R. v. Wong, [1990] 3 S.C.R. 36
Santiago Wong Appellant
v.
Her Majesty The Queen Respondent
‑ and ‑
The Attorney General of Canada and
the Attorney General for Alberta Interveners
indexed as: r. v. wong
File No.: 20549.
1990: May 2; 1990: November 22.
Present: Dickson C.J.* and Lamer C.J.** and Wilson, La Forest, L'Heureux‑Dubé, Sopinka and McLachlin JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search and seizure ‑‑ Evidence obtained by electronic video surveillance conducted without authorization ‑‑ Videotape entered into evidence ‑‑ Whether surreptitious video surveillance of hotel room by police without prior judicial authorization infringes s. 8 of the Charter ‑‑ If so, whether or not it was justified by s. 1 of the Charter ‑‑ Canadian Charter of Rights and Freedoms, ss. 1, 8.
Constitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search and seizure ‑‑ Evidence obtained by electronic video surveillance conducted without authorization ‑‑ Videotape entered into evidence ‑‑ Whether surreptitious video surveillance of hotel room by police without prior judicial authorization infringes s. 8 of the Charter ‑‑ If so, whether admission into evidence of videotape would bring administration of justice into disrepute under s. 24(2) of the Charter ‑‑ Canadian Charter of Rights and Freedoms, ss. 8, 24(2).
Evidence ‑‑ Admissibility ‑‑ Evidence obtained by electronic video surveillance conducted without authorization ‑‑ Videotape entered into evidence ‑‑ Admissibility of videotape ‑‑ Whether video surveillance without authorization infringes s. 8 of the Charter ‑‑ If so, whether or not it was justified by s. 1 of the Charter ‑‑ Whether or not admission of evidence, if obtained in breach of the Charter, would bring administration of justice into disrepute.
Criminal law ‑‑ Electronic video surveillance ‑‑ Evidence obtained by electronic video surveillance conducted without authorization ‑‑ Videotape entered into evidence ‑‑ Whether video surveillance infringed Charter right to freedom from unreasonable search and seizure ‑‑ If so, whether or not it was justified by s. 1 of the Charter.
Police installed a video camera without prior judicial authorization and monitored the activities in a hotel room registered to the appellant in the course of an investigation of a "floating" gaming house. They conducted a raid and found the appellant to be in possession of profit lists. They seized gaming paraphernalia and a large sum of money. The trial judge acquitted the appellant of keeping a common gaming house. He held that the video surveillance was a violation of s. 8 of the Canadian Charter of Rights and Freedoms and excluded the evidence thereby obtained under s. 24(2). The Court of Appeal allowed the appeal against acquittal and ordered a new trial on the ground that s. 8 was not violated.
The constitutional questions stated in this Court were: (1) whether surreptitious video surveillance by police of a hotel room without prior judicial authorization infringes s. 8 of the Charter; (2) if so, whether it is justified by s. 1 of the Charter; and (3) if those rights have been infringed, whether the admission into evidence of the videotape would bring the administration of justice into disrepute under s. 24(2) of the Charter.
Held (Wilson J. dissenting): The appeal should be dismissed.
Per Dickson C.J. and La Forest, L'Heureux‑Dubé and Sopinka JJ.: The degree of privacy reasonably expected in a free society would be seriously diminished by unrestricted video surveillance by agents of the state. A person who occupies a hotel room has a reasonable expectation of privacy, and a warrantless video search there constituted an unreasonable search and seizure. Whether persons who are the objects of an electronic search have a reasonable expectation of privacy does not depend on whether or not those persons were engaged in illegal activities. The protection of s. 8 of the Charter is meant to shield against warrantless video surveillance and the unauthorized video surveillance offended against the reasonable expectations of privacy protected by that section.
It is for Parliament, and not the courts, to devise a code of procedure for judicial pre-authorization of the use by law enforcement agencies of electronic video surveillance for the purposes of criminal investigations. The courts' function is to assess the constitutionality of such procedures. Part IV.1 of the Criminal Code dealing with electronic interception of oral communications did not apply to electronic video surveillance.
The surreptious video surveillance was not justified by s. 1 of the Charter. However, the appellant did not establish that the admission of the evidence would bring the administration of justice into disrepute for the purposes of s. 24(2) of the Charter. The police acted in good faith and had reasonable and probable grounds to believe that the offence had been committed. The Charter breach stemmed from an entirely reasonable misunderstanding of the law by the police officers who had sought legal advice about the steps that could be taken to obtain evidence they could not otherwise obtain.
Per Lamer C.J. and McLachlin J.: Not every unauthorized electronic surveillance carried out by the agents of the state violates s. 8 of the Charter. R. v. Duarte stands for the proposition that the recording of a private communication, without the consent of all parties thereto, constitutes a search for the purpose of s. 8. Such a search may be reasonable only where prior judicial authorization has been obtained. Unauthorized surreptitious electronic surveillance will violate s. 8 where the target of the surveillance has a reasonable expectation of privacy. The consideration of whether an individual has a reasonable expectation of privacy can only be decided within the particular factual context of the surveillance. The appellant had no reasonable expectation of privacy as he had invited the public into the hotel room and, accordingly, no search took place within the meaning of s. 8.
Per Wilson J. (dissenting): The reasons of La Forest J. on the s. 8 violation were agreed with. The dissent was confined to the s. 24(2) issue.
The presence of the words "having regard to all the circumstances" in s. 24(2) of the Charter suggests that the context is vital in determining whether evidence obtained in violation of Charter rights should nonetheless be admitted. The videotape evidence existed purely as a result of the violation of s. 8. In this sense it was analogous to a confession and quite different from evidence which has an independent existence apart entirely from the Charter violation.
Fair trial considerations favoured the exclusion of the videotape evidence. Police could and should have sought an authorization for a wiretap under Part IV.1 of the Criminal Code, at which time they could have put to the authorizing judge their desire to use video surveillance independent from or in addition to audio surveillance. Instead, they proceeded in blatant disregard for the appellant's Charter rights. Their conduct was deliberate and was not based on a reasonable, or indeed any, misunderstanding of the law. The admission of this evidence would bring the administration of justice into disrepute given the nature of the evidence, the gravity of the Charter infringement and the fact the offence with which the appellant was charged did not fall into the more serious category. To extend the principle in Duarte to this case is to ignore completely the words "having regard to all the circumstances" in s. 24(2).
Cases Cited
By La Forest J.
Considered: R. v. Duarte, [1990] 1 S.C.R. 30; referred to: Olmstead v. United States, 277 U.S. 438 (1928); Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Rao (1984), 12 C.C.C. (3d) 97, leave to appeal refused, [1984] 2 S.C.R. ix; Stoner v. California, 376 U.S. 483 (1964); United States v. Agapito, 620 F.2d 324 (2d Cir. 1980); People v. Teicher, 395 N.Y.S.2d 587 (S.C. N.Y.Co. 1977); United States v. Biasucci, 786 F.2d 504 (2d Cir. 1986); R. v. Biasi (1981), 66 C.C.C. (2d) 566; Re Banque Royale du Canada and The Queen (1985), 18 C.C.C. (3d) 98, leave to appeal refused [sub nom. Procureur général du Québec c. Banque royale du Canada], [1985] 1 S.C.R. xii; R. v. Landry, [1986] 1 S.C.R. 145; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48, leave to appeal refused, [1986] 1 S.C.R. ix.
