r. v. chesson, [1988] 2 S.C.R. 148
Lorelei Vanweenan and John Chesson Appellants
v.
Her Majesty The Queen Respondent
indexed as: r. v. chesson
File Nos.: 19501, 19581.
1987: October 23; 1988: September 29.
Present: Beetz, Estey*, McIntyre, Lamer and Wilson JJ.
on appeal from the court of appeal for alberta
Criminal law ‑‑ Interception of private communications ‑‑ Admissibility of evidence ‑‑ Interceptions authorized by court ‑‑ Police surreptitiously installed a listening device in co‑accused's vehicle ‑‑ Device wired to vehicle's battery which provided power for its transmitter ‑‑ Whether police action in installing the listening device lawful ‑‑ Whether device authorized by Part IV.1 of the Criminal Code ‑‑ Whether authorization permitting the use of the device employed.
Criminal law ‑‑ Interception of private communications ‑‑ Admissibility of evidence ‑‑ Interceptions of communications of a person not named in authorization ‑‑ Whether Crown may rely on the basket clause in authorization to introduce interceptions in evidence ‑‑ Whether unnamed person in authorization a known or unknown person for the purposes of Part IV.1 of the Criminal Code ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 178.12(1)(e).
Criminal law ‑‑ Interception of private communications ‑‑ Admissibility of evidence ‑‑ Interceptions of communications of a person not named in authorization made during conversations with persons whose communications were lawfully intercepted ‑‑ Whether interceptions of unnamed person's communications admissible ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 178.16(1).
Appellants, V and C, were jointly charged along with several others with conspiracy to commit robbery and kidnapping. The Crown's case was largely dependent on certain private communications of the appellants which were intercepted under a judicial authorization while the police were investigating certain individuals concerning offences not connected with the present case. The authorization permitted the police to intercept private communications of four named individuals, including W, V's boy friend, as well as those of unknown persons. Neither of the appellants was named in the authorization. During the investigation, evidence revealed that W, the two appellants and two other individuals had revived a plan to rob a supermarket by kidnapping the cashier and forcing her to open the safe. Acting under the authorization granted earlier, the police were able to place surreptitiously a short‑range listening device in W's motor vehicle. The device was wired to the vehicle's battery which provided power for its transmitter. It was not disputed that in this case the device caused no injury to either vehicle or battery. On a voir dire, the trial judge held that the intercepted communications of the appellants were all unlawful under Part IV.1 of the Criminal Code, and excluded them from evidence. As a result, he acquitted both appellants. On appeal, the Court of Appeal overturned the acquittals and ordered a new trial. This appeal is to determine (1) whether the surreptitious installation in a motor vehicle by police of a listening device, connected to the battery of the vehicle, constitutes an unlawful interception; (2) whether V is a person whose private communications were within the contemplation of the authorization; and (3) whether her private communications were admissible in view of the fact that they were made to persons whose communications were lawfully intercepted under the authorization.
Held: V's appeal should be allowed and C's appeal should be dismissed.
Per Beetz, McIntyre and Lamer JJ.: A covert or a surreptitious entry into private property for the purpose of installing an authorized listening device as an incident to the execution of a valid authorization is a power contemplated "by necessary implication and unavoidable inference" in Part IV.1 of the Criminal Code. Therefore, despite the fact that the entry might otherwise amount to unlawful conduct, the interception would be lawful under s. 178.16(1)(a) of the Code as having been authorized by Parliament. If the interception conforms with the authorization and it is carried out within the powers given in Part IV.1, the interception has been lawfully made. Here, appellants' contention that the use of a device connected to and draining the vehicle's battery was unlawful and unauthorized must be rejected. Devices which depend for their operation on an external power source such as an electrical socket or a car battery are not excluded from the range of interception devices authorized by the Code. The use by the police of this device was also permitted under the authorization since its clauses did not impose a limitation on the type of device to be used.
V's communications were not caught by the authorization and were inadmissible. Because she was not named in the authorization, V's communications could only be lawfully intercepted if they qualified as those of an "unknown" person under the basket clause in the authorization. For the purposes of Part IV.1 of the Code, a particular person is "known" if she is a person whose identity was known to the police at the time they applied for the authorization and if she is a person "the interception of whose private communications there are reasonable and probable grounds to believe may assist the investigation of the offence" (s. 178.12(1)(a)). An "unknown" person is a person who does not meet these two conditions. In this case, the police knew of the existence of V when they applied for the authorization and, on the basis of the total knowledge the police had about her association with W, including her close relationship and her joint criminal activities with him, it was reasonable to assume that her private communications would, or could, assist the investigation of the offences outlined in the authorization. V therefore did not qualify as an "unknown" person and the Crown could not rely on the basket clause to introduce in evidence her private communications. She was a "known" person as defined in Part IV.1 of the Code and, not being named in the authorization, her private communications could not be intercepted under the authorization.
