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| Patrick Ducharme |
In LeBlanc and Steeves v. R.1 the Court of Appeal for New Brunswick was asked to resolve a conflict between the provisions of subsection 189 (5) and subsection 540 (7). Subsection 189 (5) provides that the contents of a private communication lawfully intercepted shall not be received in evidence unless the party intending to adduce it has complied with certain notice requirements. Subsection 540 (7) provides that a Justice may receive as evidence any information that would not otherwise be admissible provided the Justice considers the evidence credible or trustworthy in the circumstances of the case.
The issue before this appellate court was whether the contents of a private communication, lawfully intercepted, but without the notice mandated by 189 (5) was admissible at a preliminary inquiry pursuant to 540 (7). It should be noted that the Crown argued that notice had effectively been given by timely disclosure. The Superior Court Judge had dismissed the application for certiorari because the accused had not complied with section 536.3. Each accused had identified all the issues on which they wanted evidence to be given at the preliminary inquiry but did not insist upon notice under subsection 189 (5).
The Court of Appeal for New Brunswick disagreed. The court found that the wording of section 536.3 does not preclude an accused from stating that all issues are live issues at the preliminary inquiry. Ironically, section 536.3 was part of the reforms of 2004 hoping to streamline preliminary inquiries that included the enactment of subsection 540 (7). Despite disagreeing with the application Judge’s ruling, the appellate court still found that it did not amount to jurisdictional error.
The court concluded that the Justice at the preliminary inquiry was faced with conflicting statutory provisions regarding the admission of intercepted communications. Deciding which of the two provisions would hold sway could not amount to jurisdictional error. The court described it in this way:
In the present case, the Justice at the preliminary inquiry was faced with conflicting statutory provisions regarding the admission of the intercepted communications. On the one hand, s.189(5) prohibited the admission of this evidence unless the prescriptions of that provision had been met, while, on the other hand, the Justice was authorized to “receive as evidence any information that would not otherwise be admissible but that the Justice considers credible or trustworthy in the circumstances of the case” (s. 540(7)). The question is this: who, at the preliminary inquiry, had the jurisdiction to resolve this apparent conflict between s.189(5) and s.540(7)? The answer is as clear as it is simple: the presiding Justice, of course. How can it be said that, in resolving an evidentiary issue that only he could be called upon to resolve, the Justice committed jurisdictional error? In my view, it cannot. The determination of whether or not the intercepted private communications could be admitted in evidence as credible or trustworthy evidence that would not otherwise be admissible was one to be made within the scope of the jurisdiction of the Justice presiding at the preliminary inquiry. It is an evidentiary ruling and does not go to jurisdiction. Evidentiary rulings made at a preliminary inquiry are beyond the reach of judicial review, whether the ruling is right or wrong.
The preliminary inquiry Justice’s decision to admit the evidence despite the fact that mandatory notice under section 189 (5) might not have been given, did not commit a jurisdictional error.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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