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R. v. Pleich

Between
Her Majesty the Queen, respondent, and
Frank Peter Pleich, appellant

[1980] O.J. No. 1233

Ontario Supreme Court - Court of Appeal
Toronto, Ontario
Martin, Houlden and Morden JJ.A.

Heard: May 23, 1980.
Judgment: July 30, 1980.
(46 pp.)

Counsel:

Morris Manning, Q.C. and M.L. Solmon, for the appellant.
Ross B. Lundy, Q.C., for the respondent.

The judgment of the Court was delivered by

MORDEN J.A.:- Frank Peter Pleich appeals against his conviction following a trial before a judge and jury on an indictment alleging that he:

between the 1st day of January, 1975, and the 12th day of June, 1975, at the City of Mississauga, in the Judicial District of Peel, unlawfully did have in his possession various antiques of a value exceeding Two Hundred Dollars ($200.00), knowing them to have been obtained by the commission in Canada of an indictable offence, Contrary to Section 312-1(a) of the Criminal Code of Canada.

Part of the Crown's case was based on evidence of eleven intercepted telephone conversations between the appellant and others, and most of the grounds of appeal relate to issues concerned with the admissibility or proper use of this evidence at the trial.

Before referring to the evidence which specifically relates to each ground of appeal, I shall set forth the background facts and the basic competing contentions of the Crown and the appellant at trial.

The appellant, who was thirty-three years of age at the trial in May of 1977, had been an antique and furniture dealer for some fourteen years. His business was mainly at the wholesale level. He lived at 180 Allan Street in Oakville and operated his business at a place called The Barn located at 1675 Lakeshore Boulevard West in Mississauga. It was a large building comprising some 15,000 square feet.

The appellant testified that he bought antiques in bulk and that his practice was to pay for them in cash. His monthly volume of purchases ranged between $75,000 and $125,000. In the trade this would appear to have been a large scale operation. As indicated, most of his customers were other antique dealers or auctioneers.

On June 11, 1975 several police officers, armed with a search warrant, attended at The Barn. A list of items was set forth in the search warrant and the appellant recognized some of them as being on the premises. He took the police to them. These items had been stolen in the first half of 1974 in the course of break-ins at the premises of four antique dealers in various parts of southern Ontario. At the trial this was not disputed by the appellant. The only issue which the jury had to resolve was whether the appellant knew that the items in question had been stolen.

The chief witness for the Crown was one James Armour, who was about forty-six years of age. At the time he gave evidence he was on day parole from Collins Bay Penitentiary. He admitted at the outset of his evidence that he had an extensive criminal record. The details of this record were elicited in the course of his cross-examination.

Armour's evidence was to the effect that he had committed each of the four break-ins, had stolen the antiques in question in the course of the break-ins and, on three occasions, delivered the antiques to the appellant at The Barn. On two occasions the appellant paid him one quarter of the worth of the items which, conveniently, had the prices marked on them. On the other occasion the appellant looked at the items and they agreed on a price. On the one occasion when he did not deliver the stolen goods directly to the appellant he did so indirectly through an antique dealer known to both of them.

He testified that he had communicated with the appellant ahead of time by telephone. He had the appellant's number in two books, one of which he kept at home on an end-table and the other of which he carried in his pocket.

The appellant in his evidence denied receiving the antiques from Armour. He said that he did not know Armour personally but knew of him. Upon his arrest on June 11 he told the police that he had bought the antiques two and a half months earlier, for $12,000, at a house in Toronto. He could not remember the name of the man who sold them to him or the exact address. It was in the Roncesvalles area in Toronto. He tried to locate it with the police on June 12, but was unable to do so.

As I have said, the Crown's case was also based on evidence of eleven intercepted telephone conversations. These had been intercepted pursuant, or purportedly pursuant, to two authorizations. The first one was granted by a judge of the Supreme Court of Ontario on April 18, 1975 for the period from April 18 to May 16 and the second by a Supreme Court judge on May 27, 1975 for the period from May 27 to June 24. The dates of the conversations were May 8, June 5, June 9 (2 conversations), June 10 (3 conversations), June 11, June 12 (2 conversations), and June 15.

I shall not describe in any detail the nature of what was said in these conversations. Before us the respondent referred to passages in six of the conversations. In the charge to the jury the trial judge commented upon parts of five of these six conversations. In some of them the import of what was said is rather plain, unless qualified by circumstances not disclosed in the conversation, while in others it is not clear and, if what is said is to have relevance to the issue which the jury had to consider -- the appellant's knowledge that the antiques in question had been stolen -- a certain degree of interpretation, or inference-drawing, is required.

I shall refer to some of the passages. In the May 8 conversation with one Len Yeck, an antique dealer, the appellant said: "I've got a lot of hot stuff" -- to which Yeck replied "That'll do". The appellant then said: "That's the stuff that came from down your way" -- and, later: "You better not -- you'd be a nervous wreck". The appellant explained the whole of this at trial, saying that Mr. Yeck was an older man who was nervous and that he was joking with him. When the tape is listened to it can be heard that he is laughing.

In the June 5 conversation with a friend, Robert Simper, the appellant said that a person called Freddy was coming to see him and Simper said either "What, to look at that stuff?" or "What, to look at that theft?" It was said that the tape was not clear on the last word. In any event, the appellant said, following the question: "No, well he wants to, but I don't think I'll have it undone by then."

