SUPREME COURT OF CANADA
Lyons v. The Queen, [1984] 2 S.C.R. 633
Date: 1984-12-20
Kristine Lyons, John Prevedoros and Brian McGuire Appellants;
and
Her Majesty The Queen Respondent.
File Nos.: 17181, 17193, and 17196. 1983: June 23; 1984: December 20.
Present: Ritchie[*], Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law - Wiretaps - Admissibility of evidence - Interceptions authorized by court - Installation of device involving trespass - Whether or not interceptions "lawfully made" - Whether or not evidence obtained admissible - Criminal Code, R.S.C. 1970, c. C-34, ss. 25, 178.1, 178.11(1), 178.12(1), 178.13(1), (2)(d), 178.16(1).
Evidence - Admissibility - Wiretap evidence - Operation to obtain evidence involving trespass - Whether or not evidence admissible.
Police officers, authorized to intercept appellants’ private communications, entered the residence of one of the appellants without consent to install a room monitoring device. None of the authorizations made reference to the manner of installing the device. Later, the appellants were tried and convicted on a charge of conspiracy to import a narcotic. Conversations intercepted by the monitoring device were introduced in evidence at trial and held admissible. The Court of Appeal dismissed appellants’ appeals but a dissenting judge concluded the evidence of the intercepted communications inadmissible in that the trespass made the interceptions not "lawfully made" within the meaning of s. 178.16(1) of the Criminal Code. The appeals were based on this dissenting judgment.
Held (Dickson and Chouinard JJ. dissenting): The appeals should be dismissed.
Per Beetz, Estey, McIntyre and Lamer JJ.: Part IV.1 of the Criminal Code, when read as a whole, clearly contemplates, requires and authorizes, by necessary implication and unavoidable inference, the placing of a radio device on the premises where the intercept is to be made, where the use of radio equipment is authorized for the interception of a private communication. Modern
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surveillance techniques involve the invasion of property by directed energy to extract private communications and no express authorization for such "entry" on the target premises is found in Part IV.1. Parliament should not be taken to have authorized the use of procedures and equipment without, at the same time, supplying the public officers undertaking these duties with the appropriate means and authority to carry them out.
The process of interception is a single undertaking carried out on authorization orders of the court and cannot be segmented into legally consequential and legally inconsequential steps. The evidence cannot be considered admissible on the one hand, and an attendant trespass, on the other, be left to be dealt with in later proceedings.
Parliament has broadly empowered the courts to authorize the use of devices to intercept designated communications. Since many of the devices allowed by the Code could not otherwise function as interception "devices", Parliament cast the section broadly so as to empower the court in its discretion to authorize the placing of a "device" inside the premises designated in the authorization, whether or not a trespass might occur and whether or not the owner of the premises was the person whose communications were to be intercepted. Parliament, however, foresaw the differences in the magnitude in the potential seriousness presented by the several interception procedures that Part IV.1 allows the court to authorize. Section 178.13(2)(d), therefore, by requiring the authorizing judge to include in the authorization "such terms and conditions as the judge considers advisable in the public interest", creates a judicial safeguard to balance the bilateral nature of Part IV.1-the shield from, and yet the instrument permitting, invasions of privacy. The authorization granted here was sufficiently broad to empower the law enforcement officers both to plant and to service the device, even when both activities involved a physical entry into the targeted premises.
lnterceptions, if "lawfully made", can be admitted in evidence. The term, however, given its presence in Part IV.1 (a mini-Code within the codified criminal law) must be interpreted to mean in accordance with Part IV.1, as opposed to in conformity with all laws. Logical impossibilities result if "unlawful" is taken to refer to Criminal Code sections not in Part IV.1, let alone to all other laws. lt was unreasonable to read s. 178.16 as rendering interceptions inadmissible because external procedures used in the operation entailed entry which
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may have amounted to trespass. The physical entry here did not amount to a breach of Part lV.1, and in particular, to a breach of s. 178.11. Indeed, once Parliament has granted the power to authorize and once that power has been exercised, the authorized conduct in law would no longer amount to trespass.
Per Dickson and Chouinard JJ., dissenting: A private communication that has been intercepted by means of any form of electronic surveillance is inadmissible pursuant to s. 178.16(1) of the Code unless the interception was "lawfully made". Thus, for the purposes of Part IV.1, the manner in which the evidence has been obtained is determinative of its admissibility.
An authorization to intercept private communications granted pursuant to Part IV.1 does not implicitly carry with it a right of entry to private premises and a judge does not possess any authority to include a right of entry as a term of an authorization pursuant to s. 178.13(2). The entries made by police to install and maintain the listening device for the purpose of intercepting the private communications in question were unauthorized and unlawful.
An interception of private communications accomplished by means of an illegal entry to private premises is not "lawfully made" within the meaning of s. 178.16(1)(a). Parliament intended any breach of the right of privacy protected by Part IV.1 should be lawful in the widest sense. There is no justification for limiting the terms of s. 178.16(1)(a) to lawfulness in obtaining the authorization or in listening to and recording the conversation. The whole process of interception including the installation of the listening device, must be lawful.
As a result of the two covert entries, the interceptions of conversations were not "lawfully made" within the meaning of s. 178.16(1)(a) and therefore ought not to have been admitted as evidence. It follows that, as the appellants were convicted on the basis of inadmissible evidence, the appeals should be allowed and new trials directed.
[Dalla v. United States, 441 U.S. 238 (1979); United States v. Scafidi, 564 F.2d 633 (1977), approved; R. v. Papalia (1984), 47 O.R. (2d) 289, considered; R. v. Dass, [1979] 4 W.W.R. 97; Colet v. The Queen, [1981] 1 S.C.R. 2; Finnigan v. Sandiford and Clowser v. Chaplin, [1981] 2 All E.R. 267; Morris v. Beardmore, [1981] A.C. 446, distinguished; Goldman v. The Queen, [1980] I S.C.R. 976; R. v. LeSarge (1975), 26 C.C.C. (2d) 388;
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R. v. Welsh and lannuzzi (No. 6) (1977), 15 O.R. (2d) 1, 32 C.C.C. (2d) 363, 74 D.L.R. (3d) 748; Clifton v. Bury (1887), 4 T.L.R. 8; Pickering v. Rudd (1815), 4 Camp. 219; Semayne’s Case (1604), 5 Co. Rep. 91 a; Eccles v. Bourque, [1975] 2 S.C.R. 739; Reference re an Application for an Authorization (1983), 5 D.L.R. (4th) 601, made in response to Re Application for Authorization to Intercept Private Communications, [1982] 6 W.W.R. 533, 31 C.R. (3d) 31; Re Anti-Inflation Act, [1976] 2 S.C.R. 373; Lower Mainland Dairy Products Board v. Turners Dairy Ltd., [1941] S.C.R. 573; Home Oil Distributors, Ltd. v. Attorney-General of British Columbia, [1940] S.C.R. 444; Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg AG, [1975] 1 All E.R. 810; Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191 (1931); Reference re Regulation and Control of Radio Communication, [1931] S.C.R. 541; Composers, Authors and Publishers Association of Canada Ltd. v. CTV Television Network Ltd., [1966] Ex. C.R. 872; R. v. Steinberg, [1967] 1 O.R. 733; Olmstead v. United States, 277 U.S. 438 (1928); Berger v. New York, 388 U.S. 41 (1967); R. v. McQueen (1975), 25 C.C.C. 262, referred to.]
APPEALS from a judgment of the British Columbia Court of Appeal (1982), 69 C.C.C. (2d) 318, dismissing appellants’ appeals from their conviction by Fisher Co. Ct. J. (1979), 52 C.C.C. 113, for conspiring to import cocaine. Appeals dismissed, Dickson and Chouinard JJ. dissenting.
Howard Rubin and E. Ann Cameron, for the appellant Lyons.
John D. Banks, for the appellant Prevedoros. Derek A. Brindle, for the appellant McGuire.
Douglas J. A. Rutherford, Q.C., and S. David Frankel, for the respondent.
The reasons of Dickson and Chouinard JJ. were delivered by
DICKSON J. (dissenting)-The question is whether the trial judge erred in admitting into evidence certain private communications intercepted through the use of a room monitoring device installed surreptitiously by police officers in the
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home of the appellant, Kristine Lyons. The case raises, in part, the very important issues presented in the Reference Pursuant to Section 27(1) of the Judicature Act, Chapter J-1 of the Revised Statutes of Alberta, 1980, as amended, referred by Order in Council (O.C. 84/83) of the Lieutenant Governor in Council dated the 2nd day of February, A.D. 1983, to the Court of Appeal of Alberta, [1984] 2 S.R.C. 697 (hereinafter the Wiretap Reference). Judgment in the instant case was delayed pending hearing of argument upon, and determination of, the Wiretap Reference. As well, this Court has considered judgments delivered subsequently in two provincial appellate courts relevant to the Wiretap Reference and the present appeals. Judgment in the Wiretap Reference is being delivered concurrently herewith.
I The Facts
Police obtained a series of authorizations and renewals to intercept private communications of the appellants and other persons at, among other places, Kristine Lyons’ home, 1207 Nanton Avenue, Vancouver, British Columbia. The authorizations and renewals collectively covered the period between August 25, 1977 and February 13, 1978. All of the authorizations contained the following stipulation:
The type of private communications that may be intercepted are all telecommunications and oral communications.
None of the authorizations made reference to the manner of installing the listening device. Accordingly, none purported to expressly authorize trespass.
On November 2, 1977 four police officers, with-out consent, entered the residence at 1207 Nanton Avenue to install a room monitoring device. They were there about two hours. The transmitter operated continuously thereafter, and was capable of intercepting not only telephone communications, but also all conversations within the room. Not all conversations were recorded by the police. On December 19, 1977, three police officers, without consent, again entered 1207 Nanton Avenue, to
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change the batteries in the monitoring device. They stayed for about an hour.
The appellants and one David Fladgate were tried and convicted before His Honour Judge Fisher on a charge of conspiracy to import a narcotic (cocaine). At trial, evidence was introduced of ten conversations intercepted between November 6, 1977 and December 30, 1977 by the above-mentioned monitoring device.
lI The Court of Appeal Decision
The accused appealed their convictions to the British Columbia Court of Appeal on several grounds. The appeals of Lyons, Prevedoros and McGuire were dismissed. The Court was unanimous on all but one of the grounds. The point of disagreement concerned the issue of whether the trespass to install the room monitoring device rendered the intercepted private communications inadmissible in evidence.
Hinkson J.A., Macdonald J.A. concurring, wrote for the majority. He said the trespass did not vitiate the authorization. While any wrongful acts committed in the carrying out of the authorization could be the subject of criminal or civil proceedings, such wrongful acts did not affect the admissibility of the evidence of private communications.
Anderson J.A. dissented on this point. He concluded that authorizations to intercept private communications could not and did not authorize a trespass. He also held that the installation of the monitoring device was part of the interception. An unlawful trespass made the interception not "law-fully made" and this, by virtue of s. 178.16(1) of the Criminal Code, rendered the evidence of the private communications inadmissible. Anderson J.A. would have ordered a new trial. The case reaches this Court by virtue of Anderson J.A.’s dissent on a point of law (s. 618(1)(a) of the Criminal Code).
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III The Questions At Issue
The trial in this case arose prior to the proclamation of the Canadian Charter of Rights and Freedoms. Therefore, the case raises only questions of statutory interpretation. The reach of Part IV.1 of the Criminal Code, bearing the rubric "Invasion of Privacy", is at issue.
The majority of the Court of Appeal held that surreptitious entry to install the listening device did not vitiate the authorization to intercept communications at 1207 Nanton Avenue. Assuming this conclusion to be correct, it does nothing to resolve the question of the admissibility of the evidence garnered as a result of this electronic interception.
In considering the admissibility of evidence of private communications, the starting point is s. 178.16(1) of the Criminal Code:
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.]