By Lamer C.J.
Referred to: R. v. Duarte, [1990] 1 S.C.R. 30.
By Wilson J. (dissenting)
R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Duguay, [1989] 1 S.C.R. 93; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Jacoy, [1988] 2 S.C.R. 548; R. v. Ross, [1989] 1 S.C.R. 3.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8, 9, 10(b), 24(2).
Criminal Code, R.S.C. 1970, c. C-34, s. 178.13(2)(c) [ad. S.C. 1973-74, c. 50, s. 2; am. S.C. 1976-77, c. 53, s. 9], (d) [ad. S.C. 1973-74, c. 50, s. 2] (now R.S.C., 1985, c. C‑46, s. 186(4)(c), (d)).
Authors Cited
Amsterdam, Anthony G. "Perspectives On The Fourth Amendment" (1974), 58 Minn. L. Rev. 349.
APPEAL from a judgment of the Ontario Court of Appeal (1987), 19 O.A.C. 365, 34 C.C.C. (3d) 51, 56 C.R. (3d) 352, setting aside the accused's acquittal by Paris Prov. Ct. J. on a charge of keeping a common gaming house and ordering a new trial. Appeal dismissed, Wilson J. dissenting.
Alan D. Gold and Aimée Gauthier, for the appellant.
Casey Hill and Susan Chapman, for the respondent.
R. W. Hubbard, for the intervener the Attorney General of Canada.
Jack Watson, for the intervener the Attorney General for Alberta.
//La Forest J.//
The judgment of Dickson C.J. and La Forest, L'Heureux‑Dubé and Sopinka JJ. was delivered by
LA FOREST J. -- This appeal is concerned with the protection afforded by s. 8 of the Canadian Charter of Rights and Freedoms against the surreptitious video recording of hotel rooms by the police in the absence of judicial authorization.
Facts
During the summer of 1984 the Toronto Police commenced an investigation aimed at determining the location of "floating" gaming houses frequented by gamblers of Oriental extraction. As part of this investigation, police officers attended at various downtown hotels and asked the security officers in those establishments to inform them of "anything unusual as to Orientals attending hotels".
Some time after this request, in September of the same year, the security staff at a major downtown hotel contacted the police with information relating to the possible use of their premises for illegal gaming. On September 17, the officers in charge of the gambling investigation went to the hotel and attended at a recently vacated room. There the officers found that the occupants of the room had rearranged the furniture in order to form a long table suitable for gambling. In addition, on searching the garbage the occupants had left behind, the police found many slips of paper bearing Chinese characters. The slips bore the address and number of the hotel room, and the chief investigating officer was able to identify these notices as similar to some which he knew were distributed to potential Oriental gamblers in various restaurants in Toronto's Chinatown area.
The police checked the hotel register and discovered that the appellant, Santiago Wong, had booked this room for the 19th and 20th of the same month. On the basis of their findings of the 17th, the police concluded that the room booked by the appellant might be used for illegal gambling. After determining that it would not be feasible to see into the room from the roof of the other wing of the hotel, the officers in charge of the investigation concluded that only video surveillance would enable them to further their investigation by actually monitoring what transpired in the room booked by the appellant. Notably, the police rejected the idea of employing undercover officers. On the basis of past experience, they were certain that the gaming would be conducted behind locked doors, by and for Orientals alone. Since the identity of Oriental police officers was well known in the community, the investigating officers concluded it would be virtually impossible to infiltrate the gambling sessions with undercover operators.
Once it was determined that video surveillance was the only feasible way of monitoring what went on in the room, the officers contacted the Metro Police Intelligence Branch and a Crown Counsel to discuss the possibility of obtaining a warrant. These discussions left the police officers with the impression that it would not be possible to obtain judicial authorization to conduct the video surveillance. The investigators therefore decided to proceed without this authorization, and on September 19 the police installed a video camera in the drapery valence of the room that was registered to Mr. Wong. The camera had a lens about the size of the lead of a pencil and was attached to simultaneous recording equipment which the police monitored from an adjacent hotel room. The police installed this equipment with the permission and co‑operation of the hotel management.
The police monitored the activities in the rooms on five separate occasions. These observations left no doubt that illegal gambling sessions were being held in the hotel suite. This surveillance culminated in a raid in the early morning hours of October 1, 1984. The police entered the room with a key provided by management and found a large group of Oriental males in the suite. A search of these persons revealed numerous slips of the type seized in the initial search of September 17. The appellant was found to be in possession of profit lists, while debt lists were seized from some of the other occupants of the room. The police were also able to seize gambling paraphernalia and a large amount of money found lying on the gaming table.
The appellant and ten other accused were later charged with the offence of keeping a common gaming house. At trial, all the accused pleaded not guilty. On September 11, 1985, the trial judge dismissed the charges against all those concerned. He held the video surveillance of the accused to be a violation of s. 8 of the Charter, and excluded the evidence thereby obtained under s. 24(2) of the Charter. On March 20, 1987, the Crown's appeal to the Court of Appeal against the acquittal of the appellant and the other accused was allowed, and a new trial ordered ((1987), 19 O.A.C. 365). In a judgment to which I shall later have occasion to refer, Cory J.A., as he then was, writing for a unanimous court, held that surreptitious video surveillance would constitute a search and seizure within the meaning of s. 8 of the Charter in circumstances where the person observed by the camera had a reasonable expectation of privacy. However, he went on to conclude that on the facts of this case the appellant could not be said to have had a reasonable expectation of privacy. Accordingly, the Court of Appeal held, s. 8 of the Charter had no application and the evidence of the video surveillance was therefore admissible.
The Issues
I note at the outset that the pronouncements of this Court in R. v. Duarte, [1990] 1 S.C.R. 30, make it superfluous to enter into a lengthy discussion as to whether surreptitious video surveillance by agents of the state constitutes a search and seizure within the meaning of s. 8 of the Charter. In Duarte, this Court held that unauthorized electronic audio surveillance violates s. 8 of the Charter. It would be wrong to limit the implications of that decision to that particular technology. Rather what the Court said in Duarte must be held to embrace all existing means by which the agencies of the state can electronically intrude on the privacy of the individual, and any means which technology places at the disposal of law enforcement authorities in the future.
In his prophetic dissent in Olmstead v. United States, 277 U.S. 438 (1928), Brandeis J. foresaw that the progress of science in furnishing government with the means of "espionage" could not be expected to stop with wiretapping. One may speculate, however, that even Brandeis J. could not have envisaged the vertiginous pace at which eavesdropping technology would develop in the latter half of this century. But in concluding, at p. 472, that clauses that guarantee to the individual protection against specific abuses of power must have a capacity of adaptation to a changing world, Brandeis J.'s words have lost none of their relevance. They find an echo in the pronouncement of Dickson C.J. observed in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 155, that constitutional provisions aimed at protecting individual rights and liberties must be interpreted as providing a continuing framework for the legitimate exercise of government power. These observations remind one that the broad and general right to be secure from unreasonable search and seizure guaranteed by s. 8 is meant to keep pace with technological development, and, accordingly, to ensure that we are ever protected against unauthorized intrusions upon our privacy by the agents of the state, whatever technical form the means of invasion may take.