In the June 9 conversation, with Yeck, there were references to "Jimmy's glass" which term the Crown suggested during the cross-examination of the appellant was more or less a code word to describe the glass that was stolen. It is also referred to in a later conversation. On June 9 the appellant said that he "never got rid of any of it."

In the first June 12 conversation, which was soon after the appellant had been released from custody after his arrest, the appellant spoke with Mr. Khan, a dealer. He told him that he had been arrested for possession of stolen property. The Crown suggested that during this conversation, and others after the charges were laid, the appellant was attempting to create favourable evidence for himself. In any event, he said that the glass which he had bought a couple of months ago was apparently all stolen. Mr. Khan said: "You bought that over a year ago, man." The appellant denied this saying that he had "sold that ... This one has been here ... two or three months."

Later on June 12 the appellant spoke to Yeck and told him that he had been arrested and charged and reference was made again to "Jimmy's glass." Yeck said: "Say, nothing to do with Jimmy's glass was there?" The appellant denied knowing "Jimmy", to which Yeck said: "You know what I mean." This drew a further denial from the appellant.

In the June 15 conversation the appellant again spoke to Yeck. He told him: "Everything's cool" -- and, then, "Just don't say nothing on the phone." In his evidence he said that his lawyer had told him not to discuss the case with anyone on the telephone.

In his charge to the jury the trial judge instructed them that, on the evidence, it was open to them to find that Armour was an accomplice of the accused. He then gave an accomplice direction in the course of which he said that "the evidence which emanates from the tapes" was capable of being corroboration.

Before considering the issues which were argued in full before us I shall deal with three grounds of appeal with respect of which we did not call upon counsel for the respondent.

(1.) Reasonable notice was not given under s. 178.16(4) of the Code.

While the evidence on the voir dire could have been clearer, it appears that the notice required by s. 178.23(1) of the Code (the ninety day notice following the period for which the authorization was given or renewed to be given to the person who is the object of the interception) was served on the appellant on January 6, 1976, clearly beyond the times required by that provision (and two notices should have been given under it), and that the notice required by s. 178.16(4) was served on the appellant on January 15, 1976. The trial began on May 16, 1977. At the trial it was submitted that the evidence of the intercepted communications was inadmissible because of failure to comply with s. 178.23(1). This submission failed because non-compliance with s. 178.23(1) has no bearing on the question of admissibility: R. v. Welsh and Iannuzzi (No. 6) (1977), 32 C.C.C. (2d) 363 at p. 370. There was no complaint respecting the notice given under s. 178.16(4), which provision reads:

(4) A private communication that has been lawfully intercepted shall not be received in evidence unless the party intending to adduce it has given to the accused reasonable notice of his intention together with
1. a transcript of the private communication, where it will be adduced in the form of a recording, or a statement setting forth full particulars of the private communication, where evidence of the private communication will be given viva voce; and
2. a statement respecting the time, place and date of the private communication and the parties thereto, if known.

It is now submitted, for the first time, that the s. 178.16(4) notice was not given in accordance with the provision because, although it was served in ample time before the trial, it was not served soon enough after the interceptions to enable the appellant to remember the details of what was said in the conversations.

What is "reasonable notice", of course, depends on the circumstances. The language of s. 178.16(4) is forward-looking -- "notice of his intention" -- and the clear purpose of the provision is to give the party against whom the evidence of intercepted communications is to be adduced reasonable time to prepare his case for trial with regard to such evidence. The only reasonable conclusion on the evidence in this case is that this purpose was satisfied.

(2.) The interceptions at 180 Allan Street, Oakville were unlawfully made.

Paragraphs 3 and 4 of the authorization of April 18, 1975 read:

3. The persons whose private communications may be intercepted in accordance with the terms and conditions of this authorization to intercept private communications are as follows:
1. Frank Pleich,
  (residence) 180 Allan Street,
  Oakville, Ontario,
  845-5145
  
  (business)
  "The Barn"
  1675 Lakeshore Boulevard West,
  Mississauga, Ontario.
  822-6574
2. any other person or persons whose identities are at present unknown or known who have acted or may act in concert or communicate with the said Frank Pleich at or near the premises hereinbefore described, that is to say, 180 Allan Street, Oakville, Ontario, or 1675 Lakeshore Boulevard, Mississauga, Ontario, or at or near such further and other locations both stationary and mobile to which the aforementioned persons or any of them may resort for the purpose of carrying on private communications in relation to the commission by any or all of such persons of any or all of the offences specified in paragraph one (1) of this authorization to intercept private communications.
4. The interceptions of the private communications of any or all of the persons described in paragraph three (3) of this authorization to intercept private communications may be made by means of any electromagnetic, acoustic, mechanical or other device installed at or near the addresses described in paragraph three (3) of this authorization to intercept private communications or at or near such further and other locations both stationary and mobile as may be resorted to by the persons described in paragraph three (3) of this authorization to intercept private communications for the purpose of carrying on private communications in relation to any of the offences specified in paragraph one (1) of this authorization to intercept private communications, that is to say:
1. possession of property obtained by the commission in Canada of an offence punishable by indictment, contrary to section 312(a) of the Criminal Code;
2. conspiracy to commit break, enter and theft, contrary to sections 423(1)(d) and 306(1)(b) of the Criminal Code;
3. possession of property obtained by an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment, contrary to section 312(b) of the Criminal Code.

For the purposes of the point under consideration the equivalent paragraphs in the authorization of May 27, 1975 read the same way.

The point of this objection is that the evidence disclosed that the interceptions at 180 Allan Street, Oakville, were made with respect to telephone number 845-5154 and not the number in the authorization, 845-5145. Obviously there was an error, in the authorization, in the transposing of the last two digits.