For the reasons I have already given in the Wiretap Reference, it is my view that Parliament did not intend in Part IV.1 of the Criminal Code to authorize the police to trespass to install a listening device. Accordingly, an authorization does not implicitly carry with it a right of entry to private premises. And equally, a judge does not possess any authority to include a right of entry as a term of an authorization pursuant to s. 178.13(2).
No express authority to trespass to install the listening device was even purportedly granted in the authorization and renewals obtained by the police in this case. Since the authorizations do not
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implicitly permit the police to enter a place where they propose to intercept oral communications, it follows that the two trespasses involving 1207 Nanton Avenue were not lawful.
The question to be resolved is whether the interceptions of private communications, accomplished by means of the illegal entry to install the listening device, were "lawfully made" within the meaning of s. 178.16(1) and hence admissible in evidence.
IV Admissibility of the Intercepted Conversations
ln R. v. Wray, [1971] S.C.R. 272, the majority of this Court held that the criterion for determining the admissibility of evidence was its relevance, not the manner in which it was obtained. Thus, according to the majority, the fact that evidence had been unlawfully obtained did not affect admissibility unless the evidence was highly pre-judicial and of trifling weight. If the Wray rule were to apply, the conclusion that the trespass to install the listening device was unlawful would not affect the admissibility of the intercepted private communications.
It may be that s. 24(2) of the Canadian Charter of Rights and Freedoms will now modify the rule in Wray. I make no comment one way or the other on that possibility. It cannot assist the appellants in the present case. Quite aside from the Charter, however, it is clear that Parliament has explicitly set aside the Wray rule in the context of electronic surveillance by enacting s. 178.16(1)(a) which, it will be recalled, makes a private conversation that has been intercepted inadmissible unless the interception was lawfully made. 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.
This Court has previously recognized in R. v. Commisso, [1983] 2 S.C.R. 121, that Parliament has enacted in s. 178.16 an exclusionary rule which is an exception to the general rule that
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unlawfully obtained evidence is nevertheless admissible. The issue in that case, simply put, was whether an authorization to intercept private communications in respect of one offence was sufficient to render lawful interceptions in respect of a different offence. The majority, speaking through Lamer J., concluded it was; I wrote dissenting reasons for the minority concluding it was not.
Of importance for the resolution of this case is the unanimous agreement of the Court that only those private communications which have been lawfully obtained may be admitted in evidence. Lamer J. recognized the important concern for individual privacy that moved Parliament to enact s. 178.16, at p. 125:
In order to discourage unlawful invasions of the privacy of citizens, Parliament not only made it an indictable offence but also enacted an exclusionary rule which is an exception to the general rule that unlawfully obtained evidence is nevertheless admissible.
To much the same effect, I wrote, at p. 134:
The unique legislative treatment of electronic surveillance is a reflection of its nature. The modern technology is both powerful and unobtrusive. The technology permits massive invasion of the privacy with ease. It is also indiscriminate about the content of any communication intercepted. Parliament has determined that this potential constitutes a threat to individual freedom and the right to privacy. The evidentiary rule of exclusion fortifies the stipulation that interceptions of private communications are illegal unless specified conditions are met.
In R. v. Dass, [1979] 4 W.W.R. 97 (Man.C.A.), Huband J.A. took another view of this requirement of legality. Although holding that Part IV.1 did not authorize a trespass, he concluded that evidence obtained thereby was admissible. The essence of his reasoning appears at pp. 115-16:
The fact that there has been a trespass or some other civil or, indeed, criminal wrong in the planting of the device does not invalidate the authorization to intercept, and thus does not render the interception unlawful. The authorization granted by the court is an authorization to
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intercept private communications. How that authorization is carried out is not germane to the issue of the admissibility of the evidence flowing from the interception. If a trespass has been committed, then those who have committed the trespass will be answerable in some other criminal or civil forum.
... if a trespass is committed the evidence thus obtained will be admissible (subject to the usual rules governing admissibility), since it was obtained pursuant to an authorization and thus falls under the second of the four exceptions to the general prohibition against interceptions contained ins. 178.11(2).
The installation of the device is not part of the interception. If the installation is unlawful, in that there has been a contravention of civil or criminal law in the placement of the device, the lawfulness of the interception is not affected.
With respect, I cannot agree. In my view Huband J.A.’s conclusions, which were applied by the majority of the Court of Appeal in this case, conflict both with the express language of Part IV.l and with the statutory scheme thereby enacted.
As mentioned earlier, it may well be true, as Huband J.A. asserts, that a trespass in planting the listening device does not invalidate the authorization to intercept. At most, however, this would allow the person making the interception to avail himself of s. 178.11(2) in order to avoid criminal liability for what would otherwise be an indictable offence under s. 178.11(1). With respect, this does not however lead to the conclusion that the interception was therefore rendered lawful. I see no reason in the language or in the purpose of Part 1V.I to read the provision in s. 178.16(1)(a) that an interception must be "lawfully made" as refer-ring only to lawfulness in obtaining the authorization. On the contrary, in view of the fact that such evidence is prima facie inadmissible and that the subsection is to be found in the context of a meticulously articulated set of provisions permitting only a limited breach of the individual’s right of privacy, these words should be given their full and literal meaning.
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It seems manifest to me that Parliament intended any breach of the right of privacy, protected by Part IV.1, be lawful in the widest sense. In my view, absent a valid consent, the surreptitious physical invasion of a home when undertaken by police for the purposes of installing, maintaining, repairing, or removing room monitoring devices renders any private communication that has been intercepted not "lawfully made", within the meaning of s. 178.16(1)(a) of the Criminal Code.
In my opinion, it is not possible to separate the installation of the listening device from the process of listening to and recording conversations, so as to include only the latter in the process of interception. This is an artificial and unrealistic distinction. That interception must go beyond mere listening and recording not only conforms with common sense, it is a necessary consequence of the wording of s. 178.16(l). The section demands that the interception be lawfully made. It is the whole process of interception which is referred to and that must therefore be lawful. Installation is indispensible to interception. It must on any reasonable reading be part of the making of an interception. An interception accomplished by means of an unlawful entry cannot have been "lawfully made".
The New Brunswick Court of Appeal has recently reached the same conclusion on the admissibility of any private communication obtained as a result of an illegal entry: R. v. Hardy (1984), 56 N.B.R. (2d) 417, 146 A.P.R. 417. In Hardy, the authorization given by the judge expressly permitted the police to enter the Hardy residence "where reasonably necessary" for the interception of oral communications. The police had surreptitiously entered and planted a room-monitoring device which allowed them to intercept the private communications in issue.
Stratton J.A. (Hughes C.J. concurring), decided that Part IV.1 of the Code did not give any express authority to a judge to authorize a trespass onto private property for the purpose of installing listening devices, nor could such authority be
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implied. He concluded the illegal entry of the law enforcement officers into the Hardy residence rendered the intercepted private communications inadmissible.
In reaching-this conclusion, he made the following comment, upon the case at bar and the Dass case, with which I am in respectful agreement:
As I read these decisions, they seem to turn on a narrow interpretation of the word "interception" so that the conduct of the police in installing monitoring devices is not part of the interception. I have difficulty in agreeing with the interpretation that "interception" does not include the method of its execution. Rather, I would respectfully adopt the dissenting view of Anderson, J.A. in the Lyons case that the "interception" of a private communication includes not merely the listening to or recording of a private communication but also the means used to acquire the private communication.
Angers J.A., in separate reasons, decided that it lay within the power of a judge acting under s. 178.13 to authorize entry, however, the particular wording of the authorization was not sufficiently clear to satisfy him that the entry the police had actually made was authorized by the order grant-ed. He agreed that the interception was not lawfully made and the evidence was inadmissible.
In R. v. Papalia (1984), 47 O.R. (2d) 289, the Ontario Court of Appeal did not need to decide the question of whether an unlawful interception renders the private communication so obtained inadmissible. The unanimous Court held that an authorization, by necessary implication, carries with it the power to trespass to install a listening device and therefore the interceptions in issue were lawfully made. It is notable, however, that Brooke J.A. agreed with the conclusion of Anderson J.A. in the instant case, that the installation of the listening device is part of the interception process.
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V Conclusion
I conclude that, as a result of the two covert entries, the interceptions of conversations at 1207 Nanton Avenue were not "lawfully made" within the meaning of s. 178.16(1)(a) and ought there-fore not to have been admitted as evidence. It follows that the appellants were convicted on the basis of inadmissible evidence and I would accordingly allow the appeals and direct new trials for each of the appellants.
The judgment of Beetz, Estey, McIntyre and Lamer JJ. was delivered by
ESTEY J.-The appellants were convicted on a charge of conspiring to import cocaine into Canada contrary to s. 423(1)(d) of the Criminal Code of Canada. The issue raised in this appeal turns on the admission into evidence of interceptions made pursuant to an authorization granted under s. 178.13 of the Criminal Code. The Canadian Charter of Rights and Freedoms need not be addressed as the trial in this case arose prior to its proclamation. The interception evidence was obtained pursuant to an authorization issued by Bouck J. on August 25, 1977 and pursuant to a subsequent authorization issued by Toy J. on December 16, 1977. The appeal proceeded in the Court of Appeal and in this Court on the basis of an agreed statement of facts in which the following salient facts are set forth:
On November 2, 1977, police officers entered the residence of the Appellant LYONS (which was also, on occasion, that of the Appellant PREVEDOROS), at 1207 Nanton Avenue, in the City of Vancouver, for the purpose of installing a device which would permit them to monitor and record oral communications taking place within the premises.
On December 19, 1977, police officers entered 1207 Nanton Avenue for the purpose of replacing the batteries powering the transmitter and also to look for a place to install another such device.
The police had not obtained permission of anyone connected with 1207 Nanton Avenue to enter that residence
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on November 2 and December 19, 1977. They relied solely on the Authorizations and Renewals which they had obtained.
The regularity in substance and in form of the authorizing orders is not under challenge. The sole issue arising is whether or not the entry into the premises of the accused Lyons for the purpose of installing a radio transmitter and subsequently to renew its batteries rendered inadmissible evidence of the interceptions subsequently made pursuant to these authorizations.
The authorization of August 25, after setting out the offences in respect of which private communications may be intercepted, provided:
b) The type of private communications that may be intercepted are all telecommunications and oral communications.
c) The identities of the known persons whose private communications may be intercepted are,
(i) Kristine LYONS 1207 Nanton Avenue Vancouver, British Columbia
The order then continued:
d) The private communications of persons whose identities are not known as of the date hereof which may be intercepted are,
those persons who resort to or use the premises described in sub-paragraph (c) hereof, or
those persons who are in communication with the persons described in sub-paragraph (c) hereof apparently with respect to an offence mentioned in paragraph (a) hereof
which private communications may be intercepted at any of the premises hereinbefore described and any place or premises in the Province of British Columbia resorted to or used by the persons described in sub-paragraph (c) hereof and in respect of any place of which a general description cannot be given the manner of interception that may be used is interception by means of any electromagnetic, acoustic, mechanical or other device. The private communications of such per-sons as described whose identities are unknown at the date hereof may be intercepted during the period for which this authorization is valid notwithstanding that during such period their identities may become known.
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It will be noted that in subparagraph (d) the order provided that " …. the manner of interception that may be used is interception by means of any electromagnetic, acoustic, mechanical or other device". The order of Toy J. also authorized the interception of the private communications of the appellant Lyons as well as the appellants Prevedoros and McGuire. This order differs somewhat from the first authorization in matters not consequential to these proceedings.
The trial judge admitted ten interceptions made with respect to the appellants and others from November 6, 1977 to December 30, 1977.
The majority of the Court of Appeal [(1982), 69 C.C.C. (2d) 318] speaking through Hinkson J.A., after reviewing the judgment of this Court in Goldman v. The Queen, [1980] 1 S.C.R. 976, concluded at p. 328 that " …. even where the police have committed a trespass to install a room-monitoring device, …. the evidence is admissible". The majority also concluded at p. 329:
When in the course of doing so the police commit acts which amount to wrongful acts, such acts may give rise to civil or criminal proceedings against them. But such acts do not vitiate the court order authorizing the intercept. Therefore the evidence is admissible pursuant to s. 178.16(1) of the Code.
