R. v. Wiggins, [1990] 1 S.C.R. 62

Lewis Anthony Wiggins Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. wiggins

File No.: 20993.

1989: October 5; 1990: January 25.

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

on appeal from the court of appeal for british columbia

Constitutional law -- Charter of Rights -- Unreasonable search and seizure -- Evidence obtained by electronic surveillance conducted without authorization -- Conversation recorded with consent of a party to it ‑‑ Recording entered into evidence conversation -- Whether or not either s. 178.11(2)(a) or s. 178.16(1)(b) infringed Charter right to freedom from unreasonable search and seizure -- If so, whether or not justified by s. 1 of the Charter -- Criminal Code, R.S.C. 1970, c. C-34, ss. 178.11(2)(a), 178.16(1)(b) ‑‑ Canadian Charter of Rights and Freedom, ss. 1, 8, 24(2).

Evidence -- Admissibility -- Evidence obtained by electronic surveillance conducted without authorization -- Conversation recorded with consent of a party to it -- Recording entered into evidence conversation ‑‑ Whether or not either s. 178.11(2)(a) or s. 178.16(1)(b) infringed Charter right to freedom from unreasonable search and seizure -- If so, whether or not justified by s. 1 of the Charter.

Criminal Law -- Electronic surveillance -- Authorizations -- Evidence obtained by electronic surveillance conducted without authorization ‑‑ Conversation recorded with consent of a party to it -- Recording entered into evidence conversation -- Whether or not either s. 178.11(2)(a) or s. 178.16(1)(b) infringed Charter right to freedom from unreasonable search and seizure -- If so, whether or not justified by s. 1 of the Charter.

The appellant was the owner of a vessel alleged to have been used by him to carry out a scheme to import narcotics into Canada. He contacted a person who, unknown to him, was a police informer, and asked him if he would like to invest in the scheme. The informer had further conversations with the appellant while wearing a "body pack" which transmitted the conversations to the police who simultaneously recorded them. In one taped conversation, the appellant told the informer how the narcotics were obtained, transported and hidden upon his reaching British Columbia. The police conducted searches of the appellant's vessel but found no narcotics and no evidence to support the appellant's detailed account of the scheme. Appellant was convicted of conspiring to import a narcotic contrary to s. 423(1)(d) of the Criminal Code. The British Columbia Court of Appeal dismissed appellant's appeal.

This appeal was primarily concerned with the protection accorded by s. 8 of the Canadian Charter of Rights and Freedoms against electronic recording of the conversations of individuals with the police and informers in the absence of judicial authorization. Four constitutional questions were stated. The first and third queried whether or not s. 178.11(2)(a) and s. 178.16(1)(b) infringed s. 8 of the Charter and the second and fourth queried whether such infringement, if found, was justifiable under s. 1 of the Charter. A number of subsidiary issues were raised: (1) whether the Court of Appeal properly refused to allow the introduction of fresh evidence; (2) whether the trial judge should have put the defence theory to the jury; and, (3) whether certain evidence was admissible.

Held: The appeal should be dismissed. Section 178.11(2)(a) of the Code does not infringe or deny the rights and freedoms guaranteed by s. 8 of the Charter, but the interception of private communications by an instrumentality of the state with the consent of the originator or intended recipient thereof, without prior judicial authorization, does infringe the rights and freedoms guaranteed by s. 8. Section 178.16(1)(b) of the Code does not infringe or deny the rights and freedoms guaranteed by s. 8 of the Charter. It was not necessary to answer the second and fourth constitutional questions.

Per Dickson C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier and McLachlin JJ. For the reasons given in R. v. Duarte, [1990] 1 S.C.R. 000, the participant electronic surveillance conducted here by the police and their informer infringed the right to be secure against unreasonable search and seizure guaranteed by s. 8 of the Charter and was not saved by s. 1 of the Charter. The appellant did not discharge the onus of establishing that the admission of the recordings of the intercepted communications would bring the administration of justice into disrepute. The evidence, therefore, needed not be excluded.

The Court of Appeal correctly dealt with the subsidiary issues.

Per Lamer J.: The appeal should be dismissed for the reasons given in R. v. Duarte, [1990] 1 S.C.R. 000.

Cases Cited

By La Forest J.

