ltd., 1974.

Watt, David. Law of Electronic Surveillance in Canada. Toronto: Carswells, 1979.

APPEAL from a judgment of the Alberta Court of Appeal (1987), 1987 ABCA 155, 78 A.R. 389, 36 C.C.C. (3d) 199, 59 C.R. (3d) 37, dismissing an appeal from convictions by Chrumka J. sitting with jury. Appeal allowed, L'Heureux-Dubé J. dissenting.

Noel O'Brien, Q.C., for the appellant Alan Gustaf Nygaard.

Alex Pringle, for the appellant John Alexander Schimmens.

Peter Martin, Q.C., and Earl Wilson, for the respondent.

//Cory J.//

The judgment of Dickson C.J. and Lamer, Wilson, Sopinka and Cory JJ. was delivered by

CORY J. -- Two issues are raised on this appeal. First, it must be determined whether a first degree murder conviction can be based upon the combined effect of ss. 212(a)(ii) and 214(2) of the Criminal Code, R.S.C. 1970, c. C-34. That is to say, is the element of planning and deliberation required by s. 214(2) incompatible with the requisite mens rea for s. 212(a)(ii). Secondly, it must be decided whether a reversible error was made by the trial judge when he permitted Crown counsel to cross-examine a witness upon statements made by her in an intercepted telephone conversation with the appellant Schimmens, without first complying with the provisions of s. 178.16 of the Code.

Factual Background

A man was brutally murdered as a result of a petty dispute arising out of the purchase of a $100 car stereo. Early in October of 1984, John Louis Meeks purchased from the appellant Nygaard, a car stereo for $100. Payment was made by means of a cheque which had been jointly signed by Anita Linda Tikk and the murdered man, Renne Tex Hammond. Both Anita Tikk and Renne Hammond were present at the time of the purchase of the stereo. The cheque bounced. Around 9 o'clock in the morning of October 12, 1984, Nygaard came to see Meeks where he was living at the West Valley Inn motel about a mile outside the Calgary city limits. Nygaard told him the cheque had bounced. Meeks promised him that he would have the money by that evening. Nygaard stated that if it wasn't cleared up that day, Meeks could expect trouble.

Some time later that day Meeks met with Anita Tikk and Renne Hammond. They rented some video cassettes and took them back to the West Valley Inn to watch them. Just before 6:00 p.m. there was a knock on the door of Meeks' room. It was Nygaard. Meeks testified that he gave him the $100 in cash. Just then two other men came walking up to the door. They asked: "Are you fucking with the bros?" One of them started to hit Meeks on the forehead with a baseball bat. Meeks was moved backwards into the room and onto the bed and was struck three more times with the bat. At one point he put his arm in front of his face for protection and received another blow from the bat, which broke his arm.

The man wielding the bat kept asking who had signed the cheque. Anita Tikk gave evidence that Meeks told the men that it was Hammond, while Meeks testified that it was Hammond himself who volunteered this information. The man with the bat then started to hit Hammond between the eyes with the bat. He struck him three times, each time with a full two-handed swing, all the while saying such things as: "You don't stiff the club. You don't hurt the club." At this point one of the men, Tikk thought it was Nygaard, Meeks thought it was Schimmens, took money from Tikk's purse and from Hammond. Nygaard then went over to pick up the video cassette recorder but the other man told him to leave it there, that they weren't petty thieves. On the way out the men warned the three people in the room: "If you tell anyone, we'll come back," and "if you tell anyone, you're dead." The man with the bat disconnected the phone by ripping out the cord.

Some 15 or 20 minutes after the men had left Anita Tikk, Meeks and Hammond went to the hospital. Hammond was described as being in a semi-conscious state at this time. He could only walk if supported by someone else. At the hospital, Meeks and Tikk advised the staff that Meeks and Hammond had fallen off a roof. Meeks' broken arm was treated and he was released. Hammond died in the hospital as a result of multiple skull fractures. Tikk went to the police to advise them of the incident the following day and later during the week Meeks did the same thing.

The Crown's case was primarily based on the testimony of Meeks and Anita Tikk. Their evidence was largely consistent but they did differ with regard to the appearance of the man who swung the bat with such devastating results. Both witnesses gave a similar description as to the height and eye colour of the man. Anita Tikk picked out both Nygaard and Schimmens from photograph folders at the police station after the incident. She also picked them out in a line-up the following day. Meeks did not identify Schimmens from the photograph folders but did pick him out at the line-up.

Nygaard and Schimmens were arrested on October 13 at premises that were shared by Schimmens and his girlfriend Glenda Jordan. A baseball bat with human blood on it was found in the seat of the couch in their suite.

At the trial Nygaard called no evidence. His position was that he was not "a party" to the offence within the meaning of s. 21 of the Criminal Code. Schimmens testified at the trial and called two witnesses, Brian Sager and Glenda Jordan. His defence was that of alibi. He said he had driven Jordan to the race-track where she worked and had attended the races with Sager.

During cross-examination Glenda Jordan stated that she never really discussed the case with Schimmens after his arrest despite the fact that she had seen him three or four times a week and talked with him on the phone every day. She specifically denied that Schimmens had asked her to get a transcript of the preliminary hearing, to read it, and then deliver it to Sager. As well she denied ever having read the transcript. Her evidence was that 10 minutes before the second race -- which would have been between 5:45 and 5:55 p.m. -- she had seen Schimmens at the races. This of course would be the very time when he was alleged to have been at the motel when the fatal injuries were inflicted upon Hammond.

Crown counsel persisted in his questioning of Jordan and read her specific portions of conversations that had taken place between Jordan and Schimmens and Jordan and a third party, James Wolton. Jordan eventually broke down and admitted that she had been lying. She confirmed she had indeed discussed with Schimmens the reading of the preliminary hearing transcripts by herself, Sager and another witness.

At this point an objection was taken by the defence counsel that the Crown was using the conversations in contravention of s. 178.16 of the Criminal Code. The objection was overruled. Crown counsel continued with the cross-examination at which point Jordan admitted that she had read part of the preliminary inquiry transcript and that Sager had read the whole transcript. At the conclusion of her cross-examination she did repeat that Schimmens had been at the race-track at the critical time. The Crown has conceded that the conversations were intercepted and recorded by means of an electronic surveillance but emphasized that Schimmens was never cross-examined with regard to the intercepted conversations.