The most direct answer to this point is that the telephone number was not a term or condition of the authorization. When paragraphs 3 and 4, quoted above, are read together it may be seen that the authorization enabled the private communications of the appellant to be intercepted "at or near the addresses described in paragraph three (3) ... or at or near such further and other locations both stationary and mobile as may be resorted to by [the appellant] ..."

The legislation, as it stood at the time the authorization was given (see s. 178.13(2)(c) set forth under heading no. 4, infra), did not require that the place of interception be a term or condition of the authorization, but it was open to the judge to impose such a term under s. 178.13(2)(d): R. v. Douglas (1977), 33 C.C.C. (2d) 395 at p. 402. By the same token the authorization, with respect to the appellant, could have been confined to the telephone numbers referred to in paragraph 3 for the two places referred to in it, but, on a fair reading of the two paragraphs, it is clear that it was not. The relevant restrictions relate to the addresses, but not the telephone numbers, which appear to have been included for convenience only.

In view of the foregoing there is no need to consider other answers to this objection. The interceptions which were made at 180 Allan Street were lawfully made.

(3.) The trial judge did not give the jury proper instructions as to the use which could be made of a prior out-of-court statement of Armour.

In the course of his cross-examination Armour was confronted with a copy of a letter which he had written and sent to Len Yeck on or about October 5, 1975. It was made an exhibit. Its main purpose was to persuade Yeck to persuade the appellant to plead guilty to the possession charge. It contained several incriminating statements respecting the appellant, most of them of a general nature.

The letter, of course, was not evidence of the truth of the contents on which the jury could act in resolving issues as to the appellant's guilt and the trial judge should have expressly said this to the jury. He went no further than saying that it was "unsworn testimony". However, any prejudice to the appellant in this regard, in our view, was clearly overborne by the fact that Armour's evidence at the trial was much more harmful to the appellant than were the contents of the letter and the trial judge did tell the jury that the letter could be used by it in assessing Armour's credibility.

I turn now to the grounds of appeal which were argued in full before us.

(4.) The second authorization, granted on May 27, 1975, not being a renewal, was not properly granted and, accordingly, the evidence obtained pursuant to it was inadmissible.

I would note that this point was not raised at the trial nor in the notice of appeal or appellant's statement. It was made for the first time in the argument. The reasons mentioned, in a voir dire, for the time gap between the end of the first authorization period and the application for the second authorization were that the agent was not available for the preparation of the supporting material and also that there was a delay when the agent and the police officer had to await the availability of a judge.

The Code provisions most relevant to this issue are ss. 178.12 and 178.13. They were amended, in some respects, by (Can) 1976-77, c. 53, ss. 8 and 9, which came into force on August 5, 1977. The amendments were not in force at the time the authorizations were given, but since they have some bearing on a proper understanding of the scheme of the original provisions, before and after their enactment, I include and separately identify them in the following quotation of ss. 178.12 ad 178.13:

178.12 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 specially designated in writing for the purposes of this section by
1. the Solicitor General of Canada personally, if the offence under investigation is one in respect of which proceedings, if any, may be instituted at the instance of the Government of Canada and conducted by or on behalf of the Attorney General of Canada, or
2. the Attorney General of a province personally, in respect of any other offence in that province, 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:
3. the facts relied upon to justify the belief that an authorization should be given together with particulars of the offence;
4. the type of private communication proposed to be intercepted;
5. the names and addresses, 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, and if not known, a general description of the place at which private communications are proposed to be intercepted or, if a general description of that place cannot be given, a general description of the manner of interception proposed to be used;
[(Can) 1976-77, c. 53, s. 8(1) repealed paragraph 178.12(e), supra, and substituted therefor the two following paragraphs:

"(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;

(e.1) the number of instances, if any, on which an application has been made under this section in relation to the offence and a person named in the affidavit pursuant to paragraph (e) and on which the application was withdrawn or no authorization was given, the date on which each such application was made and the name of the judge to whom each such application was made;"]
1. the period for which the authorization is requested; and
2. whether other investigative procedures have been tried and have failed or why it appears they are unlikely to succeed or that the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.
[(Can) 1976-77, c. 53, s. 8(2) added the following three subsections to s. 178.12:
1. An application for an authorization may be accompanied by an application, personally signed by the Attorney General of the province in which the application for the authorization is made or the Solicitor General of Canada if the application for the authorization is made by him or on his behalf, to substitute for the period mentioned in subsection 178.23(1) such longer period not exceeding three years as is set forth in the application.
2. Where an application for an authorization is accompanied by an application referred to in subsection (2), the judge to whom the applications are made shall first consider the application referred to in subsection (2) and where, on the basis of the affidavit in support of the application for the authorization and any other affidavit evidence submitted in support of the application referred to in subsection (2), the judge is of the opinion that the interests of justice warrant the granting of such application, he shall fix a period, not exceeding three years, in substitution for the period mentioned in subsection 178.23(1).
3. Where the judge to whom an application for an authorization and an application referred to in subsection (2) are made refuses to fix a period in substitution for the period mentioned in subsection 178.23(1) or where the judge fixes a period in substitution therefor that is less than the period set forth in the application referred to in subsection (2), the person appearing before the judge on the application for the authorization may withdraw the application for the authorization and thereupon the judge shall not proceed to consider the application for the authorization or to give the authorization and shall return to the person appearing before him on the application for the authorization both applications and all other material pertaining thereto."]
178.13 (1) An authorization may be given if the judge to whom the application is made is satisfied that it would be in the best interests of the administration of justice to do so and that
1. other investigative procedures have been tried and have failed;
2. other investigative procedures are unlikely to succeed; or
3. the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.
[(Can) 1976-77, c. 53, s. 9(1) repealed s. 178.13(1) and substituted therefor in part, the following subsection:

"178.13(1) An authorization may be given if the judge to whom the application is made is satisfied
1. that it would be in the best interests of the administration of justice to do so; and
2. that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.]
1. An authorization shall
1. state the offence in respect of which private communications may be intercepted;
2. state the type of private communication that may be intercepted;
3. 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;
4. contain such terms and conditions as the judge considers advisable in the public interest; and
5. be valid for the period, not exceeding thirty days, set forth therein.
[(Can) 1976-77, c. 53, s. 9(2) repealed s. 178.13(2)(c) and substituted therefor the following paragraph:
"(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;"]
[(Can) 1976-77, c. 53, s. 9(3) repealed s. 178.13(2)(e) and substituted therefor the following paragraph.

"(e) be valid for the period, not exceeding sixty days, set forth therein."]
1. Renewals of an authorization may be given from time to time by a judge of a superior court of criminal jurisdiction or a judge as defined in section 482 upon receipt by him of an ex parte application in writing signed by the Attorney General of the province in which the application is made or the Solicitor General of Canada or an agent specially designated in writing for the purposes of section 178.12 by the Solicitor General of Canada or the Attorney General, as the case may be, accompanied by an affidavit of a peace officer or public officer deposing to the following matters, namely:
  1. the reason and period for which the renewal is required, and
  2. full particulars, together with times and dates, when interceptions, if any, were made or attempted under the authorization, and any information that has been obtained by any interception,
  and supported by such other information as the judge may require.
  
  [(Can) 1976-77, c. 53, s. 9(3.1) amended s. 178.13(3) by striking out "and at the end of paragraph (a) thereof, by adding "and" at the end of paragraph (b) thereof and by adding thereto, immediately after paragraph (b) thereof the following paragraph.
  1. "(c) the number of instances, if any, on which, to the knowledge and belief of the deponent, an application has been made under this subsection in relation to the same authorization and on which the application was withdrawn or no renewal was given, the date on which each such application was made and the name of the judge to whom each such application was made,"]
1. (4) A renewal of an authorization may be given if the judge to whom the application is made is satisfied that any of the circumstances described in subsection (1) still obtain, but no such renewal shall be for a period exceeding thirty days.
[By (Can) 1976-77, c. 53, s. 9(4) the period of thirty days was changed to one of sixty days.]

Mr. Manning's basic submission is that the Code makes no provision for the giving of a subsequent authorization which relates to the same person and the same offence as an earlier authorization, apart from the recognition of this possibility in s. 178.15(5) with respect to emergency authorizations. When he refers to "authorization" he means an authorization given under s. 178.13(1) and (2). He submits that the only way to obtain a subsequent authorization in such circumstances is by way of a renewal given under s. 178.13(3) and (4).

In support of his position he observes that authorizations and renewals are different, particularly with regard to the evidence, in both its substance and form, that is required in support of the application for each. In this regard s. 178.12(1) may be compared to s. 178.13(3). He stresses the particular appropriateness of the requirements of s. 178.13(3)(b) to the case where a second authorization is sought with respect to the same person and same offence. The same point is made with respect to s. 178.14(1) (a)(i), which enables a judge dealing with an application for renewal of an authorization to examine the documents relating to the authorization in the sealed packet. A judge dealing with an application for a subsequent fresh authorization, as opposed to one for renewal thereof, does not have this power. These features show the difference between authorizations and renewals and the policy considerations which are specifically applicable only to renewals indicate, he submits, a parliamentary intention that all applications for subsequent authorizations relating to the same person and offence should be dealt with exclusively under ss. 178.13(3) and (4) and that, impliedly, there is no jurisdiction under s. 178.13(1) and (2) to give an authorization in such circumstances.

An important question, the answer to which bears directly upon the issue to be resolved, is whether a renewal may lawfully be given with respect to an authorization after it has expired. If it may, then I think that the appellant's contention should succeed, i.e., that the agent in this case should have followed the renewal procedure with respect to the authorization given on May 27, 1975 and that there was no power in the judge to grant a further original authorization. If it may not, then the proper procedure would be to apply for a new authorization. I say this because, in my view, it would not be reasonable to ascribe to Parliament an intention, in these circumstances, that an applicant would have a choice as to the procedure to be followed, between obtaining an original authorization or a renewal of an expired one. It is clear that there are different statutory standards applicable to each kind of application and it would not make sense that applicants would have the right to choose between them. It also follows from what I have said that if an authorization has expired there is no implicit prohibition in the Code against the giving of new authorization merely because the earlier one was not renewed before it expired. To read in such a prohibition would be to adopt an unjustifiable "legal briar patch" approach to the legislation. See R. v. Welsh and Iannuzzi (No. 6) (1977), 32 C.C.C. (2d) 363 at p. 369.

The main issue turns on the proper interpretation of the opening words of s. 178.13(1): "Renewals of an authorization may be given from time to time ... " I do not think that the words "from time to time" assist in resolving the question. They show that any number of renewals of an a authorization may be given but do not prescribe when, having regard to the life of an existing authorization, such renewals may be given. The problem comes down to a determination of the meaning of "renewal" in the context of Part IV. 1 of the Code (ss. 178.1-178.23). It is not specifically defined in the legislation itself.