Applied: R. v. Duarte, [1990] 1 S.C.R. 000; Palmer and Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759; referred to: Azoulay v. The Queen, 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495; R. v. Sanelli (1987), 1987 CanLII 175 (ON CA), 60 C.R. (3d) 142.

By Lamer J.

R. v. Duarte, [1990] 1 S.C.R. 000.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 8, 24(2).

Criminal Code, R.S.C. 1970, c. C‑34, ss. 178.11(2)(a), 178.16(1)(b), 423(1)(d).

APPEAL from a judgment of the British Columbia Court of Appeal (1988), 1988 CanLII 3273 (BC CA), 42 C.C.C. (3d) 303, dismissing an appeal from a conviction by Dohm J. Appeal dismissed. Section 178.11(2)(a) of the Code does not infringe or deny the rights and freedoms guaranteed by s. 8 of the Charter, but the interception of private communications by an instrumentality of the state with the consent of the originator or intended recipient thereof, without prior judicial authorization, does infringe the rights and freedoms guaranteed by s. 8. Section 178.16(1)(b) of the Code does not infringe or deny the rights and freedoms guaranteed by s. 8 of the Charter. It was not necessary to answer the second and fourth constitutional questions.

Peter Alexander Hart and Ross Laurence Senior, for the appellant.

S. David Frankel, Q.C., for the respondent.

//La Forest J.//

The judgment of Dickson C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier and McLachlin JJ. was delivered by

LA FOREST J. -- Though there are subsidiary issues, the principal issue in this appeal is the same as that raised in the companion case of R. v. Duarte, [1990] 1 S.C.R. 000. In short, this appeal is concerned with the protection accorded by s. 8 of the Canadian Charter of Rights and Freedoms against electronic recording of the conversations of individuals with the police and informers in the absence of judicial authorization.

Facts

The appellant, Lewis Anthony Wiggins, was the owner of a vessel, the Beaufort Spirit, which the Crown alleged was used by him in the execution of a scheme for the importation of narcotics into Canada. Evidence at trial showed that the appellant had contacted a person by the name of Mr. Seed, who, unknown to the appellant, was a police informer, and asked him if he would like to invest in the scheme. The informer told police about this conversation and, at their request, had further conversations with the appellant while wearing a "body pack", i.e., an electromagnetic transmitter, which transmitted the conversations to the police who simultaneously recorded them. The informer was given "seed money" by the police which he, in turn, gave to the appellant as an "investment" in the scheme. In one taped conversation, the appellant told the informer how the narcotics were obtained, that they were welded into the hull of the vessel, and how they were transported and hidden upon his reaching British Columbia. The police conducted searches of the appellant's vessel but found no narcotics and no evidence to support the appellant's detailed account of how the narcotics had been hidden in British Columbia.

At the conclusion of the trial, counsel for the appellant explained to the jury the defence theory that the appellant was lying to the informer about the narcotics being welded into the hull of the vessel and about the manner in which it had been hidden. The appellant did not testify. The trial judge gave his charge to the jury on the same day the defence made its submissions. He indicated that he would not repeat the theories of the parties as they had been well covered by the parties' counsel. The appellant was convicted of conspiring to import a narcotic contrary to s. 423(1)(d) of the Criminal Code, R.S.C. 1970, c. C-34.

The appellant then appealed to the British Columbia Court of Appeal. He first sought to introduce fresh evidence, but this request was refused on the basis of the principles enunciated in Palmer and Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759.

The appellant's various grounds of appeal were similarly rejected. The first -‑ that the trial judge erred in failing to put the theory of the defence to the jury -‑ failed because the court found this to be one of those rare cases recognized in Azoulay v. The Queen, 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495, where it was not necessary for the judge to do so. The second issue -‑ whether the trial judge erred in admitting the appellant's passport into evidence on the ground that a passport deposited with the police under the terms of his judicial interim release does not become available as evidence -‑ was disposed of on the simple ground that it was too late to raise the objection.

The third ground of appeal was that the appellant's privacy was invaded by the recording of his conversations with the informer. The court cited with approval the decision of the Ontario Court of Appeal in R. v. Sanelli (1987), 1987 CanLII 175 (ON CA), 60 C.R. (3d) 142, in which it was held that s. 178.11(2)(a) of the Criminal Code did not contravene s. 8 of the Charter and that there was no "reasonable expectation of privacy in the course of a conversation where one party to it has consented to it being intercepted and recorded". The court noted that the law does not require that "when the police are aware that someone is about to divulge a private matter to another they must seek judicial authorization before that other person may listen to what is said or secretly record what is said". The court also rejected this ground of appeal.