The Courts Below

In his charge to the jury the trial judge made it plain that a conviction for first degree murder could be sustained on the basis of the interaction between s. 214(2) and either ss. 212(a)(i) or 212(a)(ii).

On the issue of the cross-examination's making use of the intercepted conversations the Court of Appeal (1987), 1987 ABCA 155, 36 C.C.C. (3d) 199, was unanimous in its view that s. 178.16 had no application to the case because the conversations were not being used either against "the originator" Jordan or against James Wolton, whom the court took to be the intended receiver, neither of whom was on trial. The court agreed that the Crown counsel was justified in cross-examining on the intercepted conversations as he was doing no more than interrogating the witness Jordan on her prior inconsistent statement. It determined that since s. 178.16 had no application the trial judge was not obliged to hold a voir dire to prove the lawfulness of the interception before the intercepted conversation could be used in cross-examination. The court observed that the jury had been properly instructed as to the limited use which could be made of the statement. That is to say, that it could only be used in assessing the credibility of the witness and that it was not evidence as to the truth of the facts referred to in the statements themselves.

With regard to the verdict, Belzil J.A., for the majority, expressed the view that a conviction of first degree murder could properly result from the interaction of s. 212(a)(ii) and s. 214(2). He observed that there are two mental elements included in s. 212(a)(ii), namely the intent to cause bodily harm which one knows is likely to cause death, and recklessness as to whether death ensues. He was of the opinion that recklessness as to the consequences was not part of the intention but was an alternative to the intention to kill. He stated that the planning and deliberation required by s. 214(2) of the Criminal Code referred only to the intentional portion of the mens rea requirement. He concluded that it is only the intent to cause bodily harm which one knows is likely to result in death which must be premeditated pursuant to s. 214(2) and not the recklessness referred to in s. 212(a)(ii). Thus if a jury were satisfied beyond a reasonable doubt that the intent to cause bodily harm which the accused knew was likely to cause death was planned and deliberate and the planned act was then recklessly carried out, a first degree murder conviction could properly result.

Stevenson J.A. dissented on this point. He agreed with the majority that there are two mental elements required by s. 212(a)(ii), namely the intent to cause bodily harm that the accused knew was likely to cause death, and recklessness as to the consequences, but in his opinion s. 214(2) could not be brought into play. He expressed the view that planning and deliberation could not be applicable to the requisite mental element for recklessness. He concluded that if the planning and deliberation could not apply to all of the mental elements set forth in s. 212(a)(ii), there could be no possibility of a first degree murder conviction by means of s. 214(2). He therefore would have substituted convictions for second degree murder.

The First Degree Murder Issue

It may be helpful to set forth at the outset the applicable sections of the Criminal Code:

212. Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; ...

214. . . .

(2) Murder is first degree murder when it is planned and deliberate.

It must be noted that this Court has stated on more than one occasion that s. 214 is purely a classification section and it does not create a separate substantive offence. See R. v. Farrant, 1983 CanLII 118 (SCC), [1983] 1 S.C.R. 124; Droste v. The Queen, 1984 CanLII 68 (SCC), [1984] 1 S.C.R. 208. The designation of murder as being of the first or second degree is for purposes of sentencing only.

What then is the meaning of planned and deliberate and can that classification be applied to the requisite intents set forth in s. 212(a)(ii)? It has been held that "planned" means that the scheme was conceived and carefully thought out before it was carried out and "deliberate" means considered, not impulsive. A classic instruction to a jury as to the meaning of "planned and deliberate" was given by Gale J., as he then was, in R. v. Widdifield (1961), Ontario Supreme Court, unreported, as excerpted in 6 Crim. L.Q. 152, at p. 153:

I think that in the Code "planned" is to be assigned, I think, its natural meaning of a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed. But that does not mean, of course, to say that the plan need be a complicated one. It may be a very simple one, and the simpler it is perhaps the easier it is to formulate.

The important element, it seems to me, so far as time is concerned, is the time involved in developing the plan, not the time between the development of the plan and the doing of the act. One can carefully prepare a plan and immediately it is prepared set out to do the planned act, or, alternatively, you can wait an appreciable time to do it once it has been formed.

As far as the word "deliberate" is concerned, I think that the Code means that it should also carry its natural meaning of "considered," "not impulsive," "slow in deciding," "cautious," implying that the accused must take time to weigh the advantages and disadvantages of his intended action.

Appellants' Positions

The appellants contended that the element of planning and deliberation cannot be applied to the mens rea required by s. 212(a)(ii). In support of this position the case of R. v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225, was cited.

In R. v. Ancio this Court considered the requisite mental elements of the offence of attempted murder. It is true that in the course of his reasons given on behalf of the Court, McIntyre J. wrote at pp. 248-49:

The completed offence of murder involves a killing. The intention to commit the complete offence of murder must therefore include an intention to kill. I find it impossible to conclude that a person may intend to commit the unintentional killings described in ss. 212 and 213 of the Code. I am then of the view that the mens rea for an attempted murder cannot be less than the specific intent to kill.

However he emphasized that the reasons related only to the crime of attempted murder which is historically and conceptually distinct from that of murder. At page 240 McIntyre J. stated:

A great deal of the confusion surrounding the nature of the intent required to found a conviction for attempted murder may well stem from an assumption that murder and attempted murder are related offences which must share the same mental elements. A brief review of the historical development of the law relating to the two offences demonstrates that the crime of attempt developed as a separate and distinct offence from the offence of murder.

He concluded at pp. 250-51 that:

It was argued, and it has been suggested in some of the cases and academic writings on the question, that it is illogical to insist upon a higher degree of mens rea for attempted murder, while accepting a lower degree amounting to recklessness for murder. I see no merit in this argument. The intent to kill is the highest intent in murder and there is no reason in logic why an attempt to murder, aimed at the completion of the full crime of murder, should have any lesser intent. If there is any illogic in this matter, it is in the statutory characterization of unintentional killing as murder. The mens rea for attempted murder is, in my view, the specific intent to kill.

