section 189(6)

INTRODUCTION AND BRIEF DESCRIPTION

Intercepted privileged information is still privileged and cannot be used as evidence without consent.

SECTION WORDING

189(6) Any information obtained by an interception that, but for the interception, would have been privileged remains privileged and inadmissible as evidence without the consent of the person enjoying the privilege.

EXPLANATION

Section 189(6) of Canada's Criminal Code protects the privilege of individuals who have their communications intercepted during legal proceedings. The principle of privilege is a legal rule that prevents certain information from being disclosed or used against a person, even if it would be relevant to a legal case. Examples of privileged information include lawyer-client communications, doctor-patient communications, and spousal communications. The section establishes that if information is obtained through an interception that would have been privileged in the absence of the interception, it remains privileged and inadmissible as evidence in court unless the person who possesses the privilege consents to its use. Interception refers to the act of listening, recording, or other means of gathering information from a communication. The section aims to protect individuals' privacy and promote the integrity of legal proceedings. It also addresses concerns about the potential misuse of certain types of information that are privileged. It serves as a safeguard for preserving the confidentiality of communications between different parties. In practice, the court recognizes different forms of privilege and how they can be protected. For example, the court may require an explanation of the type of privilege claimed and the reasons for it. It may ask the person claiming the privilege to provide evidence to support their claim, and they must demonstrate that the communication was made in confidence between the parties. Section 189(6) highlights the importance of protecting the privileged information of individuals during legal proceedings and the critical role privilege plays in the administration of justice. It is a vital aspect of ensuring that justice is served correctly and equitably.

COMMENTARY

Section 189(6) of the Criminal Code of Canada is a crucial legal provision that upholds the principle of privilege under Canadian law. In essence, the section prohibits the use of any information obtained through interception that otherwise would have been privileged without the consent of the person enjoying the privilege. This legal provision has significant implications for the admissibility and use of evidence in criminal proceedings in Canada. Privilege is a fundamental aspect of the Canadian legal system that affords protection to certain types of communications, documents, or materials that are deemed confidential or sensitive. The law recognizes different types of privilege, such as solicitor-client privilege, journalistic privilege, and parliamentary privilege, among others. The purpose of the privilege is to encourage the free flow of information and communication between parties, such as lawyers and clients, journalists and sources, or parliamentarians and constituents, without fear of disclosure or repercussions. Interception, on the other hand, refers to the act of intercepting or monitoring communications or conversations without the knowledge or consent of the parties involved. Intercepting private communications is generally considered an invasion of privacy and a violation of the Canadian Charter of Rights and Freedoms unless it is authorized by law, such as in cases of law enforcement, national security, or emergency situations. In such cases, interception must be conducted in accordance with the legal framework that imposes strict procedural and substantive safeguards to protect privacy and limit the scope and duration of the interception. Section 189(6) of the Criminal Code of Canada is a statutory provision that addresses the interaction between privilege and interception in criminal cases. It states that any information obtained by an interception that, but for the interception, would have been privileged remains privileged and inadmissible as evidence without the consent of the person enjoying the privilege. This means that even if interception is authorized by law, such as by a warrant, the intercepted information cannot be used as evidence in court if it would violate the privilege of the parties involved unless they consent to the disclosure. The rationale behind this provision is to ensure that privilege is not undermined or circumvented by interception, which would otherwise deter individuals from seeking or providing confidential information or advice, such as legal, medical, or journalistic advice. This provision protects the confidentiality and integrity of privileged communications and maintains the trust and confidence that underpin the privilege. Without this provision, interception could be used to reveal privileged information and use it against the parties involved, thereby chilling their fundamental rights and freedoms. However, the application of this provision is not absolute and may be subject to interpretation and challenges in specific circumstances. For example, the provision only applies to information that is actually privileged at the time of interception, and not to information that becomes privileged later on. Moreover, the provision does not apply to situations where the communication is made for an illegal purpose or where the privilege is abused to commit a crime. In such cases, interception may be admissible as evidence in court. Furthermore, the provision does not prevent interception from being used for investigative purposes, such as identifying potential witnesses or suspects, or gathering intelligence. Interception that is not used as evidence in court may still have implications for the parties involved, such as reputational harm or loss of trust. Therefore, interception should be conducted with caution and in compliance with the legal framework that governs it. In conclusion, Section 189(6) of the Criminal Code of Canada is a crucial provision that protects privilege in the context of interception and upholds the principles of privacy, confidentiality, and fundamental rights and freedoms. It underscores the importance of privilege in the Canadian legal system and ensures that interception is not abused to undermine or circumvent it. However, the application of the provision may be subject to interpretation and challenges, and interception must be conducted with caution and compliance with the law.

STRATEGY

Section 189(6) of the Criminal Code of Canada protects the privilege of information that would have remained privileged if not for the interception. This means that any evidence obtained through this method cannot be admissible in a court of law unless the person enjoying the privilege gives their consent. This section of the Criminal Code poses strategic considerations for individuals and organizations when dealing with intercepted information. In this article, we will discuss some of the strategic considerations that may arise when dealing with Section 189(6) of the Criminal Code of Canada and some potential strategies that could be employed. First, it is essential to determine whether the information in question is privileged or not. Privileged information is a type of information that is confidential and protected by law. Examples of privileged information include lawyer-client conversations, communications between spouses, and doctor-patient conversations. If the information is privileged, it would be protected under Section 189(6) of the Criminal Code of Canada, and therefore, the person enjoying the privilege must consent to the admissibility of such evidence. The next consideration is whether to consent to the admissibility of the evidence or not. An individual or organization should weigh the potential benefits and drawbacks before deciding to give their consent. On the one hand, consenting to the admissibility of the evidence may make it possible to use it in court and potentially secure a favorable outcome. On the other hand, consenting may also compromise the privacy and confidentiality of the privileged information and damage the trust and relationship between the two parties that shared the information. If the privileged information is not admissible, there are some strategic considerations to take into account. One strategy could be to seek alternative evidence that would serve the same purpose without compromising client-privacy. For example, if a prosecutor needs to prove a confession was made, obtaining written or verbal statements from witnesses or CCTV footage could provide the necessary evidence. Another strategy could be to seek a judicial order to exclude or limit the use of the intercepted privileged information. Section 24(2) of the Canadian Charter of Rights and Freedoms allows for the exclusion of evidence where its admission would significantly affect the fairness of the trial. An individual can request the exclusion of the evidence on grounds that admitting the information would violate the rights of the person who shared it. The court would then weigh the benefit and disadvantage of admitting the evidence and potentially exclude the evidence. In summary, Section 189(6) of the Criminal Code of Canada provides privileged information protection. However, there are strategic considerations to take into account when dealing with intercepted information. Individuals and organizations must determine whether to consent or withhold consent of the admissibility of the evidence and seek alternative evidence or judicial orders to exclude the evidence. Balancing these strategic considerations and utilizing appropriate strategies can help ensure the protection of privileged information.