Dictionary definitions of "renewal" do not solve the problem. When they are consulted it may be seen that the word is capable of several meanings, including "to make new", "to restore to the same condition as when new" (which would support the view that the thing renewed must be in existence) and "to revive, resuscitate" (which would support the view that a lapsed authorization could be renewed). In my view, although the ultimate answer has to be determined from the statutory context, the more "standard" meaning is the one that assumes the continued existence of the matter "renewed". If it is not in existence then the process is really one of re-creation rather than renewal. Further, in a general legal context concerned with the renewal of rights, privileges and other interests, conferred under instruments such as leases, contracts and licences, it is, I think, a general understanding that renewal involves the temporal extension of something that is in existence and not the revival of something that has ceased to exist. This view was expressed (although as dicta on the timing point) by Lindley, L.J. in The Queen v. Licensing Justices of Crewkerne (1881), 21 Q.B.D. 85 at p. 87: "Now what is the meaning of applying for a renewal of a licence? It can only mean that the licence holder is applying to renew that which is in existence and is on the point of expiring, ... " (Emphasis added.)

This last statement was referred to by His Honour Judge Beaulne in R. v. Langrell, Provincial Court (Criminal Division) of the Judicial District of Ottawa-Carleton, January 27, 1976, where a renewal had been given seven days after the expiration of the original authorization. He held that the renewal was not lawfully made since the authorization which was sought to be renewed should have been in existence at the time of the purported renewal. This is the only decision which has come to my attention which is directly in point. I should also mention that in R. v. Badovinac (1977), 34 C.C.C. (2d) 65 at p. 70 Brooke, J.A. described a renewal as "simply extending the period of time within which [the authorization] is effective" but since the issues in that case were other than the one with which we are concerned this cannot be considered as an express decision on the point.

I turn now to the statutory context. As I have mentioned, Part IV. 1 contains no definition of renewal. The term 'authorization' is defined. Section 178.1 provides

"In this Part,
'authorization' means an authorization to
intercept a private communication given
under section 178.13 or subsection 178.15(2);"

There is no doubt that in the operative provisions in Part IV. 1, such as that exempting a person from liability for intercepting a private communication where this is done "in accordance with an authorization" (s. 178(2)(b)) and s. 178.16(1) (a), which refers to interceptions which are "lawfully made" (which includes "in accordance with an authorization") , "authorization" includes a renewal thereof. Since a renewal has the same legal status as the authorization which is renewed it may possibly be inferred that it is part of this authorization, i.e. a temporal extension of it. While this inference is far from being a conclusive one it is strengthened by the language of s. 178.23(1) as re-enacted by (Can) 1976-77, c. 53, s. 12. It reads:

" The Attorney General of the province in which an application for an authorization was made or the Solicitor General of Canada if the application was made by him or on his behalf shall, within ninety days next following the period for which the authorization was given or renewed or within such other period as is fixed pursuant to subsection 178.12(3) or subsection (4) of this section, notify in writing the person who was the object of the interception pursuant to the authorization and shall, in a manner prescribed by regulations made by the Governor in Council, certify to the court that issued the authorization that such person has been so notified." (Emphasis added.)

This provision contemplates, it appears to me, that where there is a renewal of an authorization there will be one period only covered by the two grants of authority, i.e. that there will be no gap between them which would result in there being more than one period. I do not construe the provision as recognizing a case where there may be a break in time between an authorization and its renewal and separate notices are to be given with respect to each or just one notice is to be sent, following the expiration of the separated renewal period. Both of these possibilities would be out of accord with the policy of the provision.

In support of his submission that a renewal application may be made after the expiration of the authorization sought to be renewed Mr. Manning refers to the requirements of s. 178.13(3)(b) and says that the full particulars required by this provision could not be completely given until after the authorization has come to an end. If this is the correct interpretation of s. 178.13(3)(b) then renewal applications not only may, but must, be brought after the expiration of the authorization. I do not accept this interpretation of s. 178.13(3)(b). Parliament must have intended, at the very least, that it would be open to law enforcement agencies to keep an authorization alive, without any interruption, on the requisite showings being made to the judge. Therefore, an interpretation which requires a lapse in the preceding authorization, however short, before it can be renewed is unreasonable. It is implicit, in my view, that "under the authorization" in s. 178.13(3)(b) means under the authorization at the time of making the application for renewal.

As far as more implicit contextual considerations are concerned, there is much to be said for the submissions advanced by Mr. Manning that the requirements of the provisions of ss. 178.13(3) and (4) would be apt to the consideration of a renewal application, no matter when made, and that this furnishes a clue to the legislative intent. However, stronger considerations, in my view, point in the other direction. As I have indicated, I think it is a reasonable working assumption that Parliament would have intended that if a law enforcement agency intended to renew an authorization it would desire to do so on a continuing basis, without any lapse. Normally, if an authorization came to an end without being renewed this would be because the law enforcement agency either had no need to apply for a renewal or considered that a case could not be made for one. If an authorization came to an end and a long period of time then elapsed it would seem inappropriate that the renewal, rather than the original application, procedure should be followed. The investigation would then probably have more of the characteristics of something new, as far as the need for and propriety of an authorization to intercept private communications were concerned, than something that had been existing for some time. Generally speaking, a new authorization would, I think, be more appropriate than a renewal of something long dormant. If this is so, and the Code provides for only one procedure to follow after the lapse of an authorization, as I have said, then the only procedure which could be followed in all cases, no matter how soon the application were made after the first application expired, would be that of obtaining a new authorization.