It is thus clear that the reasons refer only to the offence of attempted murder and the principles set forth are not automatically applicable to the case at bar.

Nor do I think that the case of R. v. Chabot (1985), 1985 CanLII 3481 (ON CA), 16 C.C.C. (3d) 483, relied upon by the appellants is of assistance. In R. v. Chabot the Ontario Court of Appeal concluded that s. 214(2) could not operate in conjunction with s. 212(c). That section provides as follows:

212. Culpable homicide is murder

(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.

The Court of Appeal reasoned, I think correctly, that in s. 212(c) murder might be committed although there could be no intention on the part of the accused to kill. Indeed, in that section the accused might well have desired to gain his ends without causing death. Thus it was held that there could not be planning and deliberation of a killing that might well have been unintended. The reasoning cannot be applied to the case at bar though as the requisite intent specified in s. 212(a)(ii) is very different from that of s. 212(c).

Authority Relied upon by the Respondent

Nor do I think that Droste v. The Queen, supra, relied upon by the respondent is dispositive of the issue. In the Droste case there could be no doubt that the accused had planned to kill his wife and, while carrying out his design, had killed instead his two unfortunate young children. His conviction was based on s. 212(b) which reads:

212. Culpable homicide is murder

(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; . . .

The decision centred on the requirements of a different section than those of the case at bar. In Droste v. The Queen, the issue was whether the planning and deliberation to kill A which resulted in the killing of B should be classified as murder in the first degree. It was found that the requirement of planning and deliberation was a requirement that related to the intention to take a human life and not to the identity of the victim. On the facts of that case there could be no doubt that Droste meant to cause death to a human being and planned and deliberated the death of a human being. In the result, Dickson J. (as he then was) writing on behalf of the Court concluded that s. 214(2) could operate in conjunction with s. 212(b) to sustain a first degree murder conviction. However, that decision centred on requirements of a section of the Code that are different from s. 212(a)(ii). The Droste decision cannot be determinative of the issue in the case at bar.

Can Section 212(a)(ii) be Combined with s. 214(2) to Result in a Conviction for First Degree Murder?

Throughout history the idea that one human being could cold bloodedly plan and deliberate upon the killing of another has been repugnant to all civilized societies and has tended to be considered as the most reprehensible of violent crimes. In Droste v. The Queen, supra, Dickson C.J. noted that it is the element of planning and deliberation of the murder which makes the crime of murder in the first degree more culpable and justifies the harsher sentence.

It remains then to consider what is the specific mens rea required by s. 212(a)(ii) to which the element of planning and deliberation must be related. The section requires that the Crown prove that the accused meant to cause the victim such bodily harm that he knew that it was likely to cause the death of the victim and was reckless whether death ensued or not as a result of causing that bodily harm. The essential element is that of intending to cause bodily harm of such a grave and serious nature that the accused knew that it was likely to result in the death of the victim. The aspect of recklessness is almost an afterthought in so far as the basic intent is concerned.

In Sansregret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, recklessness was defined as being the attitude of one who was aware of the danger the prohibited conduct could bring about yet nevertheless persisted in that conduct despite the knowledge of the risk. Thus the section requires the accused to intend to cause the gravest of bodily harm that is so dangerous and serious that he knows it is likely to result in death and to persist in that conduct despite the knowledge of the risk.

In my view, the vital element of the requisite intent is that of causing such bodily harm that the perpetrator knows that it is likely to cause death and yet persists in the assault. There can be no doubt that a person can plan and deliberate to cause terrible bodily harm that he knows is likely to result in death. Nothing is added to the aspect of planning and deliberation by the requirement that the fatal assault be carried out in a reckless manner, that is to say by heedlessly proceeding with the deadly assault in the face of the knowledge of the obvious risks. The planning and deliberation to cause the bodily harm which is likely to be fatal must of necessity include the planning and deliberating to continue and to persist in that conduct despite the knowledge of the risk. The element of recklessness does not exist in a vacuum as a sole mens rea requirement, but rather it must act in conjunction with the intentional infliction of terrible bodily harm. I therefore conclude that planning and deliberation may well be coupled with the mens rea requirement of s. 212(a)(ii) and that a first degree murder conviction can be sustained by virtue of the combined operation of s. 214(2) and s. 212(a)(ii). This ground of appeal must therefore fail.

As well, the appellant argued it was wrong to label an offence under s. 212(a)(ii) as murder. It was said that the requisite mens rea is such that it is not as grave a crime as that defined in s. 212(a)(i) where the requisite intent is to cause the death of someone. I cannot accept that contention. The variation in the degree of culpability is too slight to take into account. Let us consider the gravity of the crime described by s. 212(a)(ii) in the light of three examples which, pursuant to the section, would be murder. First an accused forms the intent to inflict multiple stab wounds in the abdomen and chest of a person knowing that the wounds are likely to kill the victim and, heedless of the known probable result, proceeds with the stabbing. Second, an accused forms the intent to shoot a former associate in the chest knowing that death is likely to ensue and, uncaring of the result, shoots the victim in the chest. Third, two accused form the intent to repeatedly and viciously strike a person in the head with a baseball bat realizing full well that the victim will probably die as a result. Nonetheless they continue with the bone-splintering, skull-shattering assault. The accused in all these examples must have committed as grave a crime as the accused who specifically intends to kill. Society would, I think, find the drawing of any differentiation in the degree of culpability an exercise in futility. The difference in the calibration on the scale of culpability is too minute to merit a distinction. I would conclude that the crime defined in s. 212(a)(ii) can properly be described as murder and on a "culpability scale" it varies so little from s. 212(a)(i) as to be indistinguishable.

I find some support for this position in R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636. There Lamer J., giving the reasons for the Court, stated at pp. 644-45:

There is a very interesting progression through s. 212 to s. 213 with respect to the mental state that must be proven.

The starting point is s. 212(a)(i) . . . .

This clearly requires that the accused have actual subjective foresight of the likelihood of causing the death coupled with the intention to cause that death. This is the most morally blameworthy state of mind in our system.