Anderson J.A. dissented for the reason that an interception pursuant to an authorization is only admissible as evidence if it is "lawfully made" in the words of s. 178.16(1)(a), infra, of the Criminal Code and that such is not the case where the interception results from trespass.
In my opinion, an "interception" is only "lawfully made" if it is made in accordance with the authorization granted. The "interception" of a "private communication" is not merely "listening to or recording a private communication" but includes the means used to "acquire" the "private communication"... .
Furthermore, Anderson J.A. was of the view that the authorizing court had no power to authorize
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the police to act in an unlawful manner and consequently, whether or not the order expressly authorized or implicitly permitted trespass, the result is the same: the evidence obtained by the interception is inadmissible. In part this conclusion was reached by interpreting the words "manner of interception" as they are found in s. 178.13(2)(c) to mean "a lawful manner of interception". The position in dissent is succinctly stated, at p. 348:
In summary, I would hold as follows:
(I) Private communications are not admissible unless "the interceptions were lawfully made", namely, in accordance with the authorizations granted.
(2) The "interception" process includes the mode of execution or procedure set out in the authorization including the installation and maintenance of monitoring devices.
(3) A police officer does not act in accordance with an authorization when he carries out the instructions of the authorizing judge in an unlawful manner, namely, by unlawfully trespassing to install and maintain the monitoring devices.
The determination of the issue raised in this appeal depends upon the construction placed upon Part IV.I, particularly ss. 178.l, 178.11, 178.12, 178.13 and 178.16 of the Criminal Code. These provisions are as follows:
178.1 In this Part,
"authorization" means an authorization to intercept a private communication given under section 178.13 or subsection 178.15(2);
"intercept" includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof;
"private communication" means any oral communication or any telecommunication made under circumstances in which it is reasonable for the originator thereof to expect that it will not be intercepted by any person other than the person intended by the originator thereof to receive it;
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178.11 (1) Every one who, by means of an electromagnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for five years.
(2) Subsection (1) does not apply to
(a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it;
(b) a person who intercepts a private communication in accordance with an authorization or any person who in good faith aids in any way a person whom he has reasonable and probable grounds to believe is acting with any such authorization;
(c) a person engaged in providing a telephone, telegraph or other communication service to the public who intercepts a private communication,
(i) if such interception is necessary for the purpose of providing such service,
(ii) in the course of service observing or random monitoring necessary for the purpose of mechanical or service quality control checks, or
(iii) if such interception is necessary to protect the person’s rights or property directly related to providing such service; or
(d) an officer or servant of Her Majesty in right of Canada in respect of a private communication intercepted by him in the course of random monitoring that is necessarily incidental to radio frequency spectrum management in Canada.
178.12 (1) An application for an authorization shall be made ex parte and in writing to a judge of a superior court of criminal jurisdiction, or a judge as defined in section 482 and shall be signed by the Attorney General of the province in which the application is made or the Solicitor General of Canada or an agent ….
(b) the Attorney General of a province personally, in respect of any other offence in that province,
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and shall be accompanied by an affidavit which may be sworn on the information and belief of a peace officer or public officer deposing to the following matters, namely:
c) the facts relied upon to justify the belief that an authorization should be given together with particulars of the offence;
d) the type of private communication proposed to be intercepted;
e) the names, addresses and occupations, if known, of all persons, the interception of whose private communications there are reasonable and probable grounds to believe may assist the investigation of the offence, a general description of the nature and location of the place, if known, at which private communications are proposed to be intercepted and a general description of the manner of interception proposed to be used;
178.13… .
(2) An authorization shall
(a) state the offence in respect of which private communications may be intercepted;
(b) state the type of private communication that may be intercepted;
(c)state the identity of the persons, if known, whose private communications are to be intercepted, generally describe the place at which private communications may be intercepted, if a general description of that place can be given, and generally describe the manner of interception that may be used;
(d) contain such terms and conditions as the judge considers advisable in the public interest; and
(e) be valid for the period, not exceeding sixty days, set forth therein.
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;
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but evidence obtained directly or indirectly as a result of information acquired by interception of a private communication is not inadmissible by reason only that the private communication is itself inadmissible as evidence.
(2) Notwithstanding subsection (1), the judge or magistrate presiding at any proceedings may refuse to admit evidence obtained directly or indirectly as a result of information acquired by interception of a private communication that is itself inadmissible as evidence where he is of the opinion that the admission thereof would bring the administration of justice into disrepute.
(3) Where the judge or magistrate presiding at any proceedings is of the opinion that a private communication that, by virtue of subsection (1), is inadmissible as evidence in the proceedings
(a) is relevant to a matter at issue in the proceedings, and
(b) is inadmissible as evidence therein by reason only of a defect of form or an irregularity in procedure, not being a substantive defect or irregularity, in the application for or the giving of the authorization under which such private communication was intercepted,
he may, notwithstanding subsection (1), admit such private communication as evidence in the proceedings.
Part IV.1 was introduced into the Criminal Code by 1973-74 (Can.), c. 50. There were substantial amendments enacted in 1976-77 (Can.), c. 53. That which concerns this appeal is the amendment to s. 178.13(2), supra, which prior to 1977 read:
178.13.. .
(2) An authorization shall
…
(c) state the identity of the persons, if known, whose private communications are to be intercepted and where the identity of such persons is not known, generally describe the place at which private communications may be intercepted or, if a general description of that place cannot be given, generally describe the manner of interception that may be used;
It will be seen that prior to the amendment, it was only necessary to describe the place where the
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interception was to be undertaken where the identity of the persons whose private communications were to be intercepted was unknown. More importantly, it was only necessary to generally describe the manner of interception when the place of interception could not be given. Under the present form of the subsection, all this information must be given and the obligation to advise as to the manner of interception is not conditional upon any other knowledge or information in the possession of the person seeking the authorization. This would appear to reveal a much more specific legislative intent with reference to the breadth of authority assigned by Parliament to the court in granting interception authorizations, and a commensurate entitlement in and a burden on the court to know the scope of investigation to be authorized.
The plan of Part IV.1, the "Invasion of Privacy" provisions of the Criminal Code, is directed both to protecting, and to invading, the privacy of the individual. The very presence of Part IV.1 in the Code is a recognition of these opposing needs in relation to criminal law which, of course, falls exclusively in the domain of Parliament under s. 91(27) of the Constitution Act. By the 1973-74 enactment of Part IV.l, Parliament extended to the Criminal Code some provisions with reference to interception of communications which thereto-fore were found in part in the Radio Act, R.S.C. 1970, c. R-1, and these coupled with extensive provisions which take a much broader approach to the matter of privacy form a mini-Code, Part IV.1, under the heading "Invasion of Privacy".
Much has been written about the proper construction and application of Part IV.l of the Code. lt is unnecessary to review the ground covered by this Court in Goldman, supra, and by the Ontario Court of Appeal in R. v. LeSarge (1975), 26 C.C.C. (2d) 388, and R. v. Welsh and lannuzzi (No. 6) (1977), 15 O.R. (2d) l, 32 C.C.C. (2d) 363, 74 D.L.R. (3d) 748. The very issue facing the Court in this appeal arose in the Manitoba Court of Appeal in R. v. Dass, [1979] 4 W.W.R. 97 where that Court concluded (per Huband J.A., at p. 115):
[Page 653]
The fact that there has been a trespass or some other civil or, indeed, criminal wrong in the planting of the device does not invalidate the authorization to intercept, and thus does not render the interception unlawful. The authorization granted by the court is an authorization to intercept private communications. How that authorization is carried out is not germane to the issue of the admissibility of the evidence flowing from the interception. If a trespass has been committed, then those who have committed the trespass will be answerable in some other criminal or civil forum.
With respect, I do not accept the reasoning which leads to this conclusion. The process of interception is a single undertaking carried out under the authorization orders of the court and cannot be segmented into legally consequential and legally inconsequential steps. The interception must be carried out in conformity with the Code and the orders issued thereunder in order to qualify the material received on interception for admission as evidence. The evidence in issue here may therefore be admissible under the provisions of s. 178.16 if the Court is empowered, expressly or by necessary implication, to authorize the placing of the transmitting device by entry into these private premises and if the authorization here expressly or by necessary implication grants authority so to do. Neither Part IV.1 nor the orders herein issued expressly authorize entry by the officers into the premises mentioned in the order for the installation of the radio device. The question therefore reduces itself to this: can the terms of Part IV.1 and the authorizations be properly construed as permitting the installation of this radio device in the manner outlined above? Presuming the implied authority can properly be found in the sections of the Code and the court orders, the evidence would be admissible.
For convenience I repeat the definition of "private communication" in s. 178.1 of the Code:
"private communication" means any oral communication or any telecommunication made under circumstances in which it is reasonable for the originator thereof to expect that it will not be intercepted by any
[Page 654]
person other than the person intended by the originator thereof to receive it.
That definition includes the word "telecommunication" which in turn is defined in the Radio Act, supra, s. 2, the Interpretation Act, R.S.C. 1970, c. I-23, s. 28, the Canadian Radio-television and Telecommunications Commission Act, 1974-75-76 (Can.), c. 49, s. 2 as:
"telecommunication" means any transmission, emission or reception of signs, signals, writing, images or sounds or intelligence of any nature by wire, radio, visual or other electromagnetic system.
In s. 287(2) of the Criminal Code the words "by wire" are omitted. The offence of interception of a private communication refers to interception "by means of an electromagnetic, acoustic, mechanical or other device". The expression "electromagnetic, acoustic, mechanical or other device" was in turn defined in s. 178.1 as:
"electromagnetic, acoustic, mechanical or other device" means any device or apparatus that is used or is capable of being used to intercept a private communication....
The definition of "telecommunication" refers to the " . . . reception of . . . sounds . . . by . . . radio, visual or other electromagnetic system".
It was not argued that the transmitter planted by the police in the premises of the appellant Lyons was not "an electromagnetic ... device". It was also not challenged that the operation of the device produced a transcript of a "private communication". It is also either agreed or not contested that the authorizations complied with paras. (a) and (b) of s. 178.13(2); and that each order authorized the "interception by means of any electromagnetic, acoustic, mechanical or other device".
This then brings one to s. 178.16 to determine whether or not the intercepted private communication is admissible as evidence "against the originator of the communication". Admissibility only results if:
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(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.
We are concerned only with para. (a) and particularly with the words "lawfully made". We are not concerned with subs. (3) of this section because it was not argued nor indeed could it have been argued in these circumstances that an unauthorized entry, if that is the correct description in law of the action taken here, is "an irregularity in procedure". The second issue therefore reduces itself to an interpretation and application in the circumstances of this appeal of the words "lawfully made". In reality this is only an independent issue if the words mean something other than `made in accordance with Part IV.1 of the Code’.
Before examining these Code provisions in detail a word should be said about trespass, a subject prominent in the submissions in this Court and in the judgments below. Trespass, in its broad scope, is but one of the considerations which must be taken as having been within parliamentary contemplation in the adoption of these extensive measures. Trespass in its most ancient form, more properly trespass vi et armis (by force and arms), involved direct interference with the person. Eventually other forms of trespass, in particular trespass quare clausum fregit (involving the physical act of breaking the "close" around the individual’s land or premises), and trespass de bonis asportatis (relating to personal property) were developed to cover certain particular wrongs. The action for trespass gradually expanded to embrace wrongs suffered as the result of the exercise of indirect force. The ancient form of trespass also gave rise to the "action on the case" and from this the concept of intellectual trespass developed, thus further extending the plaintiff’s rights with respect to indirect or non-physical wrongs. From the fertile ground of trespass likewise sprang the action in assumpsit from which in turn came the present action in contract. In the simple Anglo-Saxon community the breach of a recognized right was a
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trespass, including the right to rely on another’s promise.
