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Criminal - Interception of Private Communications. R. v. Schlatter
In R. v. Schlatter (Ont CA, 2023) the Court of Appeal illustrates a police undercover agent evidence situation, here with issues of interception of private communications:[33] The conversations were live monitored by officers other than the undercover officers. The conversations were not recorded and no notes were made of the conversations. The officers testified that the conversations were live monitored to protect the undercover officers.
[34] The police did not obtain an authorization under Part VI of the Criminal Code permitting the interception of the appellant’s communications with the undercover officers. Normally, an authorization to intercept those conversations would be required: Criminal Code, s. 184.2(1) [SS: 'Interception with consent']. The police relied on s. 184.1(1) [SS: 'Interception to prevent bodily harm'], which creates an exception to the authorization requirement if, among other things, the police believe, on reasonable grounds, that there is a risk of bodily harm to the undercover officers who are engaged in the communication.
[35] At trial, the defence argued there was no risk of bodily harm to the undercover officers. The appellant and the two officers were each in different cells and the appellant could not possibly gain access to either of the officers. He posed no risk to them. The defence submitted that as the interceptions could not be justified under the terms of s. 184.1(1), an authorization for the interceptions was required. In the absence of any authorization, the interceptions and live monitoring of the conversations were unlawful and a breach of the appellant’s s. 8 rights.
[36] The trial judge disagreed: R. v. Schlatter, 2020 ONSC 402. In the trial judge’s view, a broad interpretation of the bodily harm requirement was warranted. He said, at para. 59:I see no reason to interpret the words “risk of bodily harm” narrowly reaching only physical harm caused by a target. Applying the modern approach to statutory construction, I am firmly of the view that they are broad enough to encompass all risks of bodily harm, including psychological harm, that might arise in an undercover operation. [37] The trial judge went on to hold that, in any event, the undercover officers’ evidence could not be excluded under s. 24(2) of the Charter. He noted that the interceptions made pursuant to s. 184.1(1) were inadmissible under s. 184.2(1). He also noted that the officers testified only about their recollection of the conversations with the appellant. The Crown did not seek to tender any recording of the conversations. Relying on R. v. Fliss, 2002 SCC 16, per Binnie J., at paras. 43-45, the trial judge concluded, that regardless of the legality of the interception of the conversations, the officers were entitled to testify based on their own recollection of the conversations.
[38] While we agree with the trial judge that the phrase “risk of bodily harm” should be given a broad interpretation in s. 184.1(1), we find it unnecessary to decide whether that criterion was met on the evidence adduced in this case.
[39] We agree with the trial judge that there was no basis to exclude the evidence of the officers’ recollection of the conversations under s. 24(2) of the Charter, even if the live monitoring of the conversations could be said to have resulted in a breach of s. 8. The appellant had no reasonable expectation that the persons in the adjoining cell would hold whatever he told them in confidence: see R. v. Lambert, 2023 ONCA 689, at para. 58. The officers’ testimony as to their recollection of the conversations did not breach the appellant’s privacy rights under s. 8 of the Charter.
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