Reasonable Expectations of Privacy
I noted above that the Court of Appeal, while not taking issue with the proposition that video surveillance could, in appropriate circumstances, constitute a search within the meaning of s. 8 of the Charter, held that that result would only follow where the person who was the object of the intrusion had a reasonable expectation of privacy. On the facts of this case, the court concluded that there was no such expectation. It is on this question as to what constitutes a reasonable expectation of privacy that I part company with the Court of Appeal for I am unable to reconcile its conclusion on this point with the approach since taken by this Court in R. v. Duarte, supra.
In Duarte, this Court overturned the conclusion of the Court of Appeal that the risk that our interlocutor will electronically record our words is but a variant of the risk of having that person disclose our words to another. This Court accordingly rejected the notion that "risk analysis" provides an appropriate means of assessing whether a person who was the object of an electronic search had a reasonable expectation of privacy in the circumstances. As explained at p. 48 of that decision, this rejection rested on the conclusion that privacy would be inadequately protected if an assessment of the reasonableness of a given expectation of privacy were made to rest on a consideration whether the person concerned had courted the risk of electronic surveillance. In view of the advanced state of surveillance technology, this would be to adopt a meaningless standard, for, in the final analysis, the technical resources which agents of the state have at their disposal ensure that we now run the risk of having our words recorded virtually every time we speak to another human being. Professor Amsterdam, in his seminal comment on the Fourth Amendment to the American Constitution, drives the point home with a striking image when he suggests that in view of the sophistication of modern eavesdropping technology we can only be sure of being free from surveillance today if we retire to our basements, cloak our windows, turn out the lights and remain absolutely quiet; see "Perspectives On The Fourth Amendment" (1974), 58 Minn. L. Rev. 349, at p. 402.
In the place of "risk analysis", R. v. Duarte approached the problem of determining whether a person had a reasonable expectation of privacy in given circumstances by attempting to assess whether, by the standards of privacy that persons can expect to enjoy in a free and democratic society, the agents of the state were bound to conform to the requirements of the Charter when effecting the intrusion in question. This involves asking whether the persons whose privacy was intruded upon could legitimately claim that in the circumstances it should not have been open to the agents of the state to act as they did without prior judicial authorization. To borrow from Professor Amsterdam's reflections, supra, at p. 403, the adoption of this standard invites the courts to assess whether giving their sanction to the particular form of unauthorized surveillance in question would see the amount of privacy and freedom remaining to citizens diminished to a compass inconsistent with the aims of a free and open society.
When the intrusion takes the form of unauthorized and surreptitious electronic audio surveillance, R. v. Duarte makes it clear that to sanction such an intrusion would see our privacy diminished in just such an unacceptable manner. While there are societies in which persons have learned, to their cost, to expect that a microphone may be hidden in every wall, it is the hallmark of a society such as ours that its members hold to the belief that they are free to go about their daily business without running the risk that their words will be recorded at the sole discretion of agents of the state.
Accordingly, by the standards of privacy that prevail in a free and open society such as our own, Duarte was entitled to claim that judicially unauthorized participant surveillance did offend against his reasonable expectations of privacy when he engaged in what he had every reason to believe was an ordinary private conversation. To have held otherwise would have been tantamount to exposing any member of society whom the state might choose to target to the same risk of having his or her nominally private conversation become the subject of surreptitious recordings. As explained in R. v. Duarte, supra, at p. 48, on the logic of the Court of Appeal, despite the fact that we would have no way of knowing whether a given interlocutor was in fact a government informer bent on recording our words, we would be automatically presumed to waive any claim to be protected against this intrusion on our right to privacy if it should in fact eventuate that our words were being recorded. Such a result would fatally undermine the very tenet of a free and open society that I have just commented on, i.e., the notion that in a society such as ours the state cannot make it its business to record nominally private conversations at its sole discretion.
I am firmly of the view that if a free and open society cannot brook the prospect that the agents of the state should, in the absence of judicial authorization, enjoy the right to record the words of whomever they choose, it is equally inconceivable that the state should have unrestricted discretion to target whomever it wishes for surreptitious video surveillance. George Orwell in his classic dystopian novel 1984 paints a grim picture of a society whose citizens had every reason to expect that their every movement was subject to electronic video surveillance. The contrast with the expectations of privacy in a free society such as our own could not be more striking. The notion that the agencies of the state should be at liberty to train hidden cameras on members of society wherever and whenever they wish is fundamentally irreconcilable with what we perceive to be acceptable behaviour on the part of government. As in the case of audio surveillance, to permit unrestricted video surveillance by agents of the state would seriously diminish the degree of privacy we can reasonably expect to enjoy in a free society. There are, as R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 428‑29, tells us, situations and places which invite special sensitivity to the need for human privacy. Moreover, as Duarte indicates, we must always be alert to the fact that modern methods of electronic surveillance have the potential, if uncontrolled, to annihilate privacy.
R. v. Duarte was predicated on the notion that there exists a crucial distinction between exposing ourselves to the risk that others will overhear our words, and the much more pernicious risk that a permanent electronic recording will be made of our words at the sole discretion of the state. Transposing to the technology in question here, it must follow that there is an important difference between the risk that our activities may be observed by other persons, and the risk that agents of the state, in the absence of prior authorization, will permanently record those activities on videotape, a distinction that may in certain circumstances have constitutional implications. To fail to recognize this distinction is to blind oneself to the fact that the threat to privacy inherent in subjecting ourselves to the ordinary observations of others pales by comparison with the threat to privacy posed by allowing the state to make permanent electronic records of our words or activities. It is thus an important factor in considering whether there has been a breach of a reasonable expectation of privacy in given circumstances.
The Applicability of s. 8 of the Charter on the Facts of this Case
I turn from these general observations to the question whether, on the facts of this case, the appellant could be said to have had a reasonable expectation of privacy. The Court of Appeal, after stating, by way of an initial premise, that a person attending a function to which the general public has received an open invitation can have no interest in "being left alone", went on to draw the following conclusions from the facts of this case, at p. 373:
None of the respondents testified that they had a subjective expectation of privacy and it is difficult to believe that they could give such evidence. It may well be that they were in the same room with strangers. The occupants' only common interest was to gamble illegally for high stakes. All but Santiago Wong were no more than casual visitors to the rooms with no basis for challenging the legality of the search. Neither is it possible that Santiago Wong had any reasonable expectation of privacy. He was booking the room regularly and it was clear from police observation that the room had been used for gambling on other occasions. Wong had invited and accepted so many people into the room that there could not have been any reasonable expectation of privacy by anyone in the room, least of all Santiago Wong who benefited by the presence of the others.
Video surveillance of persons in a hotel room could in certain circumstances constitute a search of the most intrusive kind. However, in this case, as there was no reasonable expectation of privacy, s. 8 of the Charter cannot have any application.
I think, with respect, that the conclusions of the Court of Appeal cannot be reconciled with the implications of this Court's subsequent decision in R. v. Duarte. The Court of Appeal has, in effect, applied a variant of the risk analysis rejected by this Court in that case, for it has chosen to rest its conclusion on the notion that the appellant, by courting observation by the other persons in the room, has effectively relinquished any right to maintain a reasonable expectation of freedom from the much more intrusive invasion of privacy constituted by surreptitious video surveillance on the part of the state.