As far as the requirements of a renewal application are concerned, the appellant relies particularly on those which require the judge to be informed of what has taken place under the first authorization. See, again, s. 178.13(3)(b)). It is submitted that this important requirement would be frustrated if, merely because of the lapse of the first authorization, the proper procedure were to apply for a new authorization. In my view, while there is nothing specific in s. 178.12 which requires reference to any previous investigations involving the interception of private communications in the material to be put before the judge, it is implicit that in giving full and frank information respecting "the facts relied upon to justify the belief that an authorization should be given ... " (s. 178.12(1)(c)) and "other investigative procedures"(s. 178.12(1)(g)) complete reference would have to be made to any previous interceptions of private communications and the authority therefor. In the same vein, the judge acting under s. 178.13(1) would be obliged to give careful consideration to the previous experience relating to intercepted private communications in deciding whether the requirement of s. 178.13(1) (a) and (b) had been met.

Further, in so far as it may be suggested that it would be "easier" for a law enforcement agency to obtain a fresh authorization I think that, on balance, the requirements of s. 178.13(1) and (2) are more onerous than those of s. 178.13(3) and (4). The substantive standard which is imposed by s. 178.13(4) for renewals is clearly less onerous than those of s. 178.13(1) relating to original applications. Accordingly, with respect to subsequent authorizations respecting the same person and the same offence, although the legislation may not be fine-tuned to meet every possible situation in an optimum manner, for most reasonably contemplated situations involving an authorization which has expired it provides more protection for the objects of surveillance by the requirement to obtain a fresh authorization than a renewal of the old one.

Before concluding this part of my reasons I would note that it is not relevant that two names, in addition to that of the appellant, were included in the second authorization. While this would not have been valid with respect to the added persons, if done by way of renewal rather than authorization (R. v. Badovinac (1977), 34 C.C.C. (2d) 65), this circumstance would not have precluded a renewal being given with respect to the appellant and new authorizations respecting the two new persons.

Having regard to the foregoing, it is my view that the only way the authorization of May 27, 1975 could have been obtained was an authorization under s. 178.13(1) and (2) and that, accordingly, it was validly given.

(5.) The trial judge erred in allowing the tapes of the intercepted conversations to go to the jury with the other exhibits for use in their deliberations.

This ground of appeal was argued before us on the basis that the trial judge had allowed the tapes to go with the jury to be played by them during their deliberations as they saw fit. When the charge is read as a whole I am not sure that this was the case. It may have been that what was left with the jury was an instruction that arrangements could be made, if they wanted to have the tapes played, to see that their needs would be looked after. In any event, I shall approach this issue on the same assumption as that on which the arguments were based -- i.e. that the jury were allowed to use the tapes in the jury room in their deliberations. It is not known, of course, whether the jury in fact made any use of the tapes.

It is a fundamental feature of a jury trial, of which juries are constantly reminded, that it is the exclusive responsibility of the jury to find the facts in dispute on the evidence adduced before them. Accordingly, all reasonable assistance should be given to juries to enable them to perform this responsibility fairly and effectively. To refuse such assistance may result in reversible error: R. v. Mace (1975), 25 C.C.C. (2d) 121, where the trial judge had told the jury not to ask for parts of the evidence to be re-read.

It is the general practice in this jurisdiction for all those exhibits, which are real evidence, to be delivered into the jury room for use by the jury during their deliberations. Tape recordings are real evidence but they also have many of the characteristics of testimonial evidence. They relay to the jury, if they are accurate, the content of the recorded conversations -- as well as the actual sounds of the speakers' voices. Trial judges sometimes, in the exercise of their discretion, properly refuse to allow some forms of transcribed testimonial evidence (transcripts of evidence taken on commission are a good example) to go to the jury room with the other exhibits because of the risk that such evidence will thereby receive an undue emphasis compared to the oral evidence which the jury has heard.

McCormick on Evidence, 2nd ed. (1972) at p. 540 deals with this point as follows:

The current practice [of allowing tangible exhibits to be taken to the jury room] extends, unlike that at common law, to written exhibits generally except for those which are testimonial in nature, such as depositions, dying declarations in writing, etc. The reason underlying this latter exception is that writings which are merely testimony in a different form should not, by being allowed to the jury, be unduly emphasized over other purely oral testimony in the case. As an exception to the exception, however, written or recorded confessions in criminal cases, despite their obvious testimonial character, are in many jurisdictions allowed to be taken by the jury, apparently on the theory that their centrality in the case warrants whatever emphasis may result.

In a footnote to this passage relating to the testimonial evidence exception McCormick quotes the following from State v. Solomon, 96 Utah 500, 87 P. 2d 807 (1939) (which held that a transcript of trial testimony should not be sent to the jury room):

The law does not permit depositions or witnesses to go to the jury room. Why should a witness be allowed to go there in the form of written testimony?

If the trial judge were of the opinion that allowing tapes to be taken to the jury room might result in their being given undue emphasis then it would be a proper exercise of his discretion to withhold them from the jury. The chief difference between the tapes being taken to the jury room and being kept in the courtroom with the clerk is that in the latter situation the trial judge retains control over the use that may be made of the tapes after the jury has retired.

I would think that in most cases, the choice of the method by which use could be made of tapes by the jury after they have retired to deliberate should not pose any real problems and that, after the trial judge has had the benefit of counsels' submissions, arrangements which satisfactorily protect the parties' interests and of practical value to the jury could be settled without difficulty.