Eventually, trespass was narrowed down in the common law to the immediate damage caused by the act complained of, whereas consequential injury was identified as an action upon the case: Fifoot, History and Sources of the Common Law: Tort and Contract (1949), at p. 185; Fleming, The Law of Torts (6th ed. 1983), at p. 15. In the circumstances arising in this case, one must be concerned with the consequences, if any, of trespass above the surface of the land, that is in open space. Whether mere entry into air space amounts to trespass has been a matter of some debate in the law. An earlier general rule stating that an action did arise under the maxim that breach of the close includes its vertical extension has been referred to as a "fanciful phrase" of "dubious ancestry": Fleming, The Law of Torts, supra, at p. 42. It has, for example, been deter-mined that firing objects across property in air space was not actionable unless as a nuisance: Clifton v. Bury (1887), 4 T.L.R. 8; whereas if the object and, perhaps, in the alternative, the force, contacted a surface, the action was in trespass: Pickering v. Rudd (1815), 4 Camp. 219, at p. 220, per Lord Ellenborough. In more modern writings, the action of trespass has been assigned to a lesser function in the field of tort giving rise to a remedy only for material damage sustained by an occupier as the direct result "of another’s activity involving an entry, whether personal or by means of animate or inanimate objects": Fleming, The Law of Torts, supra, at p. 36. Trespass is largely the subject of civil law rather than criminal law (see Glanville Williams, Textbook of Criminal Law (1978), p. 894).
We are not here directly concerned, be it remembered, with determining whether the con-duct of those who invoked the authorization order and intercepted these personal communications was either tortious or criminal. We are only concerned
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with the admissibility of the information thereby harvested.
lt is generally an acceptable starting point in examining legislation involving the invasion of individual rights to restate Semayne’s Case (1604), 5 Co. Rep. 91 a. The invasion here is of privacy and this concerns both the personal aspects and the property aspects of privacy. The inviolable nature of the private dwelling is a basic part of our free society. This concept has long been a bulwark against tyranny of the state be it organized as an absolute monarchy or as a democratic state under a constitutional monarch. Indeed for three hundred years the concept that a person’s home is his castle has been the defence of the citizen in an endless variety of challenges brought against him in the name of the state. Semayne has been the shrine of his or her privacy. The concept recognizes an internal security but also an external dependence. The home is not a castle in isolation; it is a castle in a community and draws its support and security of existence from the community. The law has long recognized many compromises and outright intrusions on the literal sense of this concept: for example, the right of the community to search on proper authorization; the right of pursuit; the right of eminent domain; the right of the community in applying zoning restrictions and safety standards; the compulsory participation in community established health facilities including sewer and water systems; and many more. Most of these intrusions carry inspection rights of varying modes and degrees. As Dickson J. (as he then was) put it in Eccles v. Bourque, [1975] 2 S.C.R. 739, at p. 743:
there are occasions when the interest of a private individual in the security of his house must yield to the public interest, when the public at large has an interest in the process to be executed.
The community interest in crime detection and suppression also inevitably entails intrusion on the castle concept. Part IV.1 is a recognition of the technical realities of the age of communications as they affect crime detection and prevention in particular,
[Page 658]
and the right to privacy in general. It represents a balance selected by Parliament of these conflicting concepts and interests. Intrusion into privacy is an obvious and inevitable concomitant of an authorized crime detection procedure. Explicitness is a requirement before legislation may properly be found to be intrusive of these basic rights. However, the need to express the obvious is not present in the canons of statutory interpretation.
There are four general interception procedures available under the definition of authorized devices under Part lV.1 which are widely discussed in the literature in this country and in the United States concerning the subject of interception of personal communications. These four procedures are:
(a) telephone wiretapping;
(b) radio eavesdropping;
(c) acoustic eavesdropping, active and passive; and,
(d) microwave and laser beam eavesdropping.
Telephone wiretapping in some forms requires personal entry by the interceptor into the designated premises for the purpose of installing equipment. Radio eavesdropping, involving the use of transmitters, necessarily involves personal entry into the designated premises for the purpose of their installation in the vicinity of the anticipated personal communications. Active acoustic devices and microwave and laser beam eavesdropping necessarily entail the direction into and onto the designated premises of energy in the form of electromagnetic waves, or acoustical waves in the case of acoustic devices. Thus, all forms of eavesdropping (other than passive acoustic eavesdropping by means of parabolic and other like microphones) entail either the personal entry into the premises by the interceptor or his collaborators for the purpose of installing equipment; or the invasion of the premises in question by directing at those premises energy in the form of electromagnetic waves. It should be added in connection with acoustic interception that acoustic eavesdropping,
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unassisted by long-range reception devices, also entails personal entry into premises or onto the land immediately adjoining for the purpose of overhearing conversations. That is the procedure of interception of personal communications in its oldest and most basic form.
Where the intercept is done by means of intercepting telephone wires leading to and from the premises, no personal entry by the interceptor is necessarily made into the named premises. For an interception to be made by means of a radio device, the device, a small transmitter, must be placed inside the premises where it is anticipated that the private communication, that is the conversation, will take place. A hybrid intervention occurs where personal entry is made into the premises for the purpose of inserting a device into the telephone instrument on the premises which enables the interceptor, by thereafter directing electrical energy into the building over the telephone wires as and when desired, to "electrically remove" the telephone from its hook and thereby convert the telephone into a room listening device similar to a radio bug. Thereafter, the device can be turned on and off repeatedly and indefinitely without any further personal entry by the interceptor. Where the private communication is picked up and recorded by acoustical means, that is by long-range directional acoustical devices, no personal entry is necessarily required depending on the situs of the conversation being intercepted. New modes of physical entry occur where the private communication is intercepted by means of devices such as "coherent lasers" employing electromagnetic forces beamed onto and into buildings which record and translate vibrations on window panes or walls so as to intercept "private communications" taking place inside the building. No personal entry by the interceptor is required. (See Studies for the National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance, Washington: 1976 ("NWC Commission Studies"), at p. 182, and Encyclopedia Britannica, Micropaedia, Ready Reference and Index, vol. III, at p. 841). Technically this is an entry into or a trespass against the
[Page 660]
premises in question, particularly if the sensor is physically attached to the outer wall of the premises or a common wall between the premises and another property. It would be a strange result indeed if a court were required to construe the words of the section in such a way as to render evidence inadmissible if obtained and recorded by radio, or if obtained by the recording of vibrations in the enclosure of the premises by energy directed from outside the lands and premises, but not if withdrawn from the building by an invasive use of the telephone wires leading into the building or by detection of vibrations in a common wall. Further-more, s. 178.11 throughout refers to all manner of devices, acoustic, mechanical, electromagnetic "and others". By the clearest possible inference the authorization may refer to and authorize the use of one or more of these devices.
Radio as a method of interception entails, in its most common form, the installation of a transmitter at the site where the private communication to be intercepted is to take place. By the definitions included in and related to Part IV.1, radio is included in the authorized interception techniques so that its use is embraced in the provisions which are necessarily broad and in the terminology there employed which is designedly embracive of these diverse techniques. As will be seen, a detailed analysis of the wording of the section happily produces a result consonant with the general purport of Part IV.1.
Wiretapping, the use of telephone wires and equipment by which the telephone company provides telephone service to its subscribers, is perhaps the most common interception procedure or device. Indeed, the expression "wiretapping" appears to be used generically in the present day community to cover all manner of interception of private communications. Two methods of eaves-dropping via telephone are described at p. 158 of the NWC Commission Studies:
[Page 661]
Telephone audio eavesdropping can be accomplished by two methods that involve connecting various electronic devices to this system [i.e. the telephone system]. The first and most widely publicized method uses wiretap paraphernalia which intercepts conversations directly from the telephone wires and requires no entry into the target premises. The second method is that which uses a portion of the telephone system for room eavesdropping and usually requires physical entry into the premises.
Wiretapping is only feasible where telephone service is being provided to the place where the interception is to be made. No mention of a telephone number is made in the authorization of August 25, 1977. Telephone numbers are mentioned in the second authorization. A private communication between persons named in the authorization and other persons includes by definition an oral exchange or conversation which occurs by means of the telephone situated on the premises identified in the authorization and the telephone at the other end of the conversation. The authorized interceptor taps into the pair of telephone wires coming out of the premises by attaching a receiver somewhere on those wires outside the premises at a point where the interceptor can listen to and, if desired, make a recording of the conversation between a person on the designated premises and a person situated somewhere else and using the telephone service connected to those premises. The telephone company, of course, is not authorized by the subscriber at either end of the call to make use of or to permit use of the telephone wires and equipment for this purpose. If the interceptor taps the wire at a point outside the boundaries of the property identified in the authorization as the place where the interception is to be made, then no trespass in the sense of personal entry by the interceptor is committed against the property under surveillance. The result, however, is that the voice of the person who participated in the private communication inside the wiretapped premises has been overheard and recorded without his knowledge or authority. The interceptor has by telephone entered the privacy of the dwelling, or other place where the person is situated, and recorded his or her private telephone conversation. The privacy of the parties to the private communication
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has been invaded. If the interceptor tapped the lines of the phone company without that company’s consent, other violations of rights may have occurred. As between the interceptor and the person whose private communication has been intercepted, what has in reality occurred? The interceptor has, through the agency of the telephone equipment, caused a current, an electron flow, to be passed through equipment in use by the person under investigation in a telephone subscriber’s dwelling so as to allow the acoustical waves produced by the person using the phone to be impressed in analogue form on the current in the phone wires. The current bearing in electrical analogue the acoustic waves produced by the voice of the interceptee leaves the premises and travels to the point where the interceptor’s equipment retrieves the signal and reconstitutes the voice of the interceptee and that of the person at the other end of the telephone conversation, in acoustic form. The interceptor can at the same time record the electrical analogue for acoustical reproduction of the private communication at a later time. A variation of this procedure enables the interceptor to send a current into the premises by means of the telephone wires and thereby switch on the micro-phone in the telephone unknown to the occupants so as to enable the interception of any oral communications which occur in the vicinity of the electronically activated telephone. By directing an electrical current into the premises, the interceptor can, in effect, convert the telephone into a `bug’ for eavesdropping in the room. For a more detailed description of the physical events occurring during this process, see NWC Commission Studies, supra, at p. 160; and David Watt, Law of Electronic Surveillance in Canada (1979), at pp. 181-84. No one suggested in this Court, none of the courts below has suggested, and no case has been drawn to the attention of this Court, where it has been decided that this process would not be within the terms of Part IV.1 or that this most common of all interception procedure could not be authorized under Part IV.1. Yet there has been the clearest trespass against the premises, in the civil law sense of that term, by the deliberate direction of an electrical current into those premises in order to transport out of the premises the private communication
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of the person speaking inside the premises. All of this was unauthorized by the telephone company, by the subscriber to the telephone service, or by the person whose private communication was, by this device, intercepted. The electrical current acts as a boomerang thrown across the subscriber’s property and retrieved by the interceptor after it has picked up the personal communications of any inhabitants. The electronic equivalent employing physical force in the form of an electric current nonetheless amounts to an ancient trespass quare clausum fregit. Parliament has clearly granted authority for issuance of an authorization to intercept, in this manner, private communications at designated premises. Nothing in the Code requires the consent of the telephone company whose system is thus invaded by the interceptor.
The same result can be achieved by the use of acoustical, light or radio waves originated and received by the interceptor off the lands and premises described in the surveillance authorization. See a compendium of such techniques gathered in the NWC Commission Studies, supra, at p. 152, and pp. 168-83. Again the result in law is simple civil trespass on the property named in the authorization unless the legislation has authorized such procedures. Indeed, high intensity microwaves so employed must amount to trespass to the person, entailing, as they do, physical discomfort and injury. See NWC Commission Studies, supra, at p. 177. It follows, at least as regards wiretapping and interception by energy directed into the premises, that no trespass occurs, and even if it does, it is authorized by Part IV.1 and no cause of action arises.