The Crown may not adduce evidence of the interception of V's private communications on the basis that they were made during conversations with persons whose communications were lawfully intercepted. Section 178.16(1) of the Code provides in the clearest terms that an intercepted private communication is inadmissible as evidence against the originator thereof or the person intended to receive it, unless the interception was lawfully made or the originator of it or the person intended by the originator to receive it has consented to the admission of the evidence. Here, V's communications were at issue. Their interception was unlawful and V did not consent to their admission.
Per Wilson J.: All forms of entry are not authorized by necessary implication in Part IV.1 of the Criminal Code but only those forms which represent the least intrusive way of implementing the authorization. Accordingly, if an authorization can be implemented without violation of the criminal or civil law, the authority to commit such a violation should not be read into it. Such violation is not in such a case authorized by necessary implication. The police must act in a responsible fashion and intrude upon the accused's privacy no more than is reasonably necessary in order to instal the device. The manner of entry and installation is therefore relevant under s. 178.16(1)(a) of the Code and it is still for the courts to determine whether the particular form of entry and installation in issue was the least intrusive means that could reasonably have been employed in order to implement the authorization. Only then will it have been authorized by necessary implication and only then will it have been, in the words of s. 178.16(1)(a), "lawfully made". In this case, the police acted responsibly in connecting the device to the vehicle's battery since otherwise repeated intrusions would have been required in order to change the batteries in the device. The entry and installation was accordingly "lawfully made".
Cases Cited
By McIntyre J.
Applied: Lyons v. The Queen, [1984] 2 S.C.R. 633; Wiretap Reference, [1984] 2 S.C.R. 697; referred to: R. v. Commisso, [1983] 2 S.C.R. 121; Eccles v. Bourque, [1975] 2 S.C.R. 739; Colet v. The Queen, [1981] 1 S.C.R. 2; R. v. Landry, [1986] 1 S.C.R. 145; R. v. Lawrence, [1988] 1 S.C.R. 619; R. v. Welsh and Iannuzzi (No. 6) (1977), 32 C.C.C. (2d) 363; R. v. Samson (1983), 36 C.R. (3d) 126; R. v. Crease (No. 2) (1980), 53 C.C.C. (2d) 378; R. v. Blacquiere (1980), 57 C.C.C. (2d) 330; R. v. Meidel (1984), 11 C.C.C. (3d) 77; Goldman v. The Queen, [1980] 1 S.C.R. 976.
By Wilson J.
Referred to: Lyons v. The Queen, [1984] 2 S.C.R. 633; Wiretap Reference, [1984] 2 S.C.R. 697; R. v. Ninos and Walker, [1964] 1 C.C.C. 326; R. v. Creaghan (1982), 1 C.C.C. (3d) 449; R. v. Commisso, [1983] 2 S.C.R. 121.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34 [am. 1973‑74, c. 50, s. 2], ss. 178.12(1)(e) [rep. & subs. 1976‑77, c. 53, s. 8], 178.13(2)(c) [idem, s. 9], 178.16(1)(a) [idem, s. 10], 386(1), (2), 387(1)(c), 618(2)(a) [rep. & subs. 1974‑75‑76, c. 105, s. 18].
Authors Cited
United States. National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance. Commission Studies. Washington, 1976
.Watt, David. Law of Electronic Surveillance in Canada. Toronto: Carswells, 1979.
APPEAL from a judgment of the Alberta Court of Appeal (1985), 39 Alta. L.R. (2d) 331, 62 A.R. 64, [1985] 6 W.W.R. 289, 21 C.C.C. (3d) 68, 47 C.R. (3d) 157, allowing the Crown's appeal from the acquittals of the accused on a charge of conspiracy to commit robbery and kidnapping and ordering a new trial. Vanweenan's appeal is allowed and Chesson's appeal is dismissed.
James J. Ogle and Alain Hepner, for the appellants.
Earl C. Wilson, for the respondent.
The judgment of Beetz, McIntyre and Lamer JJ. was delivered by
1. McIntyre J.‑‑This appeal is taken as of right, pursuant to s. 618(2)(a) of the Criminal Code. The appellants were jointly charged along with several others with conspiracy to commit robbery and kidnapping. They were tried in the Court of Queen's Bench of Alberta by a judge sitting without a jury. The Crown's case was largely dependent on certain private oral and telephone communications of the appellants which were intercepted under a judicial authorization, granted on June 29, 1983. On a voir dire, the trial judge held that the interceptions were all unlawful under Part IV.1 of the Code, and excluded them from evidence. As a result, he acquitted both appellants. The Crown succeeded in an appeal to the Alberta Court of Appeal. The acquittals were unanimously overturned and a new trial was ordered. This appeal resulted.