There is a slight relaxation of this requirement in s. 212(a)(ii) ....

Here again the accused must have actual subjective foresight of the likelihood of death. However, the Crown need no longer prove that he intended to cause the death but only that he was reckless whether death ensued or not. It should also be noted that s. 212(a)(ii) is limited to cases where the accused intended to cause bodily harm to the victim.

He went on to note, at pp. 645-46, that there is still a greater relaxation of the requisite mental element in s. 212(c), a provision which "eliminates the requirement of actual subjective foresight and replaces it with objective foreseeability or negligence". It is clear from these observations that the Court in that case concluded that there was but a slight relaxation of the requisite intent in s. 212(a)(ii) from that required by s. 212(a)(i). Section 212(a)(ii) demands a highly subjective mental element to be present, that of the intent to cause the gravest of bodily injuries that are known to the accused to be likely to cause death to the victim. It is to this intent that the s. 214(2) requirement of planning and deliberation can be properly applied.

The Wiretap Issue

This issue arises out of the cross-examination of the defence witness Jordan by Crown counsel. It was the Crown's position that Schimmens, during his time at the detention centre, had concocted an alibi for his defence and orchestrated the compliance of friends in supporting this alibi. The cross-examination of Jordan, who was Schimmens' girlfriend, was based upon five intercepted telephone calls. From the transcript it is clear that Crown counsel became specific in his interrogation and read to Jordan verbatim from portions of the transcript of the intercepted conversations. Although the Alberta Court of Appeal held that s. 178.16 of the Criminal Code did not apply, it based this finding on a mistaken belief that the conversations were between Jordan and one James Wolton. Neither Wolton nor Jordan were accused parties before the Court. However, four of those five conversations (the vital conversations) were instead between Jordan and the accused Schimmens. It was these four conversations which pertained to the plan to read and circulate the preliminary hearing transcripts. It was the presentation of these conversations to Jordan which caused her to admit she had lied in her earlier testimony. They were thus seriously damaging to her credibility and to the alibi defence. For the purposes of these reasons I need only deal with the conversations between Jordan and Schimmens.

Section 178.16 of the Criminal Code, subss. (1) and (4), reads as follows:

178.16 (1) A private communication that has been intercepted is inadmissible as evidence against the originator of the communication or the person intended by the originator to receive it unless

(a) the interception was lawfully made, or

(b) the originator thereof or the person intended by the originator to receive it has expressly consented to the admission thereof;

but evidence obtained directly or indirectly as a result of information acquired by interception of a private communication is not inadmissible by reason only that the private communication is itself inadmissible as evidence.

(4) A private communication that has been lawfully intercepted shall not be received in evidence unless the party intending to adduce it has given to the accused reasonable notice of his intention together with

(a) a transcript of the private communication, where it will be adduced in the form of a recording, or a statement setting forth full particulars of the private communication, where evidence of the private communication will be given viva voce; and

(b) a statement respecting the time, place and date of the private communication and the parties thereto, if known.

These provisions are contained in Part IV.1 of the Criminal Code which is entitled "Invasion of Privacy" and subtitled "Interception of Communications". These titles in themselves support the position that the purpose of this part of the Criminal Code is to protect the natural interest of all individuals in their privacy. These provisions have made the interception of private communications an offence unless they are made either with consent of a participant in the conversation or in accordance with the procedure set out in the Criminal Code. In the case at bar no notice was given to Schimmens of the Crown's intention to use the intercepted conversations. Nor had there been a voir dire in order that the judge might determine whether the interception had been lawfully made as required by Charette v. The Queen, 1980 CanLII 31 (SCC), [1980] 1 S.C.R. 785.

The respondent Crown argued that there was no need to prove that the interception was lawfully made, as it was not intended to use it "against the originator" Schimmens but rather to impeach the credibility of the witness Jordan. Yet the Crown was doing far more than impeaching the credibility Jordan pursuant to s. 11 of the Canada Evidence Act, R.S.C., 1985, c. C-5. The intercepted conversation was, in fact, being used against the originator Schimmens to destroy his alibi defence. It was the words of Schimmens and Jordan's replies to Schimmens that were read to her. The effect of the cross-examination with the intercepted conversations on the defence alibi was devastating. It led the trial judge in his charge to the jury to put forward the theory that the defence witnesses had lied under oath because they had been concocting the alibi story and to make the suggestion that the jury might consider the fabrication of evidence by an accused as a circumstance from which they could infer consciousness of guilt, although he emphasized it would not be conclusive evidence of guilt.

The effect of Jordan's cross-examination by means of the intercepted communications went far beyond an attack upon the credibility of the witness. In reality they were used as evidence against the accused in contravention of s. 178.16(4). Schimmens was the originator of the most damaging conversations and it was the content of those conversations which was used to rebut his sole defence of alibi. The use of the intercepted conversations in this way contravened the provisions of s. 178.16(4).

This was the view expressed by David Watt (now Watt J.) in his text Law of Electronic Surveillance in Canada. At page 298 he wrote:

An issue may perhaps arise in the case of primary evidence being used for testimonial impeachment as to whether the receivability of the primary evidence need be shown where it is not being used in a substantive way. The provisions of section 178.16 do not distinguish between primary evidence used to advance the prosecution's case in a substantive way and that used to incidentally advance it by impeaching the testimonial reliability of the accused as a defence witness. The distinction is, in reality, one of form not of substance and it would accord more with the spirit of the legislation to require proof of the lawfulness of the interception as well as proof of the fact that the alleged statement was made.

If the Crown were permitted to use the conversations in the manner suggested in this case, it would permit the Crown to do indirectly what it is prohibited from doing directly. To allow such a procedure could result in widespread abuse and a fundamental unfairness to accused persons.

The introduction, in the absence of the procedural safeguards provided by the Criminal Code, of the intercepted conversations between the witness Jordan and the appellant Schimmens during the cross-examination of Jordan was improper.

I must as well reject the Crown's contention that this is a proper case to invoke the saving provisions of s. 613(1)(b)(iii). Although it may well be true that the conversations would have been readily admitted had a voir dire been held, it is impossible to determine that in the absence of such a voir dire. To assume their admissibility would be to assume without any evidence that the requirements of the Criminal Code had been complied with.