Part IV.l 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
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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. This is broad legislation embracing in these extensive provisions the use of a wide range of radio, telephone, optical and acoustical devices for listening to and recording private communications as broadly defined. It is not "wiretapping" legislation, nor eavesdropping legislation, nor radio regulation. It is the regulation of all these things and "any other device" that may be used to intercept intelligence reasonably expected by the originator not to be intercepted by anyone other than the intended recipient. The scheme of regulation includes the judicial authorization to intercept issued in response to a request for permission to intercept personal communications by any device contemplated by the Code, supported by the requisite information as specified in the regulation. Part IV.1 has authorized the use of all such procedures. They involve the invasion of property by directed energy for the purpose of extracting private communications occurring therein or thereon, yet no express authorization of the essential "entry" on to the premises under surveillance is to be found in the provisions. Parliament should not be taken to have authorized the use of procedures and equipment without, at the same time, supplying the public officials undertaking these duties with the appropriate means and authority to carry them out. This, in my view, Parliament has done by authorizing the employment of apparatus, some of which necessarily entails such forms of "entry".
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Part IV.1 did not issue from Parliament in an era of primitive communications. It must be read and applied with an awareness of the community it seeks to regulate. It was not the age of smoke signals or even simple telephony into which these extensive regulations were launched. Neither are the forces of criminal investigation, which are brought under the umbrella of these regulations, faced with the simpler task of bygone days. Rather they are contending with techniques employed by the criminal elements in a community equipped with all the modern paraphernalia of electronic communications. The reasonable needs of the community for adequate crime detection services utilizing modern technology, as well as the reasonable need of the community for protection from these new techniques, are considerations which must have been in the forefront of the parliamentary mind. Part IV.1 seeks to embrace these twin realities produced by modern interception techniques. At the same time, Parliament must be assumed to have taken into account the size and complexity of present-day criminal operations, particularly in the field of drug trafficking. In my view, Parliament has clearly revealed in Part IV.1 an intent to embrace all these conditions in a comprehensive network of regulations, and in my reading of these provisions, it has succeeded in so doing.
Having established the offence of unauthorized interception of personal communications, Part IV.1 proceeds to lay out the exceptions of consent and authorization. The procedure prescribed for obtaining an authorization is detailed in s. 178.12. The application must be made to a judge of a superior court of criminal jurisdiction (other forums not here relevant are omitted) by the Attorney General of a province or by the Solicitor General of Canada or their respective agent, and shall be supported by an affidavit of a peace officer or public officer setting forth the factual basis for the belief that an authorization should be given together with particulars of the offence under investigation, and "the type of private communication …. to be intercepted". The affidavit is required to set out as well:
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(a) the person the interception of whose private communication is believed on reasonable grounds may assist the investigation of the offence in question;
(b) a general description of the nature and location of the place (if known) "at which private communications are proposed to be intercepted"; and,
(c) "a general description of the manner of interception proposed to be used".
Section 178.13 provides the authority to the judge to issue the authorization. There are two threshold considerations which must be met:
(a) that the authorization requested would be in the best interests of the administration of justice; and,
(b) that other investigative procedures have been tried and have failed, or would be unlikely to succeed, or the urgency is such that it would be impractical to carry out the proposed investigation using only other investigative procedures.
The authorization then must include;
(a) the identity of the person whose private communications are to be intercepted if that be known;
(b) a general description of the place at which the private communications may be intercepted if that can be done; and
(c) a general description of the manner of interception that may be used.
Finally, and in my view most importantly, s. 178.13(2)(d) directs that the authorization shall "contain such terms and conditions as the judge considers advisable in the public interest". The foregoing are the terms of Part IV.1 which deal with the application for authorization and the contents of the authorizing order itself.
Thus we come to the interception procedure employed in these proceedings. The interceptor, acting under the authorization, deposited on the premises named in the order as the place where the interception was to be made, a battery-powered radio transmitter. This device performed the same
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function as the telephone in the simple wiretap example above. The radio transmitter produced the same electrical analogue, albeit on a radio frequency, as did the telephone microphone, and again the interceptor, by means of a radio receiver located off the premises, converted the radio frequency analogue back to an acoustical representation of the private communication in the same way as the interceptor did in the wiretap procedure described above. In the first instance, the entry was committed by sending into the premises, without any revealed authority from the owner of the premises or the owner of the telephone system, an electrical current which transported the private communication out of the premises. In another mode of interception mentioned earlier, the interceptor directed light or radio energy into and onto the premises and made the interception of private communications by extracting such communications from the reflected energy returning to the interceptor. The person who placed the radio transmitter in the premises entered and may have thereby trespassed against the lands and premises of the owner or the person entitled to possession. All these forms of transgression against the premises named in the authorization are inherently and obviously means contemplated in Part IV.1 for invoking the authority granted by Parliament for the interception of private communications if judicially authorized.
It is to be noted that when the owner or person entitled to possession of the premises in question is not a person named in the authorization as being under surveillance and is not the person whose private communication is intercepted, other important considerations may arise but with which neither s. 178.16 nor this appeal are concerned. If none of the persons named in the authorization has an interest in the property where the interception is made, then there is no right in them to complain of the trespass to real property as such a right is limited to the owner or person in possession of the properties subjected to the trespass. There is no indication on the record here whether the authorization names the owner or person in possession as
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one of the persons whose private communications may be intercepted.
In my view, the provisions of Part IVA when read as a whole clearly contemplate, require and authorize, by necessary implication and unavoidable inference, the placing of a radio device on the premises at which the intercept is to be made, where the use of radio equipment is authorized for the interception of a private communication. I therefore would answer the initial question, which arises at this point in the analysis of Part IV. 1, by concluding that Parliament has thus empowered a court to authorize the use of a radio device, such as was used here, for the purpose of intercepting a designated private communication. Since the device could not otherwise function as an interception "device", Parliament has cast the section broadly so as to empower the court in its discretion to authorize the placing of the "device" inside the premises designated in the authorization whether or not what would otherwise be a trespass to someone’s lands and premises may occur and whether or not the owner of such lands and premises is the person whose private communication is to be intercepted. Once Parliament empowers a court to authorize such action, and the court does so, there is no trespass in law.
There are, of course, differences in magnitude in the potential seriousness of the several interception procedures which Part IV.1 empowers a court to authorize. For example, it is one thing for a judge to authorize the arrogation by law enforcement officers of a person’s private phone lines for purposes wholly unauthorized by the subscriber or the telephone company, for the purpose of making an interception by telephonic means on the designated premises. It is quite another thing to authorize an investigator to make clandestine entry in the night into a private dwelling, perhaps owned by a stranger to the alleged criminal activity. It takes no imagination to foresee that serious consequences could follow. The public interest might be damaged far out of proportion to any gain to the
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community in crime prevention and detection. These considerations are discussed in the Report of the National Commission for the Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance, (Washington, 1976) ("NWC Report", at pp. 42-44). In my view, all this was foreseen by Parliament when it included s. 178.13(2)(d) which requires the authorizing judge, when granting the authorization, to include in the authorization "such terms and conditions as the judge considers advisable in the public interest".
The issuing court must be alert to the need for a complete demonstration of the necessity for the intercepting procedure. By its nature the radio transmitter or bug picks up all communications in its area. It is indiscriminate. Unlike the simple wiretap, all communications occurring in a room or other area within its listening range are picked up and relayed to the interceptor. It does not confine itself to telephone calls to or by designated individuals. Its installation is a more serious invasion of privacy than the basic wiretap installation. The latest studies in the United States indicate that due to technical problems, unreliability of equipment and problems which might arise upon the installation of the device, radio devices are seldom the subject of authorization: see NWC Report, supra, at p. 44. The telephone instrument, when modified to emulate a bug, raises the same considerations. The nature of the place of interception may also require special precautions by the authorizing court. Equally obvious is the danger associated with the use of microwave and laser beams directed at the designated premises. The courts, therefore, must perform carefully and thoroughly their duty under s. 178.13(2)(d) and pre-scribe terms and conditions which may be advisable in the public interest under which these invasive devices may be installed. This judicial function is the essential safeguard of the public interest in the bilateral operations of Part IV.1 which must at once be both a shield against, and an instrument for, the invasion of privacy. It is for the court to ensure the balancing of these interests
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within the plan prescribed by Parliament.
Third party occupants of premises who are directly affected by the installation of these devices, including those persons who may innocently accost the installer, will be in the same position at law as individuals are generally under the Code in their relationship to the law enforcement process. Their rights in civil law are affected by these provisions of the Code in the same way as in the case of investigative procedures elsewhere established in the Code. Procedural and substantive criminal law has long been construed in this country to include the regulation of direct and inevitably related consequences of criminal law investigation activities. This will include those per-sons who own or are entitled to be in possession of the affected premises. Civil liability of the law enforcement authorities engaged in the proper exercise of the authority granted under the order of authorization is likewise affected and controlled by the provisions of the Criminal Code. These provisions of the Code, s. 40, for example, will apply to the performance of the duties under Part IV.1 of the law enforcement agencies in the same manner as such provisions apply in the case of like actions taken under other provisions of the Code by the criminal investigating agencies.
The power of authorization being found to reside in the section, the next question is to deter-mine if the authorizations issued by the judges in these proceedings are sufficiently broad to empower the action taken by the law enforcement officers in placing the radio apparatus in the private premises and in renewing the batteries in that apparatus on another occasion, both involving personal entry into the premises designated in the authorization.
An application may or may not expressly state an intention to enter the designated premises. In interpreting the order of authorization many of the
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considerations bearing on the interpretation of the terms of Part IV.1, already discussed, apply to the terms of the order issued. Much of the terminology of the order, as here, cornes directly from Part IV.1. The request by the investigating agency for the authorization in the first instance, as also was the case here, will follow the form and content of s. 178.12 and the other provisions of Part IV.1. The court will understand the identical language used in the application as in the Act as carrying the same meaning and will imply the same consequences. Thus a request to install, amongst other apparatus, a radio device, will necessarily entail its installation in or upon the designated premises. Where the premises are a dwelling or any place (other than a hotel room, perhaps), entry for the purpose of installation is a concomitant to the use of such a device. This is expressly stated or taken for granted in the legal literature in the United States over the last twenty-five years and in Canadian writings as well. Professor Stanley A. Cohen, Invasion of Privacy (1983), at p. 193:
Room or house bugs should be available in appropriate circumstances. Covert entry in order to install and remove such devices is a necessary concomitant of such a grant of power.
The judge may in response to such application issue an order in broad terms, as was done here, or may particularize a type of device or devices and their mode of employment. Either type of order is foreseen by the wording of ss. 178.12(1)(e) and 178.13(2)(c); that is, "generally describe the manner of interception that may be used". Having regard to the pattern of Part IV.l, the breadth of authority granted to the court, the importance of the subject matter, and the vitality of the role of the court in the legislative plan as the guardian of the public interest, explicit response by the court to the application for authority to intercept in many cases will require the prescription of "terms and conditions advisable in the public interest" pursuant to para. (2)(d) of s. 178.13.
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The courts responsible for these orders of authorization must be ever concerned with the impact of these orders on members of the community who will obviously be directly affected by them. An order in general terms following the wording of the appropriate subsection of Part IV.1 will not invalidate the order or affect the admissibility of the evidence gathered. Much to be preferred, however, in many circumstances, would be a specific description of the apparatus to be employed, the manner of interception, and the terms and conditions appropriate to the action as revealed by the information contained in the application for authority to intercept.
The authorization orders, supra, issued herein in my view clearly authorized the interception of these private communications whose admissibility is now in issue. The manner of interception "that may be used is interception by means of any electromagnetic, acoustic, mechanical or other device". This occurs in all the authorizing orders. The persons whose private communications may be intercepted are those who "resort to or use the premises" described in the order. There is no mention in the orders of Bouck J. or Toy J. that only private communications which occur on the telephone on those premises may be intercepted. As already observed, there are no telephone numbers indicated for any of the premises at which interception may be made in the authorization order of Bouck J. The authorization being in the terms of the empowering section and not including any limitation on the person authorized with reference to the range of electromagnetic devices which may be used, and there being no terms of the authorizing order which exceed the authority granted under the Code, there is no valid reason to read down the authority which permits the use of electromagnetic devices and which devices include, as already discussed, the radio apparatus here used. As already discussed, radio apparatus of this type can only intercept private communications if installed in the premises. Of simple necessity, therefore, is the result that installation of such a device is permitted by the Code and in turn by the order. For the reasons discussed above in connection with the form and content and proper interpretation
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of Part IV. 1, I conclude that the orders herein issued by the chambers judges, and under which the evidence in question was gathered, fully comply with Part IV.1 and necessarily entail, by clear and irresistible implication, the entry into the premises designated in the order for the purpose of installing this radio device and the renewal batteries.