Moreover, it is clear from the excerpt cited above that the Court of Appeal, in assessing the constitutionality of the search, has allowed itself to be influenced by the fact that the appellant was carrying on illegal activities. By way of expansion on my earlier references to Duarte, I would note that that decision places considerable emphasis on the fact that the answer to the question whether persons who were the object of an electronic search had a reasonable expectation of privacy cannot be made to depend on whether or not those persons were engaged in illegal activities; see pp. 51-52. If reliance were to be placed on such ex post facto reasoning, and the courts to conclude that persons who were the subject of an electronic search could not have had a reasonable expectation of privacy because the search revealed that they were in fact performing a criminal act, the result would inevitably be to adopt a system of subsequent validation for searches. Yet it was precisely to guard against this possibility that this Court in Hunter v. Southam Inc., supra, at p. 160, stressed that prior authorization, wherever feasible, was a necessary pre-condition for a valid search and seizure. As noted in R. v. Dyment, supra, at p. 430, this is inherent in the notion of being secure against unreasonable searches and seizures.
Accordingly, it follows logically from what was held in R. v. Duarte that it would be an error to suppose that the question that must be asked in these circumstances is whether persons who engage in illegal activity behind the locked door of a hotel room have a reasonable expectation of privacy. Rather, the question must be framed in broad and neutral terms so as to become whether in a society such as ours persons who retire to a hotel room and close the door behind them have a reasonable expectation of privacy.
Viewed in this light, it becomes obvious that the protections of s. 8 of the Charter are meant to shield us from warrantless video surveillance when we occupy hotel rooms. Clearly, our homes are places in which we will be entitled, in virtually all conceivable circumstances, to affirm that unauthorized video surveillance by the state encroaches on a reasonable expectation of privacy. It would be passing strange if the situation should be any different in hotel or motel rooms. Normally, the very reason we rent such rooms is to obtain a private enclave where we may conduct our activities free of uninvited scrutiny. Accordingly, I can see no conceivable reason why we should be shorn of our right to be secure from unreasonable searches in these locations which may be aptly considered to be our homes away from home. Moreover, R. v. Duarte reminds us that unless the question posed in the preceding paragraph is answered in neutral terms as I have suggested, it follows not only that those who engage in illegal activity in their hotel rooms must bear the risk of warrantless video surveillance, but also that all members of society when renting rooms must be prepared to court the risk that agents of the state may choose, at their sole discretion, to subject them to surreptitious surveillance; see again at pp. 51-52.
Nor, with respect, can I attach any importance to the fact that in the circumstances of this case the appellant may have opened his door to strangers, or circulated invitations to the gaming sessions. I am simply unable to discern any logical nexus between these factors, and the conclusion that the police should have been free to videotape the proceedings in the hotel room at their sole discretion. It is safe to presume that a multitude of functions open to invited persons are held every week in hotel rooms across the country. These meetings will attract persons who share a common interest but who will often be strangers to each other. Clearly, persons who attend such meetings cannot expect their presence to go unnoticed by those in attendance. But, by the same token, it is no part of the reasonable expectations of those who hold or attend such gatherings that as a price of doing so they must tacitly consent to allowing agents of the state unfettered discretion to make a permanent electronic recording of the proceedings.
We must be prepared to live with the first risk, but, in a free and open society, need not tolerate the spectre of the second. As I have intimated above, this seminal distinction between what is constitutionally acceptable and unacceptable follows inexorably from the point made in R. v. Duarte that it would be an error to equate the risk of having one's words overheard with the risk of having the state, at its sole discretion, make a permanent electronic recording of those words. At p. 48 of that decision, it was said that these threats to privacy are of a different order of magnitude and involve different risks to the individual and the body public. The same must be true of the risk of being the object of private scrutiny, and the risk of having a permanent electronic recording made of one's presence in a given location at the behest of the state.
I therefore conclude that the Court of Appeal erred when it held that the appellant did not have a reasonable expectation of privacy in the circumstances of this case. Were the reasonableness of unauthorized video surveillance to be gauged by the standard adopted by the Court of Appeal the state would be at liberty to train its hidden cameras on an extremely broad spectrum of the activities engaged in by members of society. In effect, we would be debarred from asserting a reasonable expectation of freedom from clandestine electronic scrutiny on the part of the state at any private function to which members of the public had received an invitation.
Moreover, it is also clear that those ordinary measures which persons in a free and open society believe suffice to shut out uninvited scrutiny would be of no avail if the police (and they would of course be the sole arbiters of the matter) entertained the suspicion that the persons in the location concerned were involved in illegal activity. Here, it must be remembered that while the appellant had rented a room in an establishment to which selected members of the public had access, he had seen to it that activities in the room were conducted behind locked doors and drawn drapes.
In effect, by application of the standard adopted by the Court of Appeal, members of society would be driven back to the confines of their homes if they wished to be sure of being able to escape the risk of unauthorized video surveillance. And even this ultimate refuge could be breached if the police formulated a suspicion with respect to gatherings in the home, for I think it must be conceded that on the reasoning of the Court of Appeal the appellant could have asserted no reasonable expectation of privacy if the gambling sessions had been conducted in his own home.
By way of recapitulation on this important point, I think it can be seen that the approach taken by the Court of Appeal to the question of what constitutes a reasonable expectation of privacy simply cannot be reconciled with the conclusions that emerge from R. v. Duarte. That decision makes it clear that s. 8 of the Charter is meant to protect those expectations on which we rest our belief that our society is one in which we are not exposed to unauthorized clandestine electronic surveillance on the part of the state. I take it to be beyond dispute that just as we hold to the belief that a free and open society is one in which the state is not free to make unauthorized recordings of our conversations, so too it is no less an article of faith in a society that sets a premium on being left alone that its members presume that they are at liberty to go about their daily business without courting the risk that agents of the state will be surreptitiously filming their every movement. By simple analogy with R. v. Duarte, it must follow that unauthorized video surveillance will be found to offend against the reasonable expectations of privacy protected by s. 8 in the circumstances here. Certainly it is inconceivable to me that the police should enjoy the latitude to make surreptitious video recordings that is implicit in the conclusions of the Court of Appeal.
The respondent attempted to distinguish this case from Duarte on the ground that in Duarte, there was a statutory provision prohibiting electronic eavesdropping except as judicially authorized. This argument wholly misunderstands Duarte. It is the Charter, specifically s. 8, that protected the appellant there and it is the Charter that protects the present appellant. It is worth observing that the American legislation, on which the relevant provisions of our Criminal Code are modelled, was devised to meet the standards of the Fourth Amendment of the United States Constitution. The argument thus not only requires us to interpret the Constitution in the light of existing statutes, rather than the reverse; it effectively asks us to read history backwards. As I noted earlier, s. 8 was designed to provide continuing protection against unreasonable search and seizure and to keep pace with emerging technological development.