Since the voir dire was not held and the Court cannot presume its result, the case must be considered without the evidence of the intercepted conversations. In those circumstances the Crown cannot meet the requisite standards to warrant the implementation of s. 613(1)(b)(iii). The Crown would have to satisfy the Court that in the absence of any reference in the evidence to the intercepted communications, the verdict would necessarily have been the same. It has been decided that when exculpatory evidence has been improperly excluded then any reasonable effect that exclusion may have had on the jury should, in considering the subsection, enure to the benefit of the accused. See Wildman v. The Queen, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311. The same principle must apply to inculpatory evidence that was improperly included. When that principle is applied to this case it becomes apparent that the Crown cannot meet the test.

In the circumstances, a new trial must be directed not only for the appellant Schimmens, but also for Nygaard.

It seems unfortunate that Nygaard too must have a new trial yet it appears to be the inescapable result. It is true that the erroneously admitted evidence affects only Schimmens in his alibi defence. Even if it led the jury to a reasonable doubt as to the guilt of Schimmens and his acquittal, the unchallenged fact remains that Hammond was battered to death with a baseball bat in the presence of Nygaard by someone who arrived with Nygaard. Nor does the alibi evidence of Schimmens affect the jury's conclusion in the first trial that Nygaard was a party to the murder committed by whoever it was that swung the baseball bat. The jury was carefully and properly instructed with regard to Nygaard's position as a party and this is not contested.

Nevertheless, on a new trial the evidence then adduced might lead a jury to a conclusion that the killing amounted to murder in the second degree and not first degree. If Nygaard did not also have a new trial, the incongruous and unacceptable result might be that Schimmens, the prime mover in the crime, was found guilty of second degree murder while Nygaard, the party to the crime, was found guilty of murder in the first degree.

In the result, I would set aside the convictions and direct a new trial of both appellants.

By McLachlin J.

The reasons of La Forest, Gonthier and McLachlin JJ. were delivered by

MCLACHLIN J. -- I have had the benefit of reading the reasons of Justices L'Heureux-Dubé and Cory. I agree with their views on the first issue.

While I agree with Cory J. in the result on the second issue, I reach that conclusion by a different route. Section 178.16 (now s. 189) of the Criminal Code, R.S.C. 1970, c. C-34, provides:

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.

I share the view of L'Heureux-Dubé J. that "admissible as evidence" is a term of art in the law of evidence. It designates the putting of evidence into the record -- evidence which the jury can rely on in making its conclusions. Cross-examination on a prior statement does not make that statement evidence.

That is not to say that the statement does not become evidence if it is proved. One way of proving the statement is by the witness' acknowledging that she made the statement and stating that it is true. McWilliams, Canadian Criminal Evidence, at p. 629, summarizes the law as follows:

A witness who is cross-examined as to a previous inconsistent statement may: (1) admit that he made the statement and that it is true; (2) admit that he made the statement but deny its truth . . . ; (3) deny that he made the statement . . . .

It is only in the first situation that the statement comes within the testimonial response and becomes evidence against the accused as to the truth of the facts therein . . . . [Emphasis added.]

In this case we have the first situation referred to by McWilliams. The witness acknowledged that she had the telephone conversation and admitted her statements were true. It would seem, therefore, that her statements were admitted as evidence.

This is not the end of the matter, however. When the witness under cross-examination admitted that she had made certain statements, it was not the intercepted communication to which the Act is directed that became evidence, but her testimony. Section 178.16(1) is confined to the admission in evidence of intercepted private communications. Its purpose is to prevent the Crown from tendering as evidence private communications which have been unlawfully intercepted. Its purpose was not to prevent witnesses from giving evidence about conversations in which they took part, merely because they may have been intercepted by the police. An intercepted private communication under s. 178.16(1) is a private communication which is in the hands of the Crown as a result of an interception. I agree with L'Heureux-Dubé J. that s. 178.16(1) was never intended to apply to defence witnesses giving evidence about conversations in which they participated.

Extending s. 178.16(1) to all evidence about statements that may happen to have been intercepted would produce anomalous results. While the accused would still be able to give evidence of prior statements in his own defence by expressly consenting to their admission, the use of the word "consent" hardly seems apt to describe such a process. More seriously, what of a case where a defence witness gives evidence of a conversation, unaware that the Crown has intercepted it? In such circumstances the accused would be unaware of the need to expressly consent to the statement being introduced, with the result that it would be inadmissible. Moreover, since the only prohibition is on the admission of evidence, a defence witness could be cross-examined on his or her statement without violating the section, but could not state that he made the statement or that it was true. These awkward results are avoided if s. 178.16(1) is confined to intercepted communications in the hands of the Crown.

What then is the result? Is the Crown to be allowed to introduce unlawfully obtained intercepted statements indirectly by questioning witnesses on them? As Cory J. points out, that would seem not only anomalous, but unfair.

In my opinion, the answer to this question is governed by a principle that stands independent of s. 178.16(1) of the Criminal Code. I am of the view that the intercepted statement should not have been referred to in cross-examination without the Crown's first establishing that the statement was lawfully obtained. The authorities establish that Crown cross-examination of defence witnesses must be based on admissible evidence: McWilliams, op. cit., at p. 500, quoting Donnelly v. The King (1947), 1947 CanLII 306 (NB CA), 89 C.C.C. 237 (N.B.C.A.):

But whether the evidence submitted in direct or on cross-examination is for the purpose of impugning the character or the credibility of a witness, the nature of such evidence must be such that it is admissible under the rules of evidence; and the manner of bringing it out must be in accord with the rules of fair practice, and not in violation or derogation of the right of witnesses or accused persons.

For this reason, a witness generally cannot be cross-examined on a confession that has not been proved voluntary. McWilliams, op. cit., states at p. 627:

It is improper for counsel to cross-examine a witness regarding a confession which has not been ruled voluntary and a fortiori one which has been ruled involuntary: Monette v. The Queen (1956), 1956 CanLII 68 (SCC), 114 C.C.C. 363 (S.C.C.); Hebert v. The Queen (1954), 1954 CanLII 48 (SCC), 113 C.C.C. 97 (S.C.C.), per Cartwright, J. (dissenting); R. v. Treacy (1944), 30 Cr. App. R. 93.