2. The broad issue in this Court was whether the interceptions were obtained within the provisions of Part IV.1 of the Criminal Code. Concerning both appellants, the issue arises as to whether the surreptitious installation in a motor vehicle by police of a listening device, connected to the battery of the motor vehicle, constitutes an unlawful interception. With respect to Vanweenan alone, further issues arise as to whether she is a person whose private communications were within the contemplation of the authorization, and whether her private communications were admissible in view of the fact that they were made to persons whose communications were lawfully intercepted under the authorization. A third issue was raised by Vanweenan relating to the reach of the authorization which it was not necessary to decide.
Facts
3. In December, 1982, one Neil Whiteman became engaged in a plan to rob a Calgary supermarket. He obtained from an employee of the store, who later gave evidence for the Crown at his trial, information as to the layout and operation of the store, including the location of the safe, and the name and identity of the head cashier who had a key to the safe. The plan was that the head cashier would be kidnapped in the store's parking lot in the evening after store‑closing. She would then be forced to re‑enter the store and open the safe. On December 19, 1982, the head cashier on opening her car door saw a masked man hiding in the back seat of her car. She slammed the door shut and ran in one direction. The masked man ran in another direction and the store remained secure. No arrests were made.
4. In June, 1983, the police were investigating Whiteman and others, not including the appellants, concerning several property offences not connected with charges in the case at bar. For this purpose on June 29, 1983, they applied for and were granted by Waite J., of the Court of Queen's Bench of Alberta, a judicial authorization, valid for 60 days, which empowered designated persons to intercept telecommunications and oral communications as set out in the authorization:
. . . and for such purpose to install, monitor, or remove any electromagnetic, acoustic, mechanical or other device including where necessary, entering those places set out in Paragraphs 3 and 4 herein that may be required to implement this Authorization.
Paragraph 3 named four known persons whose communications could be intercepted and four addresses in Calgary where the interceptions could be made. Neither of the appellants was named in the authorization. Paragraphs 3 and 4 also authorized the police to intercept private communications of the four named individuals, as well as those of unknown persons:
. . . at any other place, stationary or mobile, in the Province of Alberta, that the known persons are using or attending or can be reasonably expected to use or attend.
The offences in respect of which the authorization permitted the interceptions were theft, conspiracy to commit theft, possession of stolen property, conspiracy to possess stolen property, breaking and entering, and conspiracy to break and enter.
5. The Crown's position was that as a result of its investigation and surveillance evidence had been revealed that Whiteman, the two appellants, and two other individuals had revived the plan to rob the supermarket by kidnapping the cashier and forcing her to open the safe. The Crown claimed that Whiteman and his girlfriend, the appellant Vanweenan, in pursuit of this scheme placed the head cashier under surveillance by following her in Whiteman's truck. While Whiteman and Vanweenan were following and observing the cashier, the police were following and observing Whiteman and Vanweenan. To further the investigation relating to the robbery of the supermarket, the police concluded that they might procure evidence by placing a listening device in Whiteman's truck. On July 7, 1983, acting under the authorization which had been granted earlier, the police were able to place surreptitiously a short‑range listening device in Whiteman's truck. It was wired to the truck's battery which provided power for its transmitter.
6. At trial, the technician who installed the device in the truck said that although the device drew power from the battery, it had no negative effect upon the battery because once the vehicle started it would recharge and restore any lost power. He acknowledged that in theory the device could drain all power from the battery, rendering it wholly inoperative, but this would occur only if it were left in the vehicle and the vehicle itself was not started for thirty consecutive days. It was not disputed that in this case the device caused no injury to vehicle or battery.
7. Surveillance was maintained until the end of July 1983 when the plan to rob the supermarket was again abandoned. The various parties to these events were arrested, including the two appellants who pleaded not guilty and proceeded to trial.
8. The intercepted private communications, which were tendered as evidence by the Crown, include (a) conversations between Vanweenan, who was not named in the authorization, and Neil Whiteman, who was named; (b) a conversation between Vanweenan and Ted Christianou, neither of whom was named in the authorization; (c) a conversation between Vanweenan, Chesson and Whiteman; and (d) conversations between Chesson and an unidentified person in the truck.
Judgments
9. The trial judge at the conclusion of a voir dire on the question of the admissibility of the interceptions held that none of the intercepted communications of the appellants were receivable in evidence. He was of the view that the surreptitious entry into Whiteman's vehicle to plant the listening device constituted a trespass and a criminal mischief under s. 387(1)(c) of the Criminal Code (interfering with the lawful use of property). He concluded that all interceptions made from the truck, which included all those sought to be tendered against Chesson and some of those against Vanweenan, were unlawfully made and therefore inadmissible under s. 178.16 of the Code. He also concluded that all of the communications of the appellant Vanweenan were inadmissible because they were not caught by the authorization. She was not named in the authorization, therefore her communications could be lawfully intercepted only if she was an "unknown" person within the terms of the basket clause. She could only be an unknown person if she was not a "known" person within Part IV.1 of the Code, a known person being one "the interception of whose private communications there are reasonable and probable grounds to believe may assist the investigation of the offence" (s. 178.12(1)(e)). At the time they applied for the authorization, the police knew Vanweenan was Whiteman's girlfriend and that they had been associated together in criminal activities in the past. The trial judge also noted that on the voir dire the police investigator managing the case admitted that from the total knowledge the police had about Vanweenan's relationship with Whiteman, it was reasonable to believe that she would be able to assist in the investigation of the property offences covered by the authorization. He therefore concluded that Vanweenan was a known person as defined in Part IV.1 of the Code and, not being named in the authorization, her intercepted communications were not admissible.