Nor can I accede to the arguments to the effect that the police, in installing the hidden camera, acted in the exercise of authority derived from their duties at common law. I have grave doubts as to whether the police could point to any common law authority under which they could act as they did. I would draw attention on this point to Martin J.A.'s observation in R. v. Rao (1984), 12 C.C.C. (3d) 97 (Ont. C.A.), at p. 120, (leave to appeal to this Court refused, [1984] 2 S.C.R. ix), that at common law there is no power to search premises without a warrant, except as an incident of a lawful arrest. And for reasons to be developed later, I do not think judicial development of new search powers should be encouraged. Moreover, even if the respondent were to be able to point to common law authority it is clear to me that such authority would not pass muster under the Charter. By way of reiterating the point I made above, R. v. Duarte makes it clear that unauthorized surreptitious electronic surveillance infringes on the right to be free from unreasonable search and seizure as guaranteed by s. 8 of the Charter.
I should perhaps observe that the conclusion I have arrived at is consistent with American experience. The courts there have held that a person who occupies a hotel room has a reasonable expectation of privacy and that the police cannot effect a warrantless search of the room; see Stoner v. California, 376 U.S. 483 (1964). While the courts in that country have been willing to hold that police eavesdropping from an adjoining room of "conversations ... heard by the naked human ear ... unaided by any artificial, mechanical or electronic device" does not violate the Fourth Amendment, they clearly view electronic eavesdropping as qualitatively different; see United States v. Agapito, 620 F.2d 324 (2d Cir. 1980), at p. 330. Similarly, video surveillance of such areas has been held to constitute a search, and so requires a warrant and such warrant must meet stringent standards borrowed from those required for electronic eavesdropping; see People v. Teicher, 395 N.Y.S.2d 587 (S.C. N.Y.Co. 1977); United States v. Biasucci, 786 F.2d 504 (2d Cir. 1986).
Can a Warrant Be Obtained to Permit Video Surveillance
Parliament has not yet seen fit to legislate in the matter of video surveillance, and I turn next to a consideration of the question whether, despite this fact, the police might nevertheless have obtained judicial authorization for their investigation. I will deal first with the respondent's submission that, in the absence of legislation specifically authorizing video surveillance, it might have been open to the police to obtain a warrant under Part IV.1 of the Criminal Code, R.S.C. 1970, c. C-34 [ad. S.C. 1973-74, c. 50] which governs the interception of oral communications.
The respondent advanced the hypothesis that video surveillance might have been authorized as an incident to an authorization issued pursuant to Part IV.1 of the Code. On this view of the matter, a judge, upon issuing an authorization for audio surveillance could supplement the authorization with an order for video surveillance. The respondent submits that this result can be made to rest on a creative interpretation of s. 178.13(2)(c), (d) of the Code (now R.S.C., 1985, c. C-46, s. 186). That section provides:
178.13 . . .
(2) An authorization shall
. . .
(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.... [Emphasis added.]
Like the Court of Appeal, I am of the opinion that this submission is without merit. In my respectful view, it would be a very grave error if the provisions of Part IV.1 of the Code were to be interpreted in this manner; see also R. v. Biasi (1981), 66 C.C.C. (2d) 566 (B.C.S.C.). I should observe that the courts in the United States have also refused to hold that the similar provisions in that country extend to electronic video surveillance; see United States v. Biasucci, supra.
I am aware that courts in the United States have held that either under general rules governing a court's power to issue warrants, or pursuant to the court's inherent jurisdiction, they are authorized to issue a warrant and to attach to it the stringent conditions required by the Fourth Amendment; see Biasucci and People v. Teicher, supra. But, as the Court of Appeal decision and Biasi have shown, our courts have studiously refrained from following such a course. The common law powers of search were extremely narrow, and the courts have left it to Parliament to extend them where need be; see R. v. Rao, supra. As Kaufman J.A., speaking for the Quebec Court of Appeal, has stated on this point in Re Banque Royale du Canada and The Queen (1985), 18 C.C.C. (3d) 98, at p. 101, leave to appeal to this Court refused [sub nom. Procureur général du Québec c. Banque royale du Canada], [1985] 1 S.C.R. xii:
The law may well be unsatisfactory, but that is not for us to say, nor, as the trial judge noted, is it for the courts to fill in lacunae, however desirable such a course may seem. That must be left to the legislator.
This is wholly consistent with my earlier observations in R. v. Landry, [1986] 1 S.C.R. 145, at p. 187, and R. v. Bernard, [1988] 2 S.C.R. 833, at p. 891, as to what I perceive to be the respective roles of the courts and Parliament when Charter rights and freedoms are at issue. As I stated there, it does not sit well for the courts, as the protectors of our fundamental rights, to widen the possibility of encroachments on these personal liberties. It falls to Parliament to make incursions on fundamental rights if it is of the view that they are needed for the protection of the public in a properly balanced system of criminal justice.
Part IV.1 of the Code is designed to set strict limits on the ability of the agents of the state to intercept private oral communications. It does not speak to the very different, and I might add, more pernicious threat to privacy constituted by surreptitious video surveillance. On my view of the matter, the courts would be forgetting their role as guardians of our fundamental liberties if they were to usurp the role of Parliament and purport to give their sanction to video surveillance by adapting for that purpose a code of procedure dealing with an altogether different surveillance technology. It is for Parliament, and Parliament alone, to set out the conditions under which law enforcement agencies may employ video surveillance technology in their fight against crime. Moreover, the same holds true for any other technology which the progress of science places at the disposal of the state in the years to come. Until such time as Parliament, in its wisdom, specifically provides for a code of conduct for a particular invasive technology, the courts should forebear from crafting procedures authorizing the deployment of the technology in question. The role of the courts should be limited to assessing the constitutionality of any legislation passed by Parliament which bears on the matter.
Section 24(2) of the Charter
Having reached the conclusion that the videotape evidence was obtained in a manner that infringed a right guaranteed under the Charter, I turn to a consideration of the question whether the evidence should be excluded under s. 24(2) of the Charter because to do so would bring the administration of justice into disrepute.
This question was first discussed in R. v. Collins, [1987] 1 S.C.R. 265. Having first observed that it lies upon the person seeking to exclude evidence to establish that its admission would bring the administration of justice into disrepute, Lamer J., as he then was, set forth, at pp. 283-84, many of the factors to be considered in determining the issues as follows:
-‑what kind of evidence was obtained?
‑-what Charter right was infringed?
-‑was the Charter violation serious or was it of a merely technical nature?
-‑was it deliberate, wilful or flagrant, or was it inadvertent or committed in good faith?
-‑did it occur in circumstances of urgency or necessity?
-‑were there other investigatory techniques available?
-‑ would the evidence have been obtained in any event?
-‑is the offence serious?
-‑is the evidence essential to substantiate the charge?
-‑are other remedies available?
The Court has on several occasions had occasion to elaborate upon these factors, notably in R. v. Simmons, [1988] 2 S.C.R. 495, at pp. 532-36.
Of primary importance in assessing these factors is, of course, the fairness of the process and, in particular, its impact on the fairness of the trial. In the similar case of R. v. Duarte, supra, the Court held that the evidence should not be rejected. The breach infringed the same important right of privacy. And while the offence here is not, in itself, among the more serious in the Code, it is not beside the point that the proceeds from these offences were to be used to foster far more serious crimes.