The third question remains to be answered: Is an interception made by any or all of these means "lawfully made", presuming the authorizing order in turn permits such interception? How much of such conduct by criminal investigating forces can be authorized under Part IV.I? Section 178.12(1)(e) and s. 178.13(2)(c) refer to "the manner of interception proposed to be used" (in the former section) and "the manner of interception that may be used" (in the latter section). The devices that may be used include "electromagnetic ... or other device". This clearly includes the "device" employed by the interceptor here, the radio transmitter. These provisions clearly contemplate the use of radio in these procedures. Had the police used an intermediary or stool pigeon (such as an acquaintance or a person pretending to be a utility company representative) to place the radio transmitter, usually referred to as a bug, on the premises, a different kind of invasion of rights might take place. If the stool pigeon were a friend or confidant or guest of the person being investigated, neither a breach of the criminal law nor of any right in the civil law which would give rise to a cause of action would appear to have occurred. The private communication would be captured as was the case here and transmitted out of the premises. The element of consent by one party to the communication would, of course, be there present.
"Lawfully made", in my respectful view, refers to an interception made in accordance with the
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only authority to be found in the law, namely Part IV. I. An interception made in conformity with an authorization, the terms of which comply with Part IV. 1, is "lawfully made". No one has suggested either in argument here or in any case cited that the legislative sovereignty under s. 91(27) of the Constitution Act cannot support the granting of a complete, lawful basis for an interception made by use of radio in the manner here employed. The offence-creating provisions of Part IVA fall within criminal substantive law, the evidence provisions fall within substantive criminal law and criminal procedure, and the process of issuance of the authorization falls within criminal procedure. Conversely, no suggestion has been made that any provincial enactment could render unlawful an investigation properly authorized under the Code provisions. No other federal legislation to such effect has been identified. If the Code provision properly construed empowers a judge to authorize an interception by means involving personal entry (as I have found to be the case), the interception is, when made pursuant to such authorization, "lawfully made".
What then is the effect in law of the entry into the premises by the interceptor designated in the authorization for the installation of the radio transmitter. Trespass is not by that name the subject of any offence-creating provisions in the Criminal Code. Illegal entry of private premises is of course the basis for offences in ss. 306, 307 and 308 (breaking and entering and being unlawfully in a dwelling house with intent to commit an indictable offence). In the case of the latter section, the presence in the house must be "without lawful excuse" but the entry need not have been either a breaking or an entry with intent to commit an indictable offence, so long as the latter intent is formed after entry. Section 73 of the Code makes it an offence (forcible entry) to enter property in the possession of another "in a manner that is likely to cause a breach of the peace or reasonable apprehension of a breach of the peace". A provision closer to the circumstances here arising is found in s. 173 of the Code which makes it an
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offence to "loiter ... or prowl ... at night upon the property of another person near a dwelling house situated on that property". Again the offence is conditional upon the presence by the accused on such property "without lawful excuse". The resistance to a forcible entry and trespass is authorized by ss. 40 and 41.
The term "lawfully made", when it appears in a codification of criminal law, favours the conclusion that it means "not contrary to criminal law". It would not be construed without something more in the phrase, as meaning "made in conformity with all laws". For example, it would be an extension of the ordinary meaning of those words in their con-text in the Criminal Code to adopt an interpretation ruling the interception to be unlawfully made because it contravened the laws of copyright; or because it invaded a civil right such as the right to privacy; or indeed, because the act of interception constituted a tort such as deceit or trespass where the tort in question has no presence in the Criminal Code in the form in which the tort in question was committed. This would appear to be a proper interpretative approach for several reasons. Sections 178.12 and 178.13 authorize interception generally, including by means of acoustic and electromagnetic devices. Some of these interception devices entail civil trespass falling short of person-al entry by the interceptor onto the designated premises; others entail a preparatory entry. As we have seen, today’s technology includes the interception of oral communications inside a private dwelling by directing into or onto that dwelling, acoustic and electromagnetic waves, including light waves, and electron streams over telephone and electricity lines. By means of this activity across the premises in question, the interceptor is able to draw out from the premises oral communications conducted therein. The Criminal Code empowers a court to authorize such procedures. It is unreasonable, in my view, to read s. 178.16 of Part IV.1, a mini-Code of interception regulation, as rendering the content of such interception inadmissible by reason of the fact that the use of
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almost all of those procedures entails a mode of entry into the premises amounting in civil law to trespass.
By virtue of s. 178.11, the interception is criminal if it amounts to a wilful interception of a private communication. The issue on admissibility then resolves itself into the simple question: does the personal entry into the premises of the interceptor, for the purpose of installing the device, amount to a breach of Part IV.l, namely s. 178.11? That, in turn, takes the inquiry into ss. 306 and 307, supra, and to the other sections of the Code discussed in connection with those sections. By those provisions the offence is committed if entry is made with intent to commit an indict-able offence. This requirement in turn leads back to s. 178.11 and the question as to whether the intended interception was "lawful", and whether it is authorized under ss. 178.12 and 178.13. The trail is equally circular if one starts the inquiry at s. 73 or s. 173 of the Code, supra.
Further support for my conclusions may be found by considering s. 287 of the Criminal Code which provides in part:
287. (1) Everyone commits theft who fraudulently, maliciously, or without colour of right,
(b) uses any telecommunication facility or obtains any telecommunication service.
Section 287(2) of the Code repeats virtually verbatim the definition of "telecommunication", which we have already found in other federal legislation, supra. The interceptor, in the ordinary wiretap interception, "uses [a] telecommunication facility". It is arguable that he has done so "with-out colour of right" unless Part IV.1 by necessary implication authorizes the "use" of such "telecommunication" facility. Whether the officer has "used" the telecommunication facility may be a matter of debate. In the simple factual sense, he has done so by connecting his interception device
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to the phone wires which he then "uses" to activate (or "actuate" as it appears in the United States literature, supra) his receiver. The interceptor, at the same time, is "using" the whole telecommunication facility including the telephone instrument in the designated premises, the. telephone at the other end of the line, and the connecting wires, as well as any intermediate telephone exchanges and equipment through which the voice path may pass. It is only because the interceptor does not speak and that he is not a subscriber that he could not be said to "use" the telecommunication facility. It would be difficult for an accused who connected receiving equipment to the "telecommunications facility" (the telephone wires) in order to record data passing over the system, to deny a "use" of such facility only because the accused has not made use of the facility’s voice communication capacity.
It might be argued that the interceptor acted "without colour of right". Here the use of telephone tapping apparatus is not expressly granted. If the interceptor may make a wiretap under colour of right with a wiretapping device, so it may be that the radio transmitter was installed "with colour of right". If that is so, the authorization may be the basis for defence under s. 287. It would be curious if that were so, but still not a "lawful" basis for the making of an interception under s. 178.11(1).
The Radio Act raises similar problems. The use of a radio transmitter, which is the bug in these proceedings, is prohibited by that Act unless licensed under the statute. There is nothing to indicate any authority under the Radio Act for the interceptor here to operate this transmitter, nor is there any claim that the device is exempt under s. 3(2) of the Act by reason of its limited power. All these considerations go to the test of admissibility of evidence so received under s. 178.16(1), that is
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"was the interception lawfully made?" Similarly the term "lawfully" cannot mean in accordance with any and all laws. The Copyright Act might be infringed by recording some private communications. This would not render the evidence inadmissible, and nor would interception by means which might give rise to a cause of action in civil law. I conclude that "lawfully made" means made in accordance with Part IV.l, "Invasion of Privacy", the mini-Code regulating the manner and extent of invasion.
Part IV.1 was recently before the Ontario Court of Appeal in R. v. Papalia (1984), 47 O.R. (2d) 289. In those proceedings the authorization order expressly authorized entry into "such places as may be necessary in order to install, monitor and remove any electromagnetic, acoustic, mechanical or other devices ...." The manner of interception there authorized was "by the use of audio transmitter and receiver, an electromagnetic, acoustic device sometimes referred to as a microphone and amplifier installed at or near ... " the designated premises. Acting under this authorization, radio devices were installed in two automobiles and an electromagnetic device was connected to telephone wires inside the designated premises so as to use that instrument for the interception of private communications in the same manner as in the case of a radio bug. Covert entry was gained into these premises for that purpose. The radio devices were likewise installed in the two cars without the owners’ knowledge or consent. The court held the interception thereby made to have been lawfully made and therefore admissible in evidence. Brooke J.A., speaking on behalf of the court, stated:
... almost all instances of wire-tapping and electronic surveillance involve conduct in the nature of trespass and this includes surreptitious or covert entry. Without the consent of the owner, to interfere with a telephone
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line, telephone receiver or transmitter or switching equipment is a trespass .... I am convinced that Parliament understood this when this legislation was passed and intended to deal with the whole problem by establishing an acceptable scheme through the use of an authorization granted by a judge only when it was genuinely necessary to do so judged on the criteria laid down by Parliament to permit this invasion of privacy which carried with it the necessary invasion of a private right.
Brooke J.A. then went on to conclude that it was not necessary to expressly authorize such entry or conduct on the part of the law enforcement agent "when he grants the authorization to conduct electronic surveillance" because such surveillance can be carried out only "if conduct such as that referred to is resorted to. The authorization carries with it authority for the police officer to resort to conduct in the nature of a trespass including entry to install the device necessary to conduct the authorized electronic surveillance and the officer’s conduct in so doing is lawful".
To like effect are the observations of Chief Justice McGillivray speaking in dissent in the Court of Appeal of Alberta in the Reference re an Application for an Authorization (1983), 5 D.L.R. (4th) 601. The Chief Justice there concluded that the distinction between wiretapping and bugging was known to and understood by Parliament when Part IV.l was enacted. Parliament also appreciated, in the Chief Justice’s view, that con-duct in the nature of trespass, including surreptitious entry, was an integral part of electronic eavesdropping.
I find further support for my conclusions on the questions discussed above in the decision of the United States Supreme Court in Dalia v. United States, 441 U.S. 238 (1979), where the Court examined Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C., §2510-2520, which permits courts to authorize electronic surveillance by government officers in specified situations.
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The origin of Part IV.1 is obvious when one observes its remarkable similarity to Title ill. Title IlI prohibits the interception and disclosure of "wire communications" or "oral communications" (defined terms roughly equivalent to "private communications" in Part IV.l) except where a party to the communication consents, or where the interception is made pursuant to a valid authorization obtained from a judge of competent jurisdiction. Under §2518 of Title III an authorizing judge must in the authorization specify: the identity of the person, if known, whose communications are to be intercepted; the place where authority to intercept is granted; a particular description of the type of communication sought to be intercepted, and a statement of the particular offence to which it relates; the identity of the agency authorized to intercept, and of the person authorizing the application for the authorization; and the period of time for which the authorization is granted. Under Title III the authorizing judge may allow an interception through the use of any "electronic, mechanical or other device".
As is the case in our Part IV.1, no mention is made in Title lII of entry to the named premises as a means of facilitating an interception. How-ever, there are two differences between Title III and our Part IV.1 which must be noted. Firstly, Title Ill contains no provision similar to our s. 178.13(2)(d) which allows an authorizing judge to impose conditions in the authorization which the judge considers advisable in the public interest. Secondly, any authorization under Title III must contain a provision specifying that the interception shall be conducted in such a way as to minimize the extent of the communications intercepted.
