R. v. Duarte [1990] 1 S.C.R. 30: -- Evidence obtained by electronic surveillance conducted without authorization -- Conversation recorded with consent of a party to it -- Recording of conversation entered into evidence -- Evidence obtained as result of breach of Charter inadmissible if administration of justice would be brought into disrepute -- Evidence obtained as result of unintentional Charter breach

Present: Dickson C.J and Lamer, La Forest, L'Heureux-Dubé, Sopinka, Gonthier 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 surveillance conducted without authorization -- Conversation recorded with consent of a party to it -- Recording of conversation entered into evidence -- Whether s. 178.11(2)(a) infringed Charter right to freedom from unreasonable search and seizure -- If so, whether or not it was justified by s. 1 of the Charter -- Whether unauthorized interception by police, even if not a criminal offence, would violate s. 8 of the Charter -- Criminal Code, R.S.C. 1970, c. C-34, ss. 178.11(1), (2)(a), 178.16(1)(a), (b) -- Canadian Charter of Rights and Freedoms, ss. 1, 8.

Constitutional law -- Charter of Rights -- Evidence -- Admissibility -- Evidence obtained as result of breach of Charter inadmissible if administration of justice would be brought into disrepute -- Evidence obtained as result of unintentional Charter breach -- Whether or not admission of evidence would bring administration of justice into disrepute -- Canadian Charter of Rights and Freedoms, s. 24(2).

Evidence -- Admissibility -- Evidence obtained by electronic surveillance conducted without authorization -- Conversation recorded with consent of a party to it -- Recording of conversation entered into evidence -- Whether s. 178.11(2)(a) infringed Charter right to freedom from unreasonable search and seizure -- If so, whether or not it was justified by s. 1 of the Charter -- Whether unauthorized interception by police, even if not a criminal offence, would violate s. 8 of the Charter -- Whether or not admission of evidence, if obtained in breach of Charter, would bring administration of justice into disrepute.

Criminal Law -- Electronic surveillance -- Evidence obtained by electronic surveillance conducted without authorization -- Conversation recorded with consent of a party to it -- Recording of conversation entered into evidence -- Whether s. 178.11(2)(a) infringed Charter right to freedom from unreasonable search and seizure -- If so, whether or not it was justified by s. 1 of the Charter -- Whether unauthorized interception by police, even if not a criminal offence, would violate s. 8 of the Charter.

As part of an investigation into drug trafficking, the police rented an apartment for a police informer who was working with an undercover police officer. The apartment was equipped with audio-visual recording equipment installed in a wall. Prior to the installation of the equipment, the informer and the undercover officer consented to the interception of their conversations, pursuant to the provisions of s. 178.11(2)(a) of the Criminal Code. Appellant discussed a cocaine transaction with the undercover officer and the informer at the apartment. The undercover officer made notes of these and a subsequent conversation based upon a review of the tapes of the conversations.

The appellant was later charged with conspiracy to import a narcotic. At trial, he challenged, on a voir dire, the validity of s. 178.11(2)(a) of the Code which excepts the interception of conversations to which one of the parties consents from the prohibition of unauthorized electronic surveillance. The trial judge held that the actions of the authorities infringed the appellant's rights to be secure from unreasonable search and seizure under s. 8 of the Charter and that the evidence thereby obtained was held not admissible. The Crown appealed to the Ontario Court of Appeal which unanimously allowed the appeal, set aside the acquittal and ordered a new trial.

The constitutional questions stated in this Court queried whether s. 178.11(2)(a) of the Criminal Code infringed or denied the rights and freedoms guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms, and if so, whether or not it was justified by s. 1 of the Charter. During argument, the position was advanced that the constitutionality of s. 178.11(2)(a) might not really arise in that this provision was really an exception to the criminal prohibition against the interception of private communications set forth in s. 178.11(1). Action contemplated by that exception could not be made criminal by a Charter attack on its validity. The real question, then, became whether, even though such action may not constitute a criminal offence, it would nonetheless, when undertaken by an instrumentality of the state, such as the police, violate s. 8 of the Charter. Finally, if this action was indeed an unjustifiable infringement of a Charter right, were communications intercepted as a result of this practice admissible under s. 24(2) of the Charter?

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

Per Dickson C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier and McLachlin JJ.: Surreptitious electronic surveillance of the individual by an agency of the state constitutes an unreasonable search or seizure under s. 8 of the Charter.