As in Duarte, the police acted in good faith. They had reasonable and probable cause to believe the offence had been committed, and could have arrested the appellant even without recourse to the videotape evidence. As in Duarte, too, the Charter breach stemmed from an entirely reasonable misunderstanding of the law by the police officers. Also important is the fact that the bulk of the police investigation in this case was completed before this Court released its decision in Hunter v. Southam Inc., supra, and well before electronic surveillance was held to constitute a search; R. v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48 (Ont. C.A.), leave to appeal to this Court refused, [1986] 1 S.C.R. ix. Accordingly, as was the case in R. v. Duarte, it can in fairness be said that the police, in conducting themselves as they did, acted in accordance with what they had good reason to believe was the law, and before they had had a reasonable opportunity to assess the consequences of the Charter on their established practices.
Other factors make the case for the admission of the evidence stronger than Duarte. Here the police sought legal advice about the steps that could be taken to obtain evidence that they could not otherwise obtain. This enquiry indicated that no other investigatory technique was available. As well, the police feared that if they did not act quickly, sufficient evidence could not be obtained, so there was a measure of urgency. As R. v. Simmons, supra, at pp. 533-34, underlines, these are considerations that cannot be ignored.
In these circumstances, I would hold that the appellant has not established that the admission of the evidence would bring the administration of justice into disrepute.
Disposition
I would dismiss the appeal. I would answer the constitutional questions as follows:
1.Does surreptitious video surveillance by the police of a hotel room without prior judicial authorization infringe or deny the rights and freedoms guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms?
Yes.
2.If surreptitious video surveillance by the police of a hotel room without prior judicial authorization does infringe or deny the rights and freedoms guaranteed by s. 8 of the Charter, is it justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982?
No.
3.If the answer to question 1 is "yes" and the answer to question 2 is "no", would the admission into evidence of the videotapes bring the administration of justice into disrepute under s. 24(2) of the Charter?
No.
//Lamer C.J.//
The reasons of Lamer C.J. and McLachlin J. were delivered by
LAMER C.J. -- I have had the advantage of reading the reasons of my colleague, Justice La Forest, and while I concur in his disposition of this case, I have come to this conclusion by a different route. Accordingly, I find it necessary to set out below my reasons for dismissing this appeal.
In R. v. Duarte, [1990] 1 S.C.R. 30, this Court was called upon to interpret the protection afforded to persons by s. 8 of the Canadian Charter of Rights and Freedoms against surreptitious electronic surveillance conducted by the agents of the State. It was decided that not every unauthorized electronic audio surveillance carried out by the agents of the state violates s. 8 of the Charter. Duarte concerned the surreptitious audio recording by an agent of the state of a private communication and any interpretation of the case must, in my view, recognize that fact. Indeed, in Duarte the Crown had conceded that the interception of private communications constituted a search under s. 8. Thus, Duarte stands for the proposition that the recording of a private communication, without the consent of all the parties thereto, constitutes a search for the purpose of s. 8. Such a search may be reasonable only where prior judicial authorization has been obtained.
In the case at bar, my colleague does not dispute the statement of the Court of Appeal that video surveillance would constitute a search under s. 8 only where the target had a reasonable expectation of privacy. He differs from the Court of Appeal in that he concludes that the accused, in the circumstances of this case, had a reasonable expectation of privacy. In his view, the issue of whether an individual had a reasonable expectation of privacy in the circumstances involves the question of whether, by the standards of privacy that persons can expect to enjoy in a free and democratic society, it should have been open to the agents of the state to act as they did without prior judicial authorization. His answer to this question in this case is that the unauthorized surreptitious video surveillance by the agents of the state amounted to an invasion of the appellant's reasonable expectation of privacy and thus constituted an unreasonable search and seizure under s. 8.
I agree with my colleague that unauthorized surreptitious electronic surveillance may, in certain circumstances, violate an individual's rights under s. 8. I agree that such surveillance will violate s. 8 where the target of the surveillance has a reasonable expectation of privacy. However, in my view, the consideration of whether an individual has a reasonable expectation of privacy can only be decided within the particular factual context of the surveillance, not by reference to a general notion of privacy in a free and democratic society which an individual enjoys at all times. A person has the right, under s. 8, to be free from unauthorized surreptitious electronic surveillance where that person has a reasonable expectation that the agents of the state will not be watching or recording private activity nor monitoring or recording private conversations. Whether such an expectation is reasonable will depend on the particular circumstances; a person does not necessarily enjoy this right in all circumstances. It is sufficient to decide this case by considering whether the appellant had a reasonable expectation of privacy in this hotel room which had been effectively converted into a public gaming house. It is not necessary to decide whether the appellant would have such an expectation in all circumstances according to a general notion of privacy. The latitude of the concept of a reasonable expectation of privacy will be determined by the factual situations which arise in future cases.
I agree with La Forest J. that a person who retires to a hotel room and closes the door behind him or her will normally have a reasonable expectation of privacy. The nature of the place in which the surveillance occurs will always be an important factor to consider in determining whether the target has a reasonable expectation of privacy in the circumstances. It is not, however, determinative. A person who is situated in what would normally be characterized as a public place (a restaurant, for example) may well have a reasonable expectation of privacy. For example, he or she would not reasonably expect that the police will surreptitiously monitor and record the private conversation taking place at his or her table. By the same token, that which would normally be characterized as a private place (a personal residence, for example) may well, by the manner in which it is utilized, become a place in which one does not have a reasonable expectation of privacy.
The expectation of privacy which normally exists with respect to a hotel room will not be circumscribed by the fact that illegal activity may be taking place in the room, nor will it necessarily be waived by the mere fact that others have been invited to the room. However, in some cases, additional facts may be present which will indicate that the target does not have a reasonable expectation of privacy.
In the case at bar, the appellant was situated in a hotel room. In most cases, a hotel room is a location in which one has a reasonable expectation of privacy. However, in this case the appellant had, indiscriminately, extended invitations to the gaming session which was to take place in the hotel room. He had passed out numerous notices in public restaurants and bars, thereby inviting the public into the hotel room. It is impossible to conclude that a reasonable person, in the position of the appellant, would expect privacy in these circumstances. A reasonable person would know that when such an invitation is extended to the public at large, one can no longer expect that strangers, including the police, will not be present in the room. In this case, the police effected their presence in the room via the video camera which was installed in the drapery valence.
I do not wish to be taken as adopting the "risk analysis" which this Court rejected in Duarte, supra. I am not equating the risk that strangers will be in the hotel room with the risk that the police will be electronically recording the activity in the hotel room. The issue is not so much concerned with risk as it is with reasonable expectations. Here it was not reasonable for the appellant to expect that strangers, including the police, would not be present in the room.
The appellant may well have had a reasonable expectation of privacy in the hotel room had he extended a few invitations to particular individuals. However, that was not the case here. In my view, and with respect for other views, the appellant had no reasonable expectation of privacy in these circumstances; as a result, no search took place within the meaning of s. 8.
Having concluded that no search took place under s. 8, it is unnecessary to consider the reasonableness of the search. The videotape evidence should have been admitted at trial. I would dismiss the appeal and order a new trial. I would answer the constitutional questions as follows:
1.Does surreptitious video surveillance by the police of a hotel room without prior judicial authorization infringe or deny the rights and freedoms guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms?