10. In the Court of Appeal, Laycraft C.J.A. delivered the unanimous judgment of the court (Laycraft C.J.A., Belzil J.A. and McBain J. (ad hoc)). The Crown's appeal was allowed and a new trial ordered. As to the interceptions made by the planting of the listening device in Whiteman's vehicle, he observed that in view of this Court's judgment in Lyons v. The Queen, [1984] 2 S.C.R. 633, and the Wiretap Reference, [1984] 2 S.C.R. 697, decisions rendered after that of the trial judge in this case, it was settled that authorizations giving the police express power to enter surreptitiously upon private premises for the purpose of installing listening devices were authorized under Part IV.1 of the Code. He also rejected the argument that Lyons was distinguishable on the basis that the listening device drew on the vehicle battery and, in theory, would damage or destroy it. This fact, it had been argued, made the interceptions unlawful as resulting from criminal mischief, under s. 387(1) of the Code. In rejecting this argument, the Court of Appeal expressed the view that "wilfully" in s. 387(1) of the Code was defined in s. 386(1) as the doing of an act which will probably produce the prohibited result, whereas in this instance damage or destruction of the battery was only a possibility. Damage to or destruction of the battery would only result, according to the evidence, if the truck were unused for thirty days. The police would not have planted the device in such case since their object would have been frustrated. They planted the device only in the expectation and virtual certainty that the vehicle would be kept in use. They, therefore, never contemplated any injury to the battery. This determined the issue against Chesson.
11. As to whether Vanweenan was a known person, Laycraft C.J.A. considered that the question to be determined was not one of her guilt or innocence of the crimes being investigated or her participation in them. Rather, the relevant question for determination was whether or not she was a person whose communications might assist in the investigation of the offence. The judgment of the court is now reported at (1985), 47 C.R. (3d) 157. He said, at p. 165:
The question here was not whether Vanweenan might be a party to the offences named in the authorization. Rather the question was whether the interception of her private communications might assist the investigation.
In my opinion the bare facts known did not constitute reasonable and probable grounds for the belief that the interception of Vanweenan's private communications might assist the investigation. That she was Whiteman's girlfriend did not provide any reasonable and probable ground to believe he would tell her of the offences under investigation or, further, that she would tell someone else. The additional factor of her previous involvement with him in drug offences does not add sufficient additional grounds. Authorizations are not to be granted indiscriminately on the basis merely of past association in different criminal activity or merely because of a social or marital relationship. In my opinion an authorization could not have been granted naming Vanweenan as a subject of interceptions on the basis of the two facts known. She was not, therefore, a "known" person within the meaning of s. 178.12(1)(e) of the Criminal Code.
He went on and, after reviewing several of the authorities, concluded that even if Vanweenan were a "known" person, within the meaning of Part IV.1 of the Code, her communications were validly intercepted under the basket clause in the authorization. He expressed the view that whether a person is known or unknown, his communications may be lawfully intercepted under an appropriately worded basket clause. He therefore concluded that the basket clause authorized the interception of the communications of Vanweenan and Whiteman and Vanweenan and Christianou.
12. In this Court, the appellant Chesson advanced only one ground upon which he sought to have his appeal allowed and his acquittal restored. It was expressed in these words in his factum:
The Court of Appeal erred in law in holding that the placing of an acoustic device by police in a car, which device depended for its power source on the car battery, did not in law constitute an offence contrary to s. 387 of the Criminal Code.
13. The appellant Vanweenan advanced four grounds of appeal in her factum, one of which was a reiteration of the ground advanced by Chesson, and the three others may be conveniently expressed in two propositions. Firstly, it was contended on her behalf that it was error on the part of the Court of Appeal to overrule the finding of the trial judge that she was a "known" person at the time of the application for and the granting of the authorization; secondly, it was error to hold that whether or not she was a known person, her communications were lawfully intercepted under the basket clause, or were admissible because they were communications with a person named as a "known" person or otherwise authorized in the authorization.
14. The approach to the admissibility of evidence in wiretap cases rarely depends upon questions of relevance or probative value or any of the other considerations which arise from time to time with evidentiary problems. The question in each case is, subject to limited exceptions not relevant here, simply one of legality and it is limited to whether the provisions of Part IV.1 of the Criminal Code have been complied with. As succinctly stated by Dickson J. (as he then was), in Lyons, supra, in a dissenting judgment but not on this point, at p. 640:
For purposes of Part IV.1, therefore, not only is the manner in which evidence has been obtained relevant for its admissibility, legality has become the sine qua non for admissibility.