On the appeal to this Court, the same issues were raised but the appellant in addition argued that the Crown had suppressed evidence of the vessel's stability information booklet which, it was alleged, would support the appellant's case.

Analysis and Disposition

I shall deal first with the issue related to the interception of private communications by the police through the informer, about which the following constitutional questions were stated:

1. Does s. 178.11(2)(a) of the Criminal Code, legalizing the interception of private communications with the consent of the originator or intended recipient thereof, without the need for judicial authorization, infringe or deny the rights and freedoms guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms?

2. If s. 178.11(2)(a) of the Criminal Code does infringe or deny the rights and freedoms guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms, is it justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982?

3. Does s. 178.16(1)(b) of the Criminal Code, making admissible as evidence an intercepted private communication, where the interception was not lawfully made, with the express consent to the admission thereof of the originator or intended recipient thereof, infringe or deny the rights and freedoms guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms?

4. If s. 178.16(1)(b) of the Criminal Code does infringe or deny the rights and freedoms guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms, is it justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982?

For the reasons given in R. v. Duarte, supra, I am of the view that the participant electronic surveillance conducted by the police and an informer in this case infringes the right to be secure against unreasonable searches and seizure guaranteed by s. 8 of the Charter and is not saved by s. 1 of the Charter. However, for reasons also given in R. v. Duarte, I do not think the appellant has discharged the onus of establishing that the admission of the recordings of the intercepted communications in the present case would bring the administration of justice into disrepute. This evidence should not, therefore, be excluded. Indeed, this point is even stronger here than in R. v. Duarte, for the case for the appellant did not deny that the intercepted statements were made. His defence was simply that he was lying, a defence the jury obviously did not accept.

For the reasons given in R. v. Duarte, the issue of the constitutional validity of ss. 178.11(2)(a) and 178.16(1)(b) is not engaged in the manner in which counsel framed the issue.

As to the other issues, it is sufficient to say that, in my view, those raised before the Court of Appeal were correctly disposed of by that court, and that there is no merit to the point concerning the alleged suppression of evidence.

I would dismiss the appeal. I would reply to the constitutional questions as follows:

1. Does s. 178.11(2)(a) of the Criminal Code, legalizing the interception of private communications with the consent of the originator or intended recipient thereof, without the need for judicial authorization, infringe or deny the rights and freedoms guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms?

Section 178.11(2)(a) of the Code does not infringe or deny the rights and freedoms guaranteed by s. 8 of the Charter, but the interception of private communications by an instrumentality of the state with the consent of the originator or intended recipient thereof, without prior judicial authorization, does infringe the rights and freedoms guaranteed by s. 8.

2. If s. 178.11(2)(a) of the Criminal Code does infringe or deny the rights and freedoms guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms, is it justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982?

It is not necessary to answer this question.

3. Does s. 178.16(1)(b) of the Criminal Code, making admissible as evidence an intercepted private communication, where the interception was not lawfully made, with the express consent to the admission thereof of the originator or intended recipient thereof, infringe or deny the rights and freedoms guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms?

Section 178.16(1)(b) of the Code does not infringe or deny the rights and freedoms guaranteed by s. 8 of the Charter.

4. If s. 178.16(1)(b) of the Criminal Code does infringe or deny the rights and freedoms guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms, is it justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982?

It is not necessary to answer this question.

//Lamer J.//

The following are the reasons delivered by

LAMER J. -- For the reasons given in Duarte v. The Queen, [1990] 1 S.C.R. 000, I am of the view that this appeal should be dismissed.

Appeal dismissed. Section 178.11(2)(a) of the Code does not infringe or deny the rights and freedoms guaranteed by s. 8 of the Charter, but the interception of private communications by an instrumentality of the state with the consent of the originator or intended recipient thereof, without prior judicial authorization, does infringe the rights and freedoms guaranteed by s. 8. Section 178.16(1)(b) of the Code does not infringe or deny the rights and freedoms guaranteed by s. 8 of the Charter. It was not necessary to answer the second and fourth constitutional questions.

Solicitor for the appellant: Peter Alexander Hart, Vancouver.

Solicitor for the respondent: John C. Tait, Ottawa.