Yes, if the target had a reasonable expectation of privacy in the particular circumstances.
2.If surreptitious video surveillance by the police of a hotel room without prior judicial authorization does infringe or deny the rights and freedoms guaranteed by s. 8 of the Charter, is it justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982?
It is not necessary to answer this question.
3.If the answer to question 1 is "yes" and the answer to question 2 is "no", would the admission into evidence of the videotapes bring the administration of justice into disrepute under s. 24(2) of the Charter?
It is not necessary to answer this question.
//Wilson J.//
The following are the reasons delivered by
WILSON J. (dissenting) -- I have had the benefit of the reasons of my colleagues Chief Justice Lamer and Justice La Forest in this appeal and would respectfully agree with the reasons of La Forest J. except on the issue of the admission of the videotape evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms.
1. Admissibility of the Evidence
Section 24(2) provides:
24. . . .
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
It is suggested that the admissibility issue raised in this appeal is governed by R. v. Duarte, [1990] 1 S.C.R. 30, in which electronic surveillance evidence was held admissible under s. 24(2) on the ground that "the breach was in no way deliberate, wilful or flagrant" and that the police acted in good faith "in accordance with what they had good reason to believe was the law -- as it had been for many years before the advent of the Charter." The conduct of the police in that case was further justified on the basis that, if they had understood the law correctly, they would have obtained an authorization under the Criminal Code, R.S.C. 1970, c. C-34. Their conduct was accordingly "an entirely reasonable misunderstanding of the law by the police officers who would otherwise have obtained the necessary evidence to convict the accused in any event".
In my view, it is unwise to rely on precedent for an answer to the question whether or not the admission of evidence obtained in violation of the Charter in a particular case would bring the administration of justice into disrepute. The language of s. 24(2) stipulates that the admissibility of the evidence is to be determined in "all the circumstances". The presence of these words in the section suggests to me that, in determining whether evidence obtained in violation of Charter rights should nonetheless be admitted, the context is vital. Hence, while the fact that the police acted "in good faith" may be virtually determinative in one case, in another it may be of little consequence.
That determinations made under s. 24(2) turn entirely on the particular circumstances of each case was underscored by this Court in R. v. Duguay, [1989] 1 S.C.R. 93. In that case it was conceded that the accused's rights under s. 9 of the Charter to be free from arbitrary detention were violated and thus the only issue was the admissibility of certain statements made by the accused while detained in contravention of their Charter rights. The majority of the Court (Dickson C.J. and McIntyre, Lamer, Wilson, La Forest and Sopinka JJ.) dismissed the appeal in brief reasons, the gist of which appears at p. 98:
It is not the proper function of this Court, though it has jurisdiction to do so, absent some apparent error as to the applicable principles or rules of law, or absent a finding that is unreasonable, to review findings of the courts below under s. 24(2) of the Charter and substitute its opinion of the matter. . . .
This deferential approach to the review of lower court decisions under s. 24(2) is appropriate for the very reason that the issue of admissibility is so fact specific.
To repeat then, the context is vital to the issue of admissibility and I see a very different context in this case from that in Duarte. I would like to touch briefly on what I see as the significant factors bearing on the issue of admissibility in this case.
The approach which this Court has adopted for the determination of the admissibility of evidence was first stated in R. v. Collins, [1987] 1 S.C.R. 265, and summarized in the later case of R. v. Jacoy, [1988] 2 S.C.R. 548, at pp. 558-59:
First, the court must consider whether the admission of evidence will affect the fairness of the trial. If this inquiry is answered affirmatively, "the admission of evidence would tend to bring the administration of justice into disrepute and, subject to a consideration of other factors, the evidence generally should be excluded" (p. 284). One of the factors relevant to this determination is the nature of the evidence; if the evidence is real evidence that existed irrespective of the Charter violation, its admission will rarely render the trial unfair.
The second set of factors concerns the seriousness of the violation. Relevant to this group is whether the violation was committed in good faith, whether it was inadvertent or of a merely technical nature, whether it was motivated by urgency or to prevent the loss of evidence, and whether the evidence could have been obtained without a Charter violation.
Finally, the court must look at factors relating to the effect of excluding the evidence. The administration of justice may be brought into disrepute by excluding evidence essential to substantiate the charge where the breach of the Charter was trivial. While this consideration is particularly important where the offence is serious, if the admission of the evidence would result in an unfair trial, the seriousness of the offence would not render the evidence admissible.
It is these factors that guide the s. 24(2) determination and I propose to deal with each in turn.
Fairness of the Trial
The videotape evidence in this case was brought into existence purely as a result of the violation of s. 8 of the Charter. In this sense it is analogous to a confession and quite different from evidence which has an independent existence apart entirely from the Charter violation. The importance of this distinction was addressed in Collins, supra, and I would respectfully adopt the following passage from the reasons of Lamer J. in that case at p. 284:
The real evidence existed irrespective of the violation of the Charter and its use does not render the trial unfair. However, the situation is very different with respect to cases where, after a violation of the Charter, the accused is conscripted against himself through a confession or other evidence emanating from him. The use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self-incrimination.
Lamer J. did not intend his comments regarding self-incrimination to be confined to confessions. This was made clear by him in the later case of R. v. Ross, [1989] 1 S.C.R. 3, in which the evidence in issue was the identification evidence obtained by the accused's participation in a line-up in violation of his s. 10(b) right. Lamer J. said at p. 16:
Any evidence obtained, after a violation of the Charter, by conscripting the accused against himself through a confession or other evidence emanating from him would tend to render the trial process unfair. In Collins we used the expression "emanating from him" since we were concerned with a statement. But we did not limit the kind of evidence susceptible of rendering the trial process unfair to this kind of evidence. I am of the opinion that the use of any evidence that could not have been obtained but for the participation of the accused in the construction of the evidence for the purposes of the trial would tend to render the trial process unfair.
I believe that fair trial considerations favour the exclusion of the videotape evidence in the instant case.
Seriousness of the Charter Violation
Consideration of the second group of the Collins factors also militates in my view against the admission of the videotape evidence.
The first and perhaps the most important aspect regarding the seriousness of the violation is that in this case the police had resort to a constitutionally suspect method of investigation in the absence of any compelling circumstances. There was no suggestion that the situation was urgent or that there was a risk that the evidence would be lost. The police had approximately two days' advance notice of each gambling session. Despite this, the police resorted to an investigative technique that was legally questionable and highly intrusive. In Collins, Lamer J. recognized that whether resort to questionable techniques was necessary is a factor going to the seriousness of the violation. At page 285 he stated:
I should add that the availability of other investigatory techniques and the fact that the evidence could have been obtained without the violation of the Charter tend to render the Charter violation more serious. We are considering the actual conduct of the authorities and the evidence must not be admitted on the basis that they could have proceeded otherwise and obtained the evidence properly. In fact, their failure to proceed properly when that option was open to them tends to indicate a blatant disregard for the Charter, which is a factor supporting the exclusion of the evidence.
Were proper investigative means available to the police in this case? This question should be approached from a practical point of view taking into account the progress of the investigation and the options which reasonably presented themselves to the police at the relevant time.