Part IV.1 gives statutory force to this principle in s. 178.16(1)(a). It follows, then, that in this case, like the great majority of wiretap cases, the issue of the admissibility of evidence will begin and end with the question whether the evidence was obtained by the police in compliance with the provisions of Part IV.1 of the Code.
15. It should be observed by way of introduction that the appellants do not contest the validity of the authorization; they challenge powers conferred by the authorization and the fact that the order itself authorizes the interception of any communications of Vanweenan. Moreover, the fact that the evidence relating to the alleged conspiracy to kidnap the cashier and rob the supermarket was procured under an authorization which did not mention these offences does not invalidate the interceptions: see R. v. Commisso, [1983] 2 S.C.R. 121. Where, as in this case, the police obtain an authorization in good faith and in a bona fide investigation of the offences listed in the authorization they obtain evidence pertaining to other offences, the fortuitous interception is not rendered unlawful. As noted by Lamer J. in Commisso, any other rule would run counter to the purposes of Part IV.1; it is the privacy of those intercepted and not the subject‑matter of conversations that is protected by Part IV.1 of the Criminal Code. It is to be noted, as well, that the Court's decision in Lyons, supra, and the Wiretap Reference, supra, make it clear that where there is a surreptitious entry by the police on premises in order to instal listening devices which depend for their operation upon such entry, interceptions so obtained are lawful in the absence of a prohibition in the authorization. It was pointed out by Estey J. in Lyons that Part IV.1 of the Code contemplates, requires and authorizes "by necessary implication and unavoidable inference" such entry upon private property where, as here, the equipment authorized to be used requires such entry for its effective operation.
Truck Interception by Use of Vehicle Battery
16. As earlier mentioned, the police, acting under the authorization, surreptitiously installed a listening device in Whiteman's truck which drew its power from the truck's battery. The Lyons case, supra, and the Wiretap Reference, supra, in my view clearly dispose of the question of entry. As noted above, it was there established that a covert or a surreptitious entry into private property for the purpose of installing an authorized listening device as an incident to the execution of a valid authorization is a power contemplated "by necessary implication and unavoidable inference" in Part IV.1 of the Code. Therefore, despite the fact that the entry might otherwise amount to unlawful conduct, the interception would be lawful under s. 178.16(1)(a) as having been authorized by Parliament. If the interception conforms with the authorization and it is carried out within the powers given in Part IV.1, the interception has been lawfully made. The critical issue in any case where police power is questioned is whether lawful authority exists for it: Eccles v. Bourque, [1975] 2 S.C.R. 739; Colet v. The Queen, [1981] 1 S.C.R. 2, and R. v. Landry, [1986] 1 S.C.R. 145. It follows, then, that the real issue here is not, as asserted by the appellants, whether the conduct amounts to criminal mischief but is simply whether the police action in installing the listening device in the truck falls within the authority conferred by Part IV.1 of the Criminal Code. In the face of the decisions in Lyons and the Wiretap Reference, there can be only one answer as far as the actual entry and installation goes. It was clearly lawful.
17. The real point of argument raised by the appellants in respect of the interception, however, is that the use of a device connected to and draining the truck's battery was not authorized and is unlawful. In my view, this argument must be rejected. Estey J. in Lyons pointed out that Part IV.1 authorizes the use of all manner of interception devices, acoustic, mechanical, electromagnetic, and others. Radio transmitters are among the most commonly used and well‑known interception devices. They clearly come within the contemplation of Part IV.1 of the Criminal Code. Radio transmitters which rely for power on a source within the invaded premises‑‑because they do not require replacement of batteries and the repeated intrusions this process would require‑‑are favoured by the police. These devices have long existed and are frequently used: see Studies for the National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance (1976), at pp. 174 and 204, and Watt, Law of Electronic Surveillance in Canada (1979), at p. 183. The existence of these devices, depending for their operation on an external power source such as an electrical socket or a car battery, were undoubtedly known to Parliament in the long process of review and consideration which led to the enactment of Part IV.1 of the Code. If Parliament had desired to exclude such devices from police use, it could have readily done so. Parliament did not do so. Rather, in Part IV.1 it authorized the use, subject to judicial control, of all manner of devices capable of intercepting private communications. I see no basis on which this Court would be justified in carving out an exception from the general provisions of the Code which would forbid the use of this type of device. I would support this view by reference to the words of Estey J. in Lyons, at pp. 663‑64:
Part IV.1 contemplates at least three fundamental processes or devices which may be employed in the interception of a private communication: electromagnetic (radio, telephone and optical), acoustic and mechanical devices. There is no particular provision relating to each of these special types or forms of communication. All are embraced in the same general provisions. It is therefore clear that Parliament, in Part IV.1, is legislating with reference to the employment of any equipment or procedure relating to the electromagnetic spectrum (ranging as it does through the spectrum from radio waves to light waves), the acoustic vibrations above or below and including the range of the human ear, and to mechanical devices, for the purpose of intercepting oral (and other) communication occurring anywhere.