In Dalia, supra, the United States Supreme Court concluded at the outset (at p. 248) that "The Fourth Amendment [to the United States Constitution] does not prohibit per se a covert entry performed for the purpose of installing otherwise legal electronic bugging equipment". In response to the petitioner’s contention that Congress had not given the courts statutory authority
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to approve covert entries for the purpose of installing surveillance equipment, Powell J., delivering the majority opinion of the Court, said at pp. 249-50:
Title III does not refer explicitly to covert entry. The language, structure, and history of the statute, however, demonstrate that Congress meant to authorize courts-in certain specified circumstances-to approve electronic surveillance without limitation on the means necessary to its accomplishment, so long as they are reason-able under the circumstances. Title III provides a comprehensive scheme for the regulation of electronic surveillance, prohibiting all secret interception of communications except as authorized by certain state and federal judges in response to applications from specified federal and state law enforcement officials .... Although Congress was fully aware of the distinction between bugging and wiretapping ... Title III by its terms deals with each form of surveillance in essentially the same manner.... Orders authorizing interceptions of either wire or oral communications may be entered only after the court has made specific determinations concerning the likelihood that the interception will disclose evidence of criminal conduct .... Moreover, with respect to both wiretapping and bugging, an authorizing court must specify the exact scope of the surveillance undertaken, enumerating the parties whose communications are to be overheard (if they are known), the place to be monitored, and the agency that will do the monitoring.
Nowhere in Title III is there any indication that the authority of courts under §2518 is to be limited to approving those methods of interception that do not require covert entry for installation of the intercepting equipment.
After examining the legislative history of Title III, the Court concluded, at p. 252:
...,one simply cannot assume that Congress, aware that most bugging requires covert entry, nonetheless wished to except surveillance requiring such entries from the broad authorization of Title III, and that it resolved to do so by remaining silent on the subject. On the contrary, the language and history of Title III convey quite a different explanation for Congress’ failure to distinguish
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between surveillance that requires covert entry and that which does not: Those considering the surveillance legislation understood that, by authorizing electronic interception of oral communications in addition to wire communications, they were necessarily authorizing surreptitious entries.
The majority of the Court concluded that Congress meant to confer upon the courts the power to authorize covert entries "ancillary to their responsibility to review and approve surveillance applications under the statute" (p. 254), and held that the surveillance order need not include a specific authorization to enter covertly the premises described in the order.
The majority of the Court therefore held that covert entry did not render evidence obtained pursuant to a valid authorization inadmissible under §2515 of Title III, which reads as follows:
§2515 Prohibition of use as evidence of intercepted wire or oral communications
Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.
In an earlier case, United States v. Scafidi, 564 F.2d 633 (1977), the United States Court of Appeals, Second Circuit, held that an order granting authorization to "bug" private premises carried with it authority for secret entry to place and maintain the device. With reference to this issue Moore J., for the Court, stated at p. 640:
Once a judicial officer is convinced by the facts presented to him that electronic surveillance will aid in
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the detection of crime, his authorization that it be used should then transfer to the appropriate police agency the decision as to the precise mechanical means whereby the order is to be carried out. If the instrumentality to be used is a "bug", the placing of such a bug must of necessity be in the hands of the persons so authorized. And such placing will have to be surreptitious, for no self-respecting police officer would openly seek permission from the person to be surveilled to install a "bug" to intercept his conversations.
It would be highly naive to impute to a district judge a belief that the device required to effect his bugging authorization did not require installation.
It is significant that the statute, generally so detailed in its supervisory requirements, makes no mention of any need for a separate entry order. That the statute requires general supervision by the courts over the bugging operation does not even impliedly impose on them the practical enforcement steps.
I am of the opinion, notwithstanding the differences that do exist between Title III and Part IV.1 of the Criminal Code, that the approach adopted in the above two cases in the courts of the United States is equally applicable to the legislation in force in this country. A helpful discussion of the two enactments appears in Watt, Law of Electronic Surveillance in Canada, supra, at p. 128.
In the judgment of McDonald J. in Re Application for Authorization to Intercept Private Communications, [1982] 6 W.W.R. 533, 31 C.R. (3d) 31, his Lordship, at pp. 546 and 47 respectively, queried whether the understanding by the United States legislators that authorizing interceptions necessarily meant surreptitious entry as mentioned in Dalia, supra, necessarily applied to the Canadian legislators.
There is much discussion in the courts below and in the course of argument in this court based upon materials which originated in Committees of Parliament of Canada, Hansard, and some materials and texts which relate to matters discussed during the legislative process leading to the pas-sage of Part IV.1. This Court, in Re Anti-lnflation Act, [1976] 2 S.C.R. 373, had occasion to
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deal with the use to which this kind of material can be properly put. As Laskin C.J. said, at p. 387:
The material offered by the Attorney-General of Canada concerned the social and economic conditions under which the Anti-Inflation Act was passed and the evils with which it purported to deal.
To the same effect is the discussion by Beetz J., at pp. 470-71, concerning the use of policy statements and other material tabled in the House of Commons and in Committees of the House. This material is not considered by the courts in arriving at the proper construction to be placed upon language used by the Legislature, but only with reference to the aims of the legislating body and the evils with which it was then contending. See also Lower Mainland Dairy Products Board v. Turners Dairy Ltd., [1941] S.C.R. 573, per Taschereau J., as he then was, at p. 583; Home Oil Distributors, Ltd. v. Attorney-General of British Columbia, [1940] S.C.R. 444, at p. 447, per Kerwin J. as he then was; and .Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg AG, [1975] 1 All E.R. 810, per Lord Reid at p. 814. Another source of material outside the record to which courts frequently take recourse is other judgments dealing with the same subject matter, in this case the nature of electromagnetic apparatus and the invasive characteristics of present-day communication technology: see Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191 (1931), per Brandeis J., at pp. 200-01; Reference re Regulation and Control of Radio Communication, [1931] S.C.R. 541, per Smith J., at pp. 569-71; and Composers, Authors and Publishers Association of Canada Ltd. v. CTV Television Network Ltd., [1966] Ex.C.R. 872, per Jackett P., at pp. 877-79. Courts take recourse in the analysis and assessment of technical and specialized knowledge generally to texts, encyclopedias, professional journals and like sources, all as discussed and illustrated in Wigmore on Evidence (3rd ed. 1940), vol. 1, at pp. 21-22; Phipson on Evidence (12th ed.), paragraphs 46-60; and Cross on Evidence (5th ed.), at pp. 154-160.
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Before the Protection of Privacy Act was enacted (1973-74 (Can.), c. 50) several articles and texts had been written and reports made on the subject of wiretapping and electronic eavesdrop-ping. Actually the first federal wiretapping legislation is found in the statute incorporating the Bell Telephone Company, 1880 (Can.), c. 67, s. 25, which made the interception of a message transmitted on the company’s telephone lines, a misdemeanour. In 1965, the government of the day had appointed the Canadian Committee on Corrections. The Committee delivered its report, generally called the Ouimet Report, to the government in 1969. Recommendations were made in this Report and, as stated in Morris Manning, The Protection of Privacy Act (1974), at pp. 4-5, "Those recommendations were clearly adopted by Parliament". The Ouimet Report clearly recognizes throughout its study the distinction between the use of wiretap and the use of electronic bugging equipment for intercepting private communications. The Committee defined these terms as follows, at p. 81:
The term wiretapping is commonly used to describe the listening in on conversations on the telephone through the use of electronic equipment and other devices. Electronic eavesdropping or "bugging" is a term commonly used to describe forms of eavesdropping other than wiretapping.
One of the common forms of eavesdropping involves the placing of a concealed device in a specific location to receive and transmit conversations.
After reviewing very limited provincial statutory regulation of wiretapping (in Manitoba and Alberta, telephone legislation), the Committee observed, at pp. 82-83:
Wiretapping is presently used by police forces in the investigation of suspected criminal activities. The extent to which it is used is not known. It is obvious, however, that electronic eavesdropping other than wiretapping is
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used extensively in the investigation of certain kinds of suspected criminal activity.
The Committee is of the view that federal legislation controlling the use of wiretapping and electronic eaves-dropping in law enforcement is required.
Throughout its Report, when discussing the subject of surveillance, the Committee always recognised the distinction between wiretapping and electronic eavesdropping. In its recommendations concerning the extent of legislative control required, the Committee stipulated that the judicial order of authorization should "specify in detail the person or persons whose conversations are to be intercepted, the place or places and the facilities in respect of which the order is made ... " (at p. 86). The Committee, having prescribed the terms and conditions to be included in the authorization then turned to the question of the "Admissibility of Conversations Obtained through Wiretapping and Electronic Surveillance" and reported, at p. 88:
The Committee is of the view that illegally intercepted conversations should not be admissible against an accused at his trial and that this principle of exclusion should apply to evidence derived through such illegal interception.
(Emphasis in original.)
Clearly the Report was directed to the exclusion of evidence gathered without authorization or conformity to the authorization as provided in the proposed legislation.
Prior to the Ouimet Report there had been other writings and studies in Canada dealing with this subject matter. See Report of the Proceedings of the National Conference on the Prevention of Crime, Centre of Criminology, University of Toronto, June 1965, at p. 70; Stanley M. Beck, Electronic Surveillance and the Administration of Criminal Justice (1968), 46 Can. Bar Rev. 643; British Columbia Report of the Commission of Inquiry Into Invasion of Privacy (1967), (the
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"Sargent Report") at pp. 30-31; Inquiry Re Magistrate Frederick J. Bannon and Magistrate George W. Gardhouse (1968), (the "Grant Report") at pp. 11-24; N.M. Chorney, Wiretap-ping and Electronic Eavesdropping (1964-65), 7 Crim. L.Q. 434; and David A. Cornfield, The Right to Privacy in Canada (1967), 25 U. of T. Fac. L. Rev. 103. The courts had also considered the evidentiary ramifications of police investigations which made use of radio and recording devices: R. v. Steinberg, [1967] 1 O.R. 733.
In the United States these investigative techniques came into use much earlier and were discussed in the United States Supreme Court for the first time in Olmstead v. United States, 277 U.S. 438 (1928). The decision of that court in Berger v. New York, 388 U.S. 41 (1967), influenced congressional action undertaken shortly thereafter for the regulation of wiretapping and electronic surveillance. There was considerable literature on the subject. That bearing directly on the issue raised in these proceedings may be found in Alan F. Westin, Science, Privacy and Freedom: Issues and Proposals for the 1970’s, 66 Columbia Law Review 1003 (1966); and that author’s text Privacy and Freedom (New York 1970); and Dash, Schwartz and Knowlton, The Eavesdroppers (1959), at pp. 35-285; Kalven, The Problems of Privacy in the Year 2000, Daedalus, Summer 1967, at pp. 876-77. Government action began in earnest at the federal level with the appointment of a presidential commission on Law Enforcement and the Administration of Justice which reported in 1967. This report (at p. 201) clearly recognizes the difference in vital characteristics between wiretap-ping and eavesdropping, as did the proposed legislation annexed thereto which largely survived and appears in United States Code at Title III. In the following year Congress enacted the Omnibus Crime Control and Safe Streets Act of 1968, Public Law, 90-351, 82 Stat. 197 (1968), Title 111, Wiretapping and Electronic Surveillance (now 18 U.S.C., §2510-2520).
