section 189(5)

INTRODUCTION AND BRIEF DESCRIPTION

Private communications obtained through interception cannot be used as evidence unless the accused is given reasonable notice and details about the communication.

SECTION WORDING

189(5) The contents of a private communication that is obtained from an interception of the private communication pursuant to any provision of, or pursuant to an authorization given under, this Part shall not be received in evidence unless the party intending to adduce it has given to the accused reasonable notice of the intention together with (a) a transcript of the private communication, where it will be adduced in the form of a recording, or a statement setting out full particulars of the private communication, where evidence of the private communication will be given viva voce; and (b) a statement respecting the time, place and date of the private communication and the parties thereto, if known.

EXPLANATION

Section 189(5) of the Criminal Code of Canada deals with the interception of private communications and sets out the requirements that must be met before the contents of such communications can be used as evidence in a criminal trial. The section stipulates that any such evidence must not be received unless the party intending to adduce it has given reasonable notice of their intention to the accused person. The notice must be accompanied by a transcript of the private communication if it is to be presented in the form of a recording, or a statement setting out full details of the communication if evidence is to be given verbally. Additionally, a statement must be provided regarding the time, place, and date of the communication, as well as the parties involved if known. This section of the Criminal Code of Canada is designed to prevent the use of improperly obtained evidence in criminal trials, particularly in cases where private communications are intercepted without permission. The requirement for providing notice and a transcript or statement ensures that the accused person has the opportunity to prepare an effective defense in response to any potentially damaging evidence. Overall, Section 189(5) helps to safeguard the rights of individuals in criminal proceedings and promotes fairness and justice in the Canadian legal system.

COMMENTARY

Section 189(5) of the Canadian Criminal Code ensures that the contents of a private communication intercepted through the authorization of Part VI of the Code cannot be used as evidence in court unless the accused party is given reasonable notice of the intention to submit it as evidence. This provision therefore serves as a safeguard against the potential abuse of wiretapping powers by law enforcement and ensures that privacy rights are respected even when criminal investigations are ongoing. The notice provided to the accused party must include a transcript of the communication if it will be presented as a recording, or a statement with full particulars of the communication if evidence will be given viva voce. Furthermore, if known, the notice must also include the time, place, date, and parties involved in the communication. By requiring this level of detailed information, the accused is given the opportunity to prepare a defense and potentially challenge the admissibility of the evidence in court. The purpose of Section 189(5) is to balance the interests of law enforcement and the protection of privacy rights. While wiretapping can be a valuable tool in criminal investigations, it also has the potential to violate an individual's right to privacy. Providing notice to the accused ensures that they have a fair chance to defend themselves and that privacy rights are respected throughout the legal process. In addition, the provision also serves as a deterrent to the abuse of wiretapping powers by law enforcement. If they know that the evidence obtained through wiretapping cannot be used in court without providing the accused party with detailed notice, then they may be less likely to conduct unauthorized intercepts or use wiretapping as a shortcut in their investigations. Finally, Section 189(5) reinforces the importance of transparency in the legal process. By ensuring that the accused party is aware of any intercepted communication, the provision promotes accountability and upholds the principle of open justice. It is a critical component of ensuring that the legal system functions fairly and transparently. Overall, Section 189(5) plays an essential role in protecting privacy rights and promoting transparency in the criminal justice system. It serves as a safeguard against the abuse of wiretapping powers while ensuring that law enforcement can still effectively investigate crime. As such, it is a crucial provision of the Criminal Code of Canada that contributes to the fairness and integrity of the legal process.

STRATEGY

Section 189(5) of the Criminal Code of Canada (the Code") is an important provision in criminal law that regulates the use of intercepted private communications as evidence in court. In essence, the section requires the party intending to adduce such evidence to give the accused reasonable notice of their intention, along with a transcript or statement of the communication and other relevant details. While this provision serves to protect the privacy rights of individuals, it also presents strategic considerations for both the prosecution and defence in criminal cases. One strategic consideration when dealing with section 189(5) of the Code is timing. Specifically, when should the party intending to adduce the intercepted communication provide notice to the accused? Ideally, this should be done as early as possible, to allow the accused and their legal team adequate time to review the evidence and prepare a defence. However, the party may also delay notice until a later stage in the proceedings, in order to gain a tactical advantage or to prevent the accused from having sufficient time to prepare. Another strategy for dealing with section 189(5) is to challenge the admissibility of intercepted communications on various grounds. For instance, the accused may argue that the interception was unlawful or that there was insufficient justification for it. Alternatively, they may argue that the notice provided by the party intending to adduce the communication was inadequate or came too late. These challenges could potentially exclude the intercepted evidence from being used in court, thereby strengthening the accused's case. A related strategy is to seek disclosure of additional information about the intercept, such as the circumstances under which it was obtained, the identities of the parties involved, and any related documentation. This information can help the accused to better understand the evidence against them and to identify weaknesses in the prosecution's case. In addition, parties must be prepared to deal with the practical challenges of managing intercepted evidence, such as navigating complex legal and technical requirements for preserving and presenting the evidence in court. They should have a clear understanding of the necessary procedures and resource requirements for collecting, analyzing, and presenting the evidence. Overall, section 189(5) requires parties to be diligent and strategic when dealing with intercepted private communications. Effective strategic planning and implementation can help parties to strengthen their case and achieve a favourable outcome in criminal proceedings.