In the present case I am satisfied that there was no error in allowing the tapes to go with the jury, assuming that this was the case. Counsel for the appellant had successfully obtained a ruling from the trial judge that the jury were not, at any time, to have a transcript of the recordings because there were issues of interpretation to be resolved by the jury and, it would appear, was content to have the jury make such use of the tapes as they saw fit. There were parts of the tapes which he considered to be favourable to the defence and it is fair to assume that both parties saw some positive benefit in the course that was followed.

(6.) The trial judge erred in allowing the two authorizations to be made exhibits.

Each authorization, following its proof on the voir dire to determine admissibility, was identified, proven and made an exhibit in the Crown's case before the jury. As already indicated, part of each authorization contained the following:
1. 4. The interceptions of the private communications of any or all of the persons described in paragraph three (3) of this authorization may be made ... in relation to any of the offences specified in paragraph one (1) of this authorization to intercept private communications, that is to say:
  1. possession of property obtained by the commission in Canada of an offence punishable by indictment, contrary to section 312(a) of the Criminal Code;
  2. conspiracy to commit break, enter and theft, contrary to sections 423(1)(d) and 306(1)(b) of the Criminal Code;
  3. possession of property obtained by an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment, contrary to section 312(b) of the Criminal Code.

These exhibits, along with the others, went with the jury when they retired to deliberate. Further, while the authorizations were being proven before the jury some emphasis was laid on the part of the contents which I have quoted. With respect to each authorization Staff Sergeant Dorigo was asked to state for the jury what offences were set forth in the authorization and he did so.

The contents of the authorizations were not relevant to any issue which the jury had to consider and the authorizations should not have been admitted into evidence -- notwithstanding that defence counsel said that he had no objection to a copy of them being introduced. In view of the offences listed therein, in addition to that with which the appellant had been charged and was facing trial, they can hardly have been considered to be neutral documents. Since they showed the police had some reason to believe that the appellant was implicated in a conspiracy to commit the offence of breaking, entering and theft and of possession of property obtained by an offence outside of Canada, these documents carried the potential of significant prejudice to the accused. It is possible that the danger in this respect could have been lessened by an instruction to the jury from the trial judge to put this evidence out of their minds. Unfortunately, however, not only was this not done but it is likely that the danger of this prejudice was heightened by the description of the offences in the authorizations being emphasized in the Crown's oral evidence -- and by the authorizations being left with the jury for use in their deliberations.

(7.) The trial judge erred in failing to direct the jury respecting the use which could be made of statements, in the intercepted communications, of persons other than the appellant.

For the purpose of considering this ground of appeal the evidence of conversations on the tapes can usefully be considered as being of the same kind as that given by a witness who had overheard a conversation between the accused and someone else, made an accurate note of it, and repeated before the jury what was said. The accused's statements, to the extent that they are against his interest, are admissible against him as admissions. The statements of the other party to the conversation are not, on their own, admissible against him as evidence of the truth of the facts contained in them. They would be admissible if the accused accepted the truth of these facts by his words, conduct, action, or demeanour -- or even if he denied them if the denial were so equivocal or evasive as to permit an inference that he by his words or conduct assented to them. I refer to the recent statement of this principle (formulated in R. v. Christie, [1914] A.C. 545) in R. v. Baron and Wertman (1977), 31 C.C.C. (2d) 525 at pp. 538-39 and 542. There is no reason why this principle should not be applicable to incriminating statements made to the accused persons which are recorded on a tape which is played before a jury -- and the jury should be given appropriate instructions on the use which can be made of such statements. See Watt, Law of Electronic Surveillance in Canada (1979), at p. 301.

While the tapes which were played before the jury in this case contain some potentially incriminating statements made to the appellant (some of which were denied by him) the trial judge's charge to the jury contained no instructions on their admissibility or use as evidence against the appellant. In fact, the trial judge instructed the jury in such a way that they could regard any statement in the recordings as being evidence of the truth of its contents. He said: "... [J]ust because I have said these tapes may be played does not in any way indicate that you are not to consider them in the same light as all the other testimony. In other words, you must have the same consideration as to what weight and what credibility you are going to attach to anything on those tapes." (Emphasis added.)

The charge, in my view, contained non-direction and mis-direction on this particular issue.

(8.) The trial judge erred in failing to instruct the jury respecting the use which could be made of Armour's criminal record.

As I have said, Armour had an extensive criminal record, the details of which were elucidated during his cross-examination. He had been convicted of armed robbery, several break, enter and theft offences, forgery, uttering forged documents, several possession of stolen property offences, possession of housebreaking instruments, breach of recognizance, and breach of undertaking. He estimated that he had been in custody twelve years since 1949. He was not charged with the four break and enter offences relating to the stolen property involved in this case.

While the only ground on which Armour's criminal record was admitted in evidence was that it was relevant to his credibility, if the jury saw fit to use it for this purpose, the jury was not so instructed. In fact no reference at all was made in the charge to the evidence relating to Armour's record. Since Armour's credibility was the central issue in the trial, it cannot be said that the trial judge's failure in this respect was of no significance, even if other aspects of the evidence relating to his credibility were dealt with adequately.

(9.) The trial judge erred (a) in admitting a xerox copy of a telephone notebook found in Armour's residence, and (b) in admitting evidence of a police officer of the finding of this document which evidence was given after Armour had completed his evidence.