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All of this Canadian material, and no doubt much of the United States literature, judicial and legislative activities, were before Parliament during the legislative process which began in 1969. (As observed in the Manning text, supra, our Act follows very closely the Omnibus Crime Control and Safe Streets Act of 1968.) The House of Commons Standing Committee on Justice and Legal Affairs, after a review of the subject matter, reported to the House of Commons in March of 1970. The Committee made numerous recommendations relating to both wiretapping and electronic eavesdropping, and did so after extensive hearings. A government study was undertaken in April 1971 into the whole question of privacy and a report was filed in December 1972 under the name "The Task Force on Privacy and Computers". In June of 1971 the Minister of Justice introduced the first bill relating to privacy. This was followed by a like bill introduced in 1972 which was referred to and examined by the Standing Committee on Justice and Legal Affairs which also conducted hearings and reported to the House of Commons in 1972. That bill died on the order paper and was followed by the introduction of the present Act in April 1973 where again the matter was referred to the Standing Committee on Justice and Legal Affairs. Once again the Committee conducted hearings and reviewed the bill and reported to the House recommending several amendments. During this three-year period the subject matter of privacy was examined by the Senate in much the same way. An illustration of the depth of these prolonged studies is found in the testimony of Professor James R. Thompson, Northwestern University School of Law, before the Standing Committee on Justice and Legal Affairs, May 27, 1969, p. 1042:
Wiretapping-that is, interception and disclosure of telephone conversations-is a Federal crime [in the United States] .... Eavesdropping is a different matter. It may be divided into two kinds-that which involves trespassory invasion of protected premises for example the planting of a `bug’ in a home, or the insertion of a
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`spike’ mike into a common wall, and non-trespassory actions, e.g. merely listening on one side of a common wall or aiming a parabolic microphone at an open window.
The learned author of The Protection of Privacy Act, supra, observed, at p. 3:
The Act in its present form was given most careful consideration by both the House of Commons and its Standing Committee on Justice and Legal Affairs. Both bodies studied the Act section by section and a reading of the voluminous debates and reports provides an excel-lent view of our parliamentary process in action.
Lengthy parliamentary contact with this matter is shown by the five statutes, supra, enacted over many years and dealing with the definition and regulation of telecommunication. Professor Beck, whose article, supra, was mentioned many times in the Commons Committees’ Reports during the process leading up to the 1974 Act, describes the state of affairs in 1968, at p. 650:
To sum up, the limited number of public disclosures of police use of electronic surveillance in Canada does not indicate limited use.
For a more detailed description of the devices available in Canada for interception of private communications at that time, see Beck, supra, p. 651, where the use of radio devices is discussed in detail. A similar discussion occurs in the Sargent Report, supra, at pp. 30-31. The use of microwave transmissions directed at premises under surveillance to withdraw therefrom private conversations is likewise discussed in the Beck article, supra, at p. 652.
Bearing in mind the amount of material gathered in the extensive legislative process leading up to the enactment of the Protection of Privacy Act in 1973, 1 must adopt the comments made by Chief Justice McGillivray in the Reference re an Application for an Authorization, supra, at p. 614:
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In light of the record quoted above I have difficulty in accepting the commission’s conclusions that Parliament was not well aware that, apart from the isolated cases, the placing of transmitter devices on premises occupied by a suspect would be expected to be done either by surreptitious entry or by a trick.
It is not clear from the judgment of McDonald J., supra, at p. 535, precisely what the investigating agency sought from the chambers judge;
The agents sought to have me make an order permitting the interception of communications by microphone, and I granted the order in that regard.
A microphone is, of course, incapable by itself of intercepting anything and may be used in association with other equipment for both wiretapping and eavesdropping. The judgment does not reveal the use proposed. The learned judge then refused to authorize entry to install a "microphone". The court may there have been dealing with a micro-phone designed to convert a telephone into a room-listening device energized from outside the premises, or a radio device. If the latter, the authorization of interception by such device without means of installation is futile. Later in his reasons, the use of "the microphone" was limited to circumstances where it could be installed without "trespass". Presumably, this refers to personal trespass by the interceptor against the property or person of the interceptee. No example or illustration was given of "acceptable entry" except, perhaps, in a hotel room before the guest arrives.
Chief Justice McGillivray, as discussed earlier, took a different approach. He read the legislation in the light of the evil that Parliament was seeking to redress. Mr. Justice Clements, in the same court, in R. v. McQueen (1975), 25 C.C.C. 262, expressly applied to ss. 178.16(1) the same reasoning as the Chief Justice so as not to extend the application of that provision "to absurd lengths and hamper normal police investigation to an
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extent that would seriously jeopardize the public interest in the detection of crime".
When seeking the proper interpretation of these provisions one should ask if Parliament must be taken as intending to give an authority to the investigating forces which could not be put to use. The invocation of powers granted under Part IVA in aid of crime detection serves no purpose if the authorization granted relates only to isolated pieces of equipment without any direction or authorization that it be employed in association with authorized devices for interception either by wiretapping or for electronic or acoustic surveillance. It is one thing to leave too much to the discretion of the investigative agency but quite another to stultify the whole undertaking.
It might be noted that the interpretations which I believe should be placed upon Part IV.1 are also consistent with the provisions of s. 25(1) of the Criminal Code and s. 26(2) of the Interpretation Act, R.S.C. 1970, c. I-23, although apart from these provisions my conclusions would still stand. These sections read in part as follows:
25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable and probable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
26... .
(2) Where power is given to a person, officer or functionary, to do or enforce the doing of any act or thing, all such powers shall be deemed to be also given as are necessary to enable the person, officer or functionary to do or enforce the doing of the act or thing.
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Section 26 of the Interpretation Act was considered by this Court in Colet v. The Queen, [1981] 1 S.C.R. 2. The issue there before the Court was whether a warrant to seize firearms issued pursuant to s. 105(1) of the Criminal Code as it then was (now s. 101(1)) authorized the officers acting under it to enter onto the property of the person named in the warrant and search for firearms. With respect to s. 105(1), which empowered the court to issue only a warrant to seize, this Court drew a distinction between the authority to seize and the power to enter upon premises for such a purpose. Ritchie J., delivering the judgment of this Court, stated at pp. 9-11:
In support of the contention that the authority to seize included authority to search, the respondent drew attention to the provisions of s. 26 of the Interpretation Act, R.S.C. 1970 c. 1-23, and in so doing contended that the power to search was a necessary ingredient of the power "to seize". Section 26(2) of the Interpretation Act reads as follows:
(2) Where power is given to a person, officer or functionary, to do or enforce the doing of any act or thing, all such powers shall be deemed to be also given as are necessary to enable the person, officer or functionary to do or enforce the doing of the act or thing.
As I have indicated, I am of the opinion that any statutory provision authorizing police officers to invade the property of others without invitation or permission would be an encroachment on the common law rights of the property owner and in case of any ambiguity would be subject to a strict construction in favour of the common law rights of the owner. This is made plain from the following excerpt from Maxwell on Interpretation of Statutes, 12th ed., at p. 251 where it is said:
Statutes which encroach on the rights of the subject, whether as regards person or property, are subject to a strict construction in the same way as penal Acts. It is a recognised rule that they should be interpreted, if possible, so as to respect such rights, and if there is any ambiguity the construction which is in favour of the freedom of the individual should be adopted.
It appears to me to follow tha[t] any provision authorizing police officers to search and enter private property
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must be phrased in express terms and the provisions of the Interpretation Act are not to be considered as clothing police officers by implication with authority to search when s. 105(1) and the warrant issued pursuant thereto are limited to seizure. The extensive number of sections of the Criminal Code to which reference was made by the trial judge and which expressly include the dual authority "to search" and "to seize" are enough in themselves to indicate that the deeming provisions of s. 26(2) of the interpretation Act are not applicable to the circumstances.
I am satisfied to adopt the reasoning of Mr. Justice Toy and I share his view that a wide distinction exists between the meaning of "to seize" and that of "to search". As Mr. Justice Toy has pointed out, it is demonstrable that when Parliament sought to include the right to search in providing for the authority to seize, it did so in specific terms ...
Nowhere in Part IV.1 of the Criminal Code or anywhere else in the Code, however, is a distinction made between "interception" of a private communication and entry for the purpose of effecting the interception. Reasoning applicable to the well-recognized distinction between search and seizure is not applicable to the present case. Further-more, by virtue of s. 178.13(2)(c) an authorization must contain a general description of the place at which the interception is to be made and the manner of interception to be used. Part IV.l empowers the court to authorize the interception of private conversations at specified locations by some methods which of necessity require covert placing of electronic devices; and all methods of interception included in Part IV.l involve some form of physical invasion of the premises, as discussed supra. The Code provisions relating to search and to seizure persistently distinguish between these two activities as was pointed out in Colet, supra. On the other hand, as was pointed out by Chief Justice McGillivray in the Reference re an Application for an Authorization, supra at pp. 609-10:
Here there is no element of invasion, no challenge to a protesting occupier .... The success of the operation is that the transmitter is planted without the knowledge of the occupier.
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Here the authority is not to seize or to search, but to intercept private communications at a particular place.
The operation being regulated by Parliament in Part IV.1 was the interception of conversations, a separate, distinct and complete transaction. Parliament did not divide into parts or phases, nor are there contrasting measures elsewhere in the Code relating to these activities, as is the case with the search provisions and the seizure provisions in the Criminal Code.
Similarly, I am of the opinion that the recent decisions of the House of Lords in Finnigan v. Sandiford and Clowser v. Chaplin, reported together at [1981] 2 All E.R. 267, and Morris v. Beardmore, [ 1981 ] A.C. 446, are not applicable in this case.
It is the impact on and the significance of Part IV.1 in our criminal law system that leads me to the interpretations which I have placed upon these provisions. The importance of Part IV.l is the recognition by Parliament of the need to curtail, or at least bring under positive control, the practice of eavesdropping by one means or another. The necessary result of such legislation is the express and implied recognition of invasion of citizens’ rights. This is the important crux of s. 178.1, et seq. It is the invasion of the mind through the covert discovery and recording of the voice, that is, that makes the powers granted in these provisions so significant in our community. It is the entry into the mind by the power to intercept private communications and not the entry into or upon per-sons’ property that is of significance. I find the words of Chief Justice McGillivray in the Reference re an Application for an Authorization, supra, very apt (at p. 612):
Once that invasion was authorized the means were merely incidental.
Once the power is granted by Parliament to authorize, and once the authorizing power has been exercised, that which might have given rise to tortious action in the past would no longer do so;
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the authorized conduct would not in law amount to trespass.
In summary, I can find no special limitation in Part IV.1 on the use of radio devices for the interception of private communications. These devices are clearly included in the permitted forms of interception. A radio device of the type here employed, by its very characteristics, requires installation at the situs of the private communication. Apart from that specific reality in the case of radio, all other forms of retrieval of private communications from inside buildings entail some degree of physical presence in the sense of invasion of the designated premises by physical forces. The very fact that the authorization must include the place at which the interception is to be made and a description of that place, must alert the authorizing authority to the nature and manner of the proposed interception. The Code goes on to require the order of authorization to specify a manner of interception as was done in the orders here. I believe that a court, in issuing an authorization under Part IV.1, should, in the exercise of its supervisory function, designate the type of device or devices which may be employed and the procedures and conditions which, in the circumstances revealed in the application, are necessary or advisable in the public interest. The absence of such detail does not go to the validity of the order because in many circumstances only the general clauses of the subsections themselves will be appropriate. My observation is intended to give emphasis to the importance of the judicial role in the program of privacy regulation as prescribed by Parliament in these provisions. I cannot but conclude that Parliament intentionally adopted a broad and, at the same time, detailed code of provisions for the controlled interception of private communications, including interception in the manner which here occurred. It is for the judiciary to protect the public interest and to maintain in the authorizing process the balance between the two competing elements inherent in the regulation of the invasion of privacy in the detection of crime. Third party occupants and their relationship to the officers engaged in installing these devices will be governed by those provisions in the Code relating to the position of law enforcement officers in the
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execution of their duties generally. The position of the occupants under civil law will be affected by Part IV.1 in the same way as other provisions in the Code may affect the rights in individuals affected by law enforcement operations. Since 1977 a greater burden has been placed upon the court to know the nature of the proposed interception and the manner in which such interception is to be made. This in turn enables the court to prescribe the terms and conditions which shall be considered advisable in the public interest in all the circumstances surrounding the proposed interception.
For these reasons, I would dismiss the appeals.
Appeals dismissed, DICKSON and CHOUINARD JJ. dissenting.
Solicitor for the appellant Lyons: Howard Rubin, North Vancouver.
Solicitors for the appellant Prevedoros: Clarke, Covell, Banks, Vancouver.
Solicitors for the appellant McGuire: Achtem, Alexander, Victoria.
Solicitor for the respondent: Roger Tassé, Ottawa.