The regulation of electronic surveillance is not directed at protecting a person from the risk that someone will repeat his words but from the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit his words. If the state were free, at its sole discretion, to make permanent electronic recordings of a person's private communications, there would be no meaningful residuum to the right to live free from surveillance. A reasonable balance must therefore be struck between the right of individuals to be left alone and the right of the state to intrude on privacy in the furtherance of its responsibilities for law enforcement.

Part IV.1 of the Code strikes an appropriate balance. It meets the high standard of the Charter which guarantees the right to be secure against unreasonable search and seizure by subjecting the power of the state to record private communications to external restraint and requiring that action to be justified by application of an objective criterion. The imposition of an external and objective criterion affords a measure of protection to any citizen whose private communications have been intercepted.

Privacy may be defined as the right of the individual to determine when, how, and to what extent he or she will release personal information. A reasonable expectation of privacy demands that an individual may proceed on the assumption that the state may only violate this right by recording private communications on a clandestine basis when it has established to the satisfaction of a detached judicial officer that an offence has been or is being committed and that interception of private communications stands to afford evidence of the offence.

The assessment of the constitutionality of a search and seizure must focus on its `reasonable' or `unreasonable' impact on the subject of the search or the seizure, and not simply on its rationality in furthering some valid government objective. Applying this standard, if the surreptitious recording of private communications is a search and seizure within the meaning of s. 8 of the Charter, it is because the law recognizes that a person's privacy is intruded on in an unreasonable manner whenever the state, without a prior showing of reasonable cause before a neutral judicial officer, arrogates to itself the right surreptitiously to record communications that the originator expects will not be intercepted by anyone other than the person intended by its originator to receive them.

By contrast to the general provisions on electronic surveillance, the Code places no restriction on participant surveillance, i.e., where one of the parties to the conversation consents. The police may employ this practice in their absolute discretion, against whom they wish and for whatever reasons they wish, without any limit as to place or duration. There is a total absence of prior judicial supervision of this practice.

There is no logical distinction between third party electronic surveillance and participant surveillance. Where persons have reasonable grounds to believe their communications are private communications, the unauthorized surreptitious electronic recording of those communications is an intrusion on a reasonable expectation of privacy. Our perception that we are protected against arbitrary interceptions of private communications ceases to have any real basis once it is accepted that the state is free to record private communications, without constraint, provided only that it has secured the agreement of one of the parties to the communication. The risk of being recorded is not simply a variant of the risk of having one's words disclosed by the person to whom we speak. Surreptitious electronic recording annihilates the very important right to choose the range of our listeners.

Whether or not to allow participant surveillance is a policy decision fraught with the gravest of implications. Countenancing participant surveillance, strikes not only at the expectations of privacy of criminals but also undermines the expectations of privacy of all those who set store on the right to live in reasonable security and freedom from surveillance, be it electronic or otherwise. It has long been recognized that this freedom not to be compelled to share our confidences with others is the very hallmark of a free society. The sole effect of requiring a warrant would be to ensure that police restrict "participant monitoring" to cases where they can show probable cause for a warrant. It would not hamper their ability to combat crime effectively.

Participant surveillance infringes s. 8 of the Charter. It leaves all the conditions under which conversations are intercepted to the sole discretion of the police and therefore cannot be held to meet the definition of "reasonable" in the context of s. 8 of the Charter. Its large-scale use by police could by-pass any judicial consideration of the entire police procedures and make the entire scheme in Part IV.1 of the Code largely irrelevant. Indeed, the constitutionality of Part IV.1 of the Code is predicated on the numerous safeguards designed to prevent the possibility that the police view recourse to electronic surveillance as a routine administrative matter.

The simple fact that the police could employ the same investigatory tool with or without a warrant destroys any argument that participant surveillance can be upheld as a reasonable limit to the right to be secure from unreasonable search and seizure.

Section 178.16(1) of the Code makes certain types of evidence inadmissible. It does not make a communication admissible. If it is admissible, it is by virtue of the common law. The communication would be admissible as relevant evidence at common law, but since it was obtained contrary to s. 8, it will not, by virtue of s. 24(2) of the Charter, be admissible if to do so would bring the administration of justice into disrepute. Many factors can be considered in determining if the administration of justice will be brought into disrepute. Of cardinal importance in assessing these factors is the fairness of the process, and in particular, its impact on the fairness of the trial.

The breach here infringed an important Charter right and the evidence could have been obtained without breaching the Charter. It was, however, in no way deliberate and it stemmed from 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. The admission of this evidence would not bring the administration of the law into disrepute.

Per Lamer J.: The appeal should be dismissed for the reasons of the Ontario Court of Appeal. It was consequently unnecessary to address the issue of whether the evidence should be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms.

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