The evidence reveals that the police first learned of the existence of these "floating" gambling houses through an informant. The informant notified them that the games were being held in hotel rooms in Toronto and that invitations to these gambling sessions were handed out in the form of slips at various restaurants. Upon receiving this information, the police canvassed the downtown hotels and, with the assistance of the hotel management, identified the Hilton as the location at which the games were held, the identity of the person booking the room and the dates on which the gambling was to take place.
Armed with this information the police entered the room booked by the accused the previous evening and observed and confiscated a number of items (including the above‑mentioned invitations) indicating that gambling activities had indeed taken place. The police then checked to see if there was any way of seeing from the outside what was going on in the room and concluded that there was not. It was at that point, during the initial visit to the scene of the suspected crime, that the police decided to use video surveillance.
What alternative investigative techniques were reasonably available to the police? They might, it seems to me, have had resort to an informer. Apparently an informer had provided them with the vital information they needed to proceed with the investigation in the first place. No explanation was offered as to why this person was not approached for further assistance.
It also seems apparent to me that the use of undercover officers might have proved a fruitful way of investigating the offence. The explanation for not using an undercover officer was that they had so few Oriental police constables on staff that those they had would have been readily recognized. Indeed, the evidence reveals that at the relevant time there were only eleven officers of Oriental extraction on the entire Metropolitan Toronto Police Force, a figure which verges on the astounding. Can one really rely on one's own discriminatory hiring practices as a justification for violating the rights of visible minorities? The idea somehow seems offensive. I do not doubt that this was the reason for not using a plain clothes officer; I am just of the view that it should not receive judicial condonation.
Finally, and I think most importantly, no attempt was made to obtain an authorization for electronic surveillance under Part IV.1 of the Criminal Code [ad. S.C. 1973-74, c. 50] (now Part VI of the Criminal Code, R.S.C., 1985, c. C-46) an alternative which was obviously available in the circumstances. As I have indicated, it would appear that the thought did not, at least initially, cross the investigating officers' minds. Constable Yates, the officer in charge of the investigation, testified as follows:
Police Constable Harker and I looked into the suite and observed whether a game had been played, and it was decided then to install a camera and monitor the activities. [Emphasis added.]
The police did not appear to be seriously concerned about the propriety of this course of action. Instead, they seem to have firmly settled upon the idea of video taping the activities in the room and were not to be swayed from this approach. The following exchange took place between counsel for the defence and Police Constable Yates:
Q:Did you ever make any effort to consult with the crown attorney before installing the video equipment?
A:I may have done. I don't recall. Upon consulting with Police Constable Harker of the Intelligence Bureau, I believe he told me a warrant was not necessary, or you couldn't get one at that time if it was just for a video and there was no audio involved.
Q:So it was a fellow police officer who indicated to you that it was okay?
A:I believe I spoke with Mr. Atkinson [the Crown Attorney].
Q:Are you sure about that?
A:Pretty sure.
I am not persuaded that the police gave proper consideration to the question whether they were acting within the bounds of the law in installing the video equipment. Indeed they sought to avoid the regular procedures contemplated for lawful and constitutional searches for entirely unacceptable reasons. Later in his cross-examination, which I quote at some length, Officer Yates testified:
Q:Was there ever any thought given to applying to a Supreme Court Judge through a designated agent to put a bug -- that's an electrical eavesdropper -- into the room?
A:We did talk about it, Mr. Dempsey, but we decided it was not necessary for the purposes of the investigation.
Q:But have you ever been part of an operation or investigation which is electronic surveillance?
A:Yes, I have.
Q:So you're aware of the procedure set out in the Criminal Code for designated ... applying to a Supreme Court judge for an order granting authorization?
A:Yes, I am.
Q:And when you say you just decided ... what did you say, Officer, "We didn't need to ..." or ...?
A:We didn't ...
Q:"Didn't think we had to"?
A:We felt it was not necessary for the purposes of what is relatively a minor investigation, considering ...
Q:I hope you'll maintain that view.
A:... considering the cost factor.
Q:Well, the cost factor of putting a bug in a room would have been just about, say, all of this apparatus, would you agree?
A:No, sir.
Q:You [are] talking about the cost of doing it or the cost of transcribing and preparing for trial?
A:The cost of making an application through a crown attorney.
Surely it must have struck the police that the detailed provisions contained in Part IV.1 of the Criminal Code are there for a reason, i.e., to protect the privacy of individuals against encroachment by the state through the use of powerful and sophisticated technology, and not merely to hamper the legitimate aims of law enforcement. Just as surely it must have been obvious to them that there would be little point in Parliament's detailing such procedures if they could be so easily avoided. In my view, the police could and should have sought an authorization for a wiretap. They could then at least have put to the authorizing judge their desire to use video surveillance independent from or in addition to audio surveillance. Their use of video equipment without sound capability seems to me to be a thinly disguised attempt to avoid Part IV.1 of the Code. In the circumstances, there can be no doubt but that the police proceeded in blatant disregard of the accused's Charter rights.
If it is indeed relevant to the admissibility issue as suggested in Duarte (and I am not sure that it is) to consider whether the Charter violation was wilful or not, it seems to me that it clearly was in this case. The evidence discloses that the police had a case against the appellant but that it was a weak one. They admitted that they wanted to get Wong on a bigger charge and that videotaping was the obvious way to do it. In effect, they opted in their zeal to pursue a course which they knew to be suspect. This is a far cry from Duarte. The police conduct in this case was deliberate. It was not based on a reasonable, or indeed any, misunderstanding of the law. There is nothing to suggest that the police would have obtained the evidence in any event. And there is, as already mentioned, the overwhelming reality that no other perfectly lawful investigative techniques were tried and shown to have failed.
Effect on the System
The final set of factors for review in determining whether the evidence should be excluded under s. 24(2) is the effect of exclusion or admission on the repute of the justice system. The seriousness of the offence with which an accused is charged is particularly relevant in this regard. In this case, however, the police themselves, as I have noted above, did not consider the offence to be of a very serious nature. While it was suggested that the operation of gambling houses was sometimes accompanied by violence, no substantial evidence was led on this point. In the circumstances, given the type of evidence at issue in this appeal, the fact that the violation of the accused's Charter rights was serious because it was so unnecessary, and the fact that the offence with which the accused was charged was not in the very serious category, I conclude that the admission of the video tape evidence would tend to bring the administration of justice into repute and that it should be excluded.
With all due respect to those who think otherwise, it seems to me that to extend the principle in Duarte to this case is to completely ignore the words "having regard to all the circumstances" in s. 24(2).
2. Disposition
The trial judge, having excluded the video tape evidence, also found that the evidence obtained in the raid of the hotel room was inadmissible. There was thus insufficient evidence to convict the accused. I see no reason to interfere with that finding. I would therefore allow the appeal and restore the acquittal.
Appeal dismissed, WILSON J. dissenting.
Solicitors for the appellant: Gold & Fuerst, Toronto.
Solicitor for the respondent: The Attorney General for Ontario, Toronto.
Solicitor for the intervener the Attorney General of Canada: The Attorney General of Canada, Ottawa.
Solicitor for the intervener the Attorney General for Alberta: The Attorney General for Alberta, Edmonton.