This applies to cross-examination of the accused on confessions not proved to be voluntary: R. v. Treacy (1944), 30 Cr. App. R. 93; Hebert v. The Queen, 1954 CanLII 48 (SCC), [1955] S.C.R. 120. More closely parallel to this case, it also applies to cross-examination of defence witnesses other than the accused on confessions made to the witness that have not been proved to be voluntary and admissible: R. v. Lanigan (1984), 1984 CanLII 4251 (NB CA), 53 N.B.R. (2d) 388 (C.A.)

The rule does not extend to cross-examination by an accused on a confession made by his or her co-accused. Different considerations prevail there because of the need to guarantee the co-accused a full and fair trial and not deprive him or her of legitimate defences: Lui Mei Lin v. The Queen, [1989] 1 A.C. 288 (P.C.)

In summary, the fundamental consideration governing cross-examination on prior statements in a criminal trial is fairness. The law recognizes that it would be unfair to permit the Crown to introduce inadmissible statements against an accused by the device of questioning defence witnesses on them in cross-examination. For this reason, the cases hold that the Crown must show the statements to be admissible before embarking on such cross-examination. On the other hand, where cross-examination is necessary to afford an accused a fair trial, it is permitted.

Considerations of fairness suggest that intercepted statements governed by Part IV.1 of the Criminal Code should be treated in the same manner as confessions for purposes of Crown cross-examination of defence witnesses. In each case, the statement is inadmissible until the Crown proves the conditions of its admissibility -- in the case of confessions, voluntariness, in the case of intercepted statements, compliance with the conditions laid down by the Criminal Code. In each case, to permit the Crown to question defence witnesses on the statement without requiring the Crown to first establish its admissibility would be, as my colleague Cory J. points out, to permit the Crown to do indirectly what it cannot do directly. Evidence which might be inadmissible under exclusionary rules based on policy or fairness, might nevertheless be taken into consideration by the jury, and no amount of careful instruction by the judge as to the use to which the evidence may be put could ensure that it would not become part of their perception of the case. In the case of intercepted private communications, just as in the case of confessions, fairness requires that the Crown establish the admissibility of statements it seeks to use against the accused before putting them to defence witnesses in cross-examination.

The logic of extending the rule governing the use of confessions in cross-examination by the Crown to other prima facie inadmissible statements is recognized by May, Criminal Evidence, s. 8-86, who, after setting out the rules governing cross-examination on confessions, including the rule that a defendant may not be cross-examined on an inadmissible confession, concludes: "The same rules apply to any other inadmissible statement made by a defendant."

In this case, the Crown cross-examined a defence witness on a statement, the admissibility of which had not been established. The Crown was thus allowed to put before the jury and use against the accused a statement that s. 178.16(1) of the Criminal Code made inadmissible against the accused without proof that it had been lawfully obtained. This was unfair and on the authorities should not have been permitted.

I agree with Cory J. that although the use of the intercepted statements affected only Schimmens in his alibi defence, to allow only Schimmens' appeal might lead to incongruous results.

I would set aside the convictions and direct a new trial of both appellants.

By L'Heureux-Dubé J. (dissenting)

The following are the reasons delivered by

L'HEUREUX-DUBÉ J. (dissenting) -- The appellants raise two issues in this appeal. While I am in agreement with my colleague Justice Cory as to the disposition of the first issue concerning the construction of ss. 212(a)(ii) and 214(2) of the Criminal Code, R.S.C. 1970, c. C-34, with deference, I cannot agree with his disposition of the second issue raised.

This issue concerns the proper interpretation of s. 178.16 (now s. 189) of the Criminal Code. Section 178.16 (1) provides:

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.]

I note at the outset that no constitutional challenge is at issue here as regards s. 178.16 of the Criminal Code.

The title of Part IV.1 of the Criminal Code, in which s. 178.16 (now s. 189) can be found, is "Invasion of Privacy". The right to privacy is of crucial importance in our society, and should be ardently protected by the courts. There are many legal tools which are available to help protect an individual from unwarranted invasions of privacy. These tools range from the Canadian Charter of Rights and Freedoms to private law remedies. Part IV.1 of the Criminal Code is only one of a range of possible protections. It is aimed at one particular aspect of the problem of invasion of privacy: electronic surveillance for the purposes of crime detection. As such, it is a specific tool, designed for a specific goal.

This specific goal is described as a balancing of objectives by Zuber J.A. of the Ontario Court of Appeal in R. v. Welsh (1977), 1977 CanLII 1215 (ON CA), 32 C.C.C. (2d) 363, at p. 369:

It is apparent that in enacting the Protection of Privacy Act, 1973-74 (Can.), c. 50, now Part IV.1 of the Code, 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.

I agree. The goal of protecting individuals from unwanted electronic surveillance is often at cross-purposes with the desire for effective law enforcement in an increasingly sophisticated technological age. As a result, an often delicate balance must be struck between the two aims. In my view, one must assume that the legislature, in enacting the "Invasion of Privacy" provisions of the Criminal Code, was establishing the balance it desired. It is my view that the proper role of the courts is to interpret the provisions in a manner which gives full effect to the legislative intent. When s. 178.16 speaks of the inadmissibility of evidence, these words should not be extended so as to exclude other possible uses of intercepted communications.

In my view, s. 178.16 clearly applies only to intercepted communications which the Crown might seek to adduce as evidence. The wording is explicit. The word "evidence" is a term of art in criminal law. It cannot be supposed that Parliament was unaware of either the meaning of this term or the implications of its use within s. 178.16. As a result, s. 178.16 cannot be said to include the use of intercepted private communications for the sole purpose of testing the credibility of a witness such as Jordan in cross-examination in the circumstances of this case.