In my opinion, the "clear and irresistible implication" to be drawn from Part IV.1 of the Code is that devices, such as the one used in this case, are not excluded from the range of interception devices authorized by the Code.
18. The remaining question with respect to the interception in Whiteman's truck is whether the authorization in this case permitted the use of the device employed. In my view, there can be no doubt it did. The opening passage is in these terms:
it is ordered that any person who has been designated pursuant to Section 178.13(2.1) of the Criminal Code and any other person acting in aid of a designated person, are hereby authorized to intercept private communications as hereinafter set out, and for such purpose to install, monitor, or remove any electromagnetic, acoustic, mechanical or other device including, where necessary, entering those places set out in Paragraphs 3 and 4 herein that may be required to implement this Authorization.
Clause 5 of the authorization provides:
The manner of interception of the private communications of the known and unknown persons is to listen to and/or to record the private communications by use of an electromagnetic, acoustic, mechanical or other device or apparatus that is capable of being used to intercept a private communication.
These clauses impose no limitation on the type of device to be used. The use by the police of this device, then, is authorized under the authorization. It may be noted, as well, that in R. v. Lawrence, [1988] 1 S.C.R. 619, this Court held that a clause authorizing the police to use in their discretion "any electromagnetic, acoustic, mechanical or other device" contemplated by Part IV.1 of the Code is sufficient to conform with the requirement in s. 178.13(2)(c) that an authorization "generally describe the manner of interception that may be used". The interceptions by the device installed in Whiteman's truck were lawfully made. Since this was the only ground raised by the appellant Chesson, his appeal must fail and be dismissed. The additional grounds raised by Vanweenan must be considered.
Additional Grounds Advanced by Vanweenan
19. The essence of Vanweenan's argument may be shortly stated. She says, I am not named in the authorization. Therefore, my private communications may not be intercepted and admitted in evidence against me unless they qualify as those of an "unknown" person under the basket clause. The basket clause cannot extend to my communications because I am not an "unknown" person. In considering this argument, the provisions of Part IV.1 of the Code must be examined. Section 178.12(1)(e) requires inter alia that on an application for an authorization the deponent must by affidavit state "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". Section 178.13(2)(c) requires inter alia that the authorization itself shall state "the identity of the persons, if known, whose private communications are to be intercepted". The implication which the courts have drawn from the use of the words "if known" in the latter section is that an authorization may empower police to intercept communications of persons "unknown" to the police when they apply for the authorization. This proposition was established very early in the day by Zuber J.A., speaking for the Ontario Court of Appeal, in R. v. Welsh and Iannuzzi (No. 6) (1977), 32 C.C.C. (2d) 363, at p. 375, where he said:
Section 178.13(2)(c) itself provides that an authorization can provide for the interception of communications of unknown persons. The fact the legislation specifically provides for this kind of authorization reinforces the argument that if the authorization does name only specific persons, the limit of the authorization must be adhered to.
(See as well Watt, op. cit., at pp. 97‑99.)
A clause in an authorization, such as clause 4 in the case at bar, which authorizes the interception of private communications of unknown persons is known as a "basket" clause. It permits the interception of private communications of any person unknown to the police at the time of the application for the authorization who communicates at locations designated in the authorization: see R. v. Samson (1983), 36 C.R. (3d) 126 (Ont. C.A.) It is apparent then that an authorization with a basket clause may permit the interception of communications from two groups, the known and the unknown persons.
20. How is it to be decided whether a particular person is known or unknown for the purposes of Part IV.1 of the Code? In my opinion, the answer to this question is to be found in Part IV.1 itself. The starting point is s. 178.12(1)(e) of the Code, which sets out the two pre‑conditions to be met before a person may be lawfully identified and named in an authorization and thus be a known person. The first and most obvious condition is that the existence of that person must be known to the police. Second, and equally important, however, is the additional requirement that the person satisfy the standard of being one "the interception of whose private communications there are reasonable and probable grounds to believe may assist the investigation of the offence". If at the time the police apply for a judicial authorization a person meets both these criteria, he will be a known person and therefore, if the interceptions of his communications are to be admitted against him, he must be named in the authorization as a target for interception. If he is not named his interceptions are not receivable since there is no authority to make them. A "known" person, then, for the purposes of Part IV.1 of the Code is one who satisfies the two criteria in s. 178.12(1)(e).