As I have said, Armour gave evidence that he had the appellant's telephone number written down in two address-type books, one of which was at his home and the other which he carried with him. Neither of these books was produced to him for identification while he was giving evidence. Subsequently, in the course of the Crown's case, and over the objection of counsel for the accused, Corporal Skelly of the Ontario Provincial Police gave evidence that on May 3, 1974, armed with a search warrant, he removed two address books from Armour's residence, where Armour and his wife and her daughter lived. He copied them and returned them to Mrs. Armour. The xerox copy of one of the books was made an exhibit. One of the pages had on it "Frank - 416 - 485-5154 - RS. Prussia." He did not know whose handwriting was in the book.

As far as admitting the copy of this book is concerned, there is no doubt that such admission violated the best evidence rule. No proper explanation was given of the absence of the book itself. Indeed, the reason advanced for not producing it demonstrated that no exception to the best evidence rule could at all be argued.

As far as admitting the evidence in any form, in the way that it was admitted, is concerned, no attempt was made by Mr. Lundy before us to justify what was done. At trial the counsel for the Crown said that the purpose of the evidence was to show that the appellant's telephone number was known to Armour. Counsel for the appellant said that he had no objection to the book being introduced provided that Armour was recalled as a witness to identify the book as his. The trial judge ruled the evidence admissible observing that "it only, in essence, confirms the evidence that he did in fact have the phone numbers, but it doesn't go much further than that."

There is no point dealing with the arguments that could be made to support the admissibility of the document on the ground that it (or, more properly, the original thereof) was found in the possession of a co-conspirator of the appellant and, as such, would be admissible in evidence against the appellant. For it to be so admissible on this ground there would have to be evidence, apart from that of the possession of the book itself by Armour, on which the jury could find that there was a conspiracy between the appellant and Armour. However, the defence had no objection to the introduction of this evidence by Corporal Skelly, presumably as tending to confirm that given by Armour, provided that Armour himself were subjected to cross-examination as to its identity. I think that the evidence would have been properly admissible on this basis. There was no valid reason for insulating Armour from examination and cross-examination on the identity of this exhibit and in the circumstances of this case I think that the way the exhibit was introduced was unfair to the appellant. Cf. R. v. Vallieres (1973), 15 C.C.C. (2d) 241 at pp. 266-68.

Conclusion

The remaining question to be determined, a difficult one, is the proper disposition of this appeal having regard to the errors discussed under headings numbered 6, 7, 8 and 9. Is this a proper case for the application of the proviso in s. 613(1) (b) (iii) of the Criminal Code? If each of these errors were viewed in isolation the proviso might well be properly applicable to each one. However, when they are viewed cumulatively I am not satisfied that if they had not been made the jury could not have done otherwise than find the appellant guilty: Colpitts v. The Queen, [1965] S.C.R. 739 at pp. 754-56 and Rex v. MacDonald, [1939] O.R. 606 at p. 626. Accordingly, I would not apply the proviso.

In view of my ultimate disposition, to direct a new trial, it might be of value to refer to a part of the charge which was not dealt with in the argument which reflects a further error. The trial judge, after referring to the appellant's pre-trial statements disclaiming knowledge on his part that the goods were stolen said:

If you should come to the conclusion based on your consideration of all of the evidence, and all the circumstances that in making those assertions right from the beginning, the accused was in fact lying, and that the facts were otherwise, then I put it to you that fact of lying, if you should find the accused to be lying, then you would be entitled to assume from that that the accused was conscious -- or had a consciousness of his guilt, and that in itself could be, if you so find, corroboration of the evidence of Armour insofar as his testimony as an accomplice is concerned.

The error in this passage is that it is open to being understood as a "boot strap" type of direction that if the jury accepted the other evidence in the case that the appellant did know that the goods were stolen and that, therefore "the accused was in fact lying and the facts were otherwise", then this circumstance of itself was additional evidence against the accused and could be corroborative. See R. v. Davison, DeRosie and MacArthur (1974, 20 C.C.C. (2d) 422 at pp. 427-432; R. v. Kistendey (1975), 29 C.C.C. (2d) 382 at pp. 385-388; and R. v. Mahoney (1979), 50 C.C.C. (2d) 380 at pp. 388-389. At p. 430 of Davison, DeRosie and MacArthur, supra, Martin, J.A., said:

The learned trial judge did not, in my opinion, in the passages in the charge referred to above, make clear to the jury the distinction between proof that the alibi advanced is false in the sense of being concocted and the mere rejection by the jury of the evidence of alibi because they believe that evidence to be untruthful, although not proved to be false. Proof of the falsity of the alibi may constitute affirmative evidence of guilt. The mere rejection of the evidence of alibi because it is disbelieved is not affirmative evidence of guilt and has only the effect of removing it from consideration as a barrier to the acceptance of the case for the prosecution.

The instruction that was given to the jury was tantamount to instructing them that if they concluded that the appellant's denial of guilt was false this was additional evidence against the appellant and was capable of affording corroboration.

For the foregoing reasons I would allow the appeal, quash the conviction and direct a new trial.

MARTIN J.A.
HOULDEN J.A.
MORDEN J.A.
QL Update: 980225
qp/s/kpt
crim

R. v. Pleich

Between Her Majesty the Queen, respondent, and Frank Peter Pleich, appellant

Ontario Supreme Court - Court of Appeal Toronto, Ontario Martin, Houlden and Morden JJ.A.

Between
Her Majesty the Queen, respondent, and
Frank Peter Pleich, appellant

Ontario Supreme Court - Court of Appeal
Toronto, Ontario
Martin, Houlden and Morden JJ.A.