In the present case Glenda Jordan was called as a witness by the accused Schimmens at the trial of Nygaard and Schimmens. Jordan was the live-in girlfriend of Schimmens. Her testimony was crucial to Schimmens' alibi defence. This defence was based on the claim by Jordan that she saw him at the race-track where she worked at roughly the same time that the assault on the victim Hammond occurred across town. Schimmens' alibi was also supported by testimony from one Brian Sager who claimed to have been with Schimmens at the track at the relevant time. It was the Crown's theory that the alibi was false, and was orchestrated by Schimmens from the Remand Centre where he was detained.

In cross-examination, the Crown sought to destroy the credibility of Jordan as Schimmens' chief alibi witness. To this end, it made use of prior inconsistent statements made by Jordan. These were aimed primarily at determining whether she was following instructions from Schimmens with respect to her testimony, and whether she had obtained a copy of the transcript of the preliminary inquiry and used it to instruct Sager. None of the prior inconsistent statements used by the Crown contained actual contradictory information regarding Jordan's claim to have seen Schimmens at the race-track at the time of the murder. Thus the cross-examination did not directly disprove the alibi. However, the use of the conflicting statements by the Crown led Jordan to admit to having lied in certain portions of her testimony, and in particular to having followed instructions from Schimmens concerning her own testimony and the briefing of Sager. Needless to say, the use of the prior inconsistent statements had a devastating effect on Jordan's credibility as a witness.

The controversy over the use of these statements relates to their source. The statements were contained in transcripts of a recorded telephone conversation between Jordan and an individual named James Wolton, and in three separate telephone conversations between Jordan and Schimmens. The appellants argue that the statements were inadmissible since it was never established that the interceptions were lawful pursuant to s. 178.16 of the Criminal Code.

An objection to the use of these statements was made at trial. The following discussion took place in the absence of the jury:

THE COURT: Yes, Mr. MacPherson.

Mr. MacPHERSON: Thank you, My Lord. It appears that my learned friend is introducing evidence of an interception of a private communication. In my respectful submission, would that not bring into play the provision of Sections [sic] 178 of the Criminal Code?

MR. MARTIN: I at this point in these proceedings am cross-examining the witness with respect to a previous oral inconsistent statement pursuant to Section 11 of the Canada Evidence Act. My respectful submission is that if she agrees she makes these statements, how they came into my possession is completely irrelevant. It's not evidence, it's just been cross-examining her going to the issue of her credibility.

MR. MacPHERSON: Well, it certainly is indeed evidence in my respectful submission, My Lord, and I appreciate the point that my learned friend is making. What he is doing in effect is introducing evidence of an interception of a private communication. In my respectful submission then Section 178 comes into play.

MR. MARTIN: Just so we're clear here, I'm not introducing any evidence at this point. I'm asking the witness if she recalls saying these statements which are inconsistent with her current evidence.

THE COURT: Which part of 178.16 are you speaking; that it's inadmissible in evidence?

MR. MacPHERSON: Yes, Sir.

THE COURT: 1(a). That's your total submission?

MR. MacPHERSON: Yes, Sir, 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"

And it goes onto (a) and (b). Unless "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 COURT: Well, as Mr. Martin says, he's not introducing the interception as evidence. He's merely attempting to refresh the memory of this particular witness, and it appears to be refreshing her memory.

MR. MacPHERSON: What he is doing, My Lord, in my respectful submission, is reading directly from the communication that was made.

THE COURT: No question he is, but it's still not being introduced as evidence. It's not evidence unless she adopts it or does not adopt it.

MR. MacPHERSON: Well, if she adopts it, My Lord -- let's say for the sake of argument she adopts it, then does it not come squarely within Section 178?

THE COURT: As I understand it, the transcript is not being tendered. It's her viva voce evidence after her memory has been refreshed that is being put before the jury.

MR. MacPHERSON: Well, in my respectful submission, My Lord, none of it is admissible because of the prohibition in Section 178.

THE COURT: We will continue. Jury, please. [Emphasis added.]

There is nothing to indicate that the statements were illegally obtained. In fact, the Crown submits in its factum that the proper judicial authorization had been obtained for the interceptions. The controversy in this case is over the trial judge's decision that proof of their legality need not be tendered at this stage under the circumstances.

The issue of whether the Crown should have been permitted to use these statements in the cross-examination of Jordan was raised on appeal to the Court of Appeal of Alberta (1987), 1987 ABCA 155, 36 C.C.C. (3d) 199. Belzil J.A., for the majority, made the following remarks at p. 203:

While the Crown was aware of the contents of these intercepted conversations from transcripts in its possession, it did not seek to introduce them as evidence against the "originator", Jordan, or the "intended receiver", Wolton, neither of whom were on trial; it only sought to cross-examine the witness on her prior inconsistent statements. Hence the exclusionary rule in s. 178.16 had no application and the trial judge did not err in ruling that the Crown was not required to prove the lawfulness of the interceptions before using them for cross-examination. The jury were never told that the Crown had obtained these prior inconsistent statements by interception of private telephone conversations. As far as the jury were concerned, these were simply prior inconsistent statements made by the witness.

The appellants argue that the decision of Belzil J.A. with respect to the intercepted phone conversations is erroneous because he appeared to be under the impression that the conversations in question were only between Jordan and Wolton. It is clear from the transcripts of the trial that the Crown also made use of intercepted conversations between Jordan and Schimmens. The appellants argue that this fact invalidates the reasoning behind the Court of Appeal's dismissal of that ground of appeal. However, in my view this does not affect the overall finding of the Court of Appeal. The more important point to be drawn from the above cited passage is that the Crown did not seek to introduce the conversations as evidence, and used them only in the cross-examination of the witness Jordan.

The Crown made use of the previous inconsistent statements pursuant to s. 11 of the Canada Evidence Act, R.S.C., 1985, c. C-5, which reads:

11. Where a witness, on cross-examination as to a former statement made by him relative to the subject-matter of the case and inconsistent with his present testimony, does not distinctly admit that he did make the statement, proof may be given that he did in fact make it, but before that proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.