21. An unknown person, therefore, is a person who does not meet these conditions at the time the police apply for an authorization. Accordingly, for the Crown to rely on a basket clause to introduce interceptions of private communications in evidence, they must be made by one whose existence was not known to the police at the time of the application for the authorization, or who was not at that time known to the police as one "the interception of whose private communications there are reasonable and probable grounds to believe may assist the investigation of the offence". It is common ground that in the present case the police knew of the existence of Vanweenan when they applied for the authorization. To decide, then, whether the Crown can tender her interceptions under the basket clause, it must be determined whether she was one "the interception of whose private communications there are reasonable and probable grounds to believe may assist the investigation of the offence". If she was, the Crown correctly concedes that it may not rely on the basket clause to tender her private communications for she does not qualify as an unknown person: see R. v. Crease (No. 2) (1980), 53 C.C.C. (2d) 378 (Ont. C.A.); R. v. Blacquiere (1980), 57 C.C.C. (2d) 330 (P.E.I.S.C.), and R. v. Meidel (1984), 11 C.C.C. (3d) 77 (B.C. Co. Ct.)
22. It was argued that the question whether a person is a "known" person in this context is a question of fact and, accordingly, it was error for the Court of Appeal to entertain the appeal, because no appeal could lie from the acquittal on a question of fact. I would agree with the Court of Appeal's rejection of this argument where Laycraft C.J.A. said, at p. 164:
It is first urged that the finding that Vanweenan was a "known" person is a finding of fact not open to a Crown appeal by the provisions of s. 605. In my view that contention confuses the facts found with the result in law which flows from them. The facts found‑‑the relationship between Whiteman and Vanweenan and her previous criminal activity‑‑cannot be questioned on a Crown appeal. But whether those facts made her a "known" person within the meaning of s. 178.12(1)(e) of the Criminal Code is a question of law.
The determination of the question of law, however, depends upon the underlying finding of fact. The question then is: At the time of the application for the authorization did reasonable and probable grounds exist for the belief that the interception of her private communications could assist the investigation? I would disagree on this point with the Court of Appeal. It would seem to me that there can only be an affirmative answer to this question. Vanweenan was a known person and the Crown may not rely on the basket clause to introduce the interceptions of her communications. I would accept the trial judge's determination of this question. At (1984), 33 Alta. L.R. (2d) 85, at pp. 87‑88, he said:
I acknowledge that the deponent on the application, Detective Mosley, may have known the defendant as merely the girlfriend of Whiteman, but the fact is that there was much more information about the defendant available to him from both the police files and other investigators who were instructing him, and as he was making his application largely on information supplied by others, it was incumbent upon them, those informing him, to fully inform him of all persons known by them, that is known in the sense contemplated by the legislation. The investigator managing the case, Detective Peterson, candidly admits that from the total knowledge the police had about Vanweenan's association with Whiteman, including her close relationship with him, her alleged criminal activities, joint criminal activities with him, it was reasonable to believe that she would be able to assist in the investigation of the offences outlined in the authorization. I do not hesitate in holding that the only way such assistance could have been obtained would have been by intercepting her private communications. She certainly wouldn't have been about to co‑operate with the police and an attempt to interfere with her would have been‑‑as the detective said it would have blown the whole cover. She was, therefore a "known" person as contemplated by the legislation.
23. Vanweenan and Whiteman were close associates and in the past had joined in criminal activity. She was the girlfriend of Whiteman and surveillance of the Whiteman vehicle prior to June 29 established her use of the vehicle. She had previously been involved in criminal activity with him and on June 29, 1983 Vanweenan and Whiteman were co‑accused under an indictment with respect to drug offences. The police officer, Peterson, considered it reasonable to assume that her private communications would, or could, assist the investigation. All that was required to include her in the application was reasonable and probable grounds that her communications may assist. This test was met in the present case. I would therefore conclude that she was a "known" person and that the Crown may not rely on the basket clause.
May the Crown Adduce Evidence of the Interception of Vanweenan's Private Communications on the Basis that They Were Made During Conversations with Persons whose Communications Were Lawfully Intercepted?
24. In my view, this argument may be quickly disposed of. Section 178.16(1) provides in the clearest terms that an intercepted private communication is inadmissible as evidence against the originator thereof or the person intended to receive it, unless the interception was lawfully made or the originator of it or the person intended by the originator to receive it has consented to the admission of the evidence. The communications sought to be introduced here are those of Vanweenan. We have already concluded that the interception of her communications was unlawful and there is here no question of any consent. I would reject the suggestion that her communications are swept into the lawful interception of Whiteman and Christianou with whom she was speaking during the interceptions. She retained, because of the non‑compliance with Part IV.1 and the absence of her consent, the protection of Part IV.1 of the Code. I would refer to the passage from the majority judgment in Goldman v. The Queen, [1980] 1 S.C.R. 976, at p. 995:
In my view, the difference between the word conversation and the word communication is, in the context of this statutory provision, significant. A communication involves the passing of thoughts, ideas, words or information from one person to another. Conversation is a broader term and it would include, as all conversations do, an interchange of a series of separate communications. It is consistent with the scheme of Part IV.1, in my view, to consider that the originator of a private communication within the meaning of s. 178.1 is the person who makes the remark or series of remarks which the Crown seeks to adduce in evidence. If a person, with a reasonable expectation of privacy, speaking in an electronically intercepted conversation makes statements which the Crown seeks to use against him, he has, in my view, as the originator of those statements, the protection of the privacy provisions of the Criminal Code because those statements constitute private communications upon his part and their admissibility at any subsequent trial will depend upon the provisions of Part IV.1 of the Criminal Code. [Emphasis added.]