The proper procedure under this section is explained by Professor Bryant in "The Adversary's Witness: Cross-Examination and Proof of Prior Inconsistent Statements" (1984), 62 Can. Bar Rev. 43, at pp. 60-61:

It requires counsel to ask the witness whether he did make such and such a statement. In order that the witness may adequately respond to this question, counsel must first identify the circumstances and the occasion of the making of the former statement so that the witness has an opportunity to recall it. As a minimum, counsel should advise the witness of "the time, place and persons involved in the supposed contradiction" together with the particulars of the statement. If these suggestions do not refresh the witness's memory, counsel may read the pertinent parts of the alleged statement to the witness. In the event the witness "distinctly admits" that he made that statement or that part, there is no need to independently prove the contradiction.

The procedure outlined above was followed by Crown counsel in the present case. Since Jordan ultimately admitted that she had made the statements in question, there was no need for the Crown to make independent proof of the statements.

The following excerpts from the transcript of the trial serve as an illustration both of the procedure followed by the Crown and the admission of Jordan that she had made the inconsistent statements:

Q.That conversation took place at 1:25 I suggest to you, on the afternoon of March 5. About an hour later, Miss Jordan, about an hour later that same day, did Mr. Schimmens phone back and ask you once you said hello, did he say, "Did they make it?" meaning Guy Chittick and Brian Sager, and you said, "Yeah", and he said, "Are they both there?" And you said, "Both of them. Do you want to talk to them?" And he said, "Yeah". And he then spoke to Guy Chittick. Do you remember that? Let me keep reading then. After he spoke to Guy Chittick, he spoke to Brian Sager, and then -- incidentally, you would have been present while he was speaking to Sager, and Sager at that time was at page 20 of the transcript. And then you got back on the phone, and he said, that is John Schimmens said to you, "So, what's happening babes?" And you said, "Notin. I'm watching Another World." John said, "Hmm." You said, "They're doing their thing," meaning Chittick and Sager are reading the transcript, and John said, "Uh hmm. Well, says he figures it'll take him a couple of days to read that. It shouldn't take that long." You say, "At the most." John says, "A couple of hours." You say, "Yes." John says, "Steady reading. Want some copies?" You say, "Huh?" He says, "Copy?" You say, "Yeah." Does that refresh your memory?

A.Yes.

Q.That did happen, didn't it?

A.Yes.

Q.And Miss Jordan, you lied to us here under oath this morning when you said that to your knowledge Brian Sager had not read that transcript?

A.At the time I couldn't remember, but he did.

Q.You didn't remember? You paid the man who dropped him off at your house. You paid him $10.

A.Mmm hmm.

Q.You lied to us this morning when you said John hadn't arranged that, didn't you?

A.Yup.

Q.That last conversation I read you, that took place at 2:16 in the afternoon on March 5. So, the first call was at 1:25 to tell you he would be over, at 2:16 to ask if he'd come yet and how far he'd gotten, at 3:09 the third call that afternoon March 5 between John Schimmens and you. He says to you jokingly, "Is this the Jordan residence?" And you say, "Yeah." And he says, "Okay." And you say, "Oh." And John Schimmens says to you, "Still reading that?" meaning is Sager still reading the transcript, and you say, "Yeah". He says, "Oh." And you say, "He's in the bedroom." "Yeah", meaning Brian Sager was in the bedroom reading the transcript of the preliminary inquiry; is that right?

A.I can't remember if he was in the bedroom. He might have been in the bedroom.

Q. You remember this conversation. What?

A. Sure, yup.

What was "proven" by the Crown in cross-examination was not the content of the earlier statements made by the witness Jordan. Rather, it was the simple fact that contradictory statements had been made by that witness. Jordan's subsequent admissions that she lied to the jury, and her explanations of the circumstances of her deceit formed a part of her testimony at trial. Neither the fact that the Crown proved that she had contradicted herself, nor Jordan's own testimony relating to the phone conversations necessarily imply that the intercepted communications became evidence in the trial pursuant to the terms of s. 178.16 of the Criminal Code.

In R. v. Gamble and Nichols (1978), 1978 ALTASCAD 125, 40 C.C.C. (2d) 415, the Alberta Supreme Court, Appellate Division, was faced with a situation where one of the accused was cross-examined as to an intercepted private communication which had previously been ruled inadmissible. In dismissing the appellant's appeal on this point Sinclair J.A. for the Court observed at pp. 424-25:

Finally, before leaving the point, I cannot see how Part IV.1 of the Code can be interpreted as prohibiting the recipient of a private communication from testifying as to the contents of that communication.

I agree. There was nothing in the Criminal Code to stop Glenda Jordan from testifying as to her previous conversations with the accused Schimmens or with Wolton, whether they were intercepted or not. Had she been questioned, for example, about a prior conversation with a neighbour, her own testimony concerning that conversation would form an incontestable part of the record. The hearsay nature of the conversation and the fact that it may have been private are immaterial once the witness decides to give testimony in relation to the conversation. Under such circumstances, the means by which the Crown has been made aware of the existence of a prior communication are immaterial. It is only when the witness denies the existence of the previous conversation that the Crown must take steps to prove it.

When, as in the present case, the intended and actual recipient of the intercepted communication chooses to testify as to the content of the communication, it would be paradoxical indeed if such person were prohibited from talking about her own previous conversations on the ground that her privacy was being protected.

Since writing these reasons, I have had the advantage of taking cognizance of the reasons of my colleague, Justice McLachlin. Upon further reflection, I tend to agree with her that the best approach in the interest of fairness to the accused, an argument not raised by counsel before us, would be for judges to hold a prior voir dire on the admissibility of the intercepted conversation on which the prosecution relies and wishes to question a witness, whether or not it is then formally tendered in evidence.

However, since in the present case it is now known that the intercepted conversation in question was made with prior judicial authorization, I see no point in ordering a new trial. In my view, such a result would not be in the best interest of the administration of justice.

I would accordingly dismiss the appeal.

Appeal allowed, L'HEUREUX-DUBÉ J. dissenting.

Solicitors for the appellant Alan Gustaf Nygaard: O'Brien Devlin Markey MacLeod, Calgary.

Solicitors for the appellant John Alexander Schimmens: Pringle, Brimacombe & Sanderman, Edmonton.

Solicitor for the respondent: The Attorney General of Alberta, Calgary.