25. In summary, then, Vanweenan is not a "known" person whose private communications could be intercepted under the authorization, because though she was a person whose identity was known to the police and was one "the interception of whose private communications there are reasonable and probable grounds to believe may assist the investigation of the offence", she was not named in the authorization. She is not an "unknown" person whose communications could be intercepted under the basket clause because her identity was known and, as has been noted, was one "the interception of whose private communications there are reasonable and probable grounds to believe may assist the investigation of the offence".
26. As for Vanweenan, then, the appeal is allowed and her acquittal is restored. As for Chesson, however, the appeal is dismissed and the order for a new trial is affirmed.
The following are the reasons delivered by
27. Wilson J.‑‑I have had the benefit of the reasons of my colleague, Justice McIntyre, in this appeal and concur in his result and in most of his reasoning. I do, however, have a concern in one area.
28. This Court held in Lyons v. The Queen, [1984] 2 S.C.R. 633, and in the Wiretap Reference, [1984] 2 S.C.R. 697, that if an entry is required in order to implement an authorization to instal a listening device in a particular place, then the authorization by necessary implication authorizes the entry into that place as well as the installation of the device. The Court by a majority (Beetz, Estey, McIntyre and Lamer JJ.) held in Lyons that the fact that the entry constituted a trespass did not mean that the interception was not "lawfully made" within the meaning of s. 178.16(1)(a) of the Criminal Code. Dickson and Chouinard JJ. dissented on the basis that an authorization to intercept private communications does not implicitly carry with it a right to enter private premises and accordingly is not "lawfully made" within the meaning of the section.
29. The appellants submit that these cases do not authorize entries which would violate other provisions of the Criminal Code or violate other laws which it is not necessary to violate in order to implement the authorization. They conceded that if there was no violation of s. 387 of the Criminal Code, the mischief section, then the interception was "lawfully made". I agree with the courts below and with McIntyre J. that there was no violation of s. 387 in this case and I note, in particular, that s. 386(2) of the Code provides that no one can be convicted under s. 387 where the person was acting "with legal justification or excuse and with colour of right": see R. v. Ninos and Walker, [1964] 1 C.C.C. 326 (N.S.S.C. in banco), and R. v. Creaghan (1982), 1 C.C.C. (3d) 449 (Ont. C.A.)
30. I wish to stress, however, that in my view it is not every form of entry which is authorized by necessary implication under Lyons and the Wiretap Reference. Part IV.1 of the Criminal Code is headed "Invasion of Privacy" and the Part clearly represents a legislative compromise between the privacy interest of the individual and the competing interest of the public in law enforcement: see R. v. Commisso, [1983] 2 S.C.R. 121, at pp. 124‑25, per Lamer J. I am sympathetic, therefore, to the general proposition advanced by the appellants that all forms of entry are not authorized by necessary implication but only those forms which represent the least intrusive way of implementing the authorization. I think that this qualification may be implicit, although not expressly articulated, in the previous authorities. But if I am wrong in that, I believe it is a qualification to which they should be subject. Accordingly, if an authorization can be implemented without violation of the criminal or civil law, the authority to commit such a violation should not be read into it. Such violation, in my view, is not in such a case authorized by necessary implication. I do not mean to suggest, of course, that the police must go to inordinate lengths to provide maximum protection of the accused's privacy in their mode of entry and installation. I simply say that they must act in a responsible fashion and intrude upon the accused's privacy no more than is reasonably necessary in order to instal the device. I think the police acted responsibly in this case in connecting the device to the truck's battery since otherwise repeated intrusions would have been required in order to change the batteries in the device.
31. My only disagreement with my colleague then is that I believe that the manner of entry and installation is relevant under s. 178.16(1)(a). Lyons and the Wiretap Reference do not provide a conclusive answer to an allegation that the manner of entry and installation violated another provision of the Criminal Code or our civil law. There is a middle course between the positions of the majority and the minority in these cases and I would respectfully adopt it. It is still for the courts to determine whether the particular form of entry and installation in issue was the least intrusive means that could reasonably have been employed in order to implement the authorization. Only then, in my view, will it have been authorized by necessary implication and only then will it have been, in the words of s. 178.16(1)(a) of the Criminal Code, "lawfully made".
32. Vanweenan's appeal allowed; Chesson's appeal dismissed.
Solicitors for the appellant Vanweenan: Moreau, Ogle & Associates, Calgary.
Solicitors for the appellant Chesson: MacPherson & Associates, Calgary.
Solicitor for the respondent: Earl C. Wilson, Calgary.