R. v. Davie 1980

British Columbia Court of Appeal

R. v. DAVIE

1980 CarswellBC 584

R., The Crown
v.
MORRIS DAVIE, Respondent

Docket: Vancouver No. CA 790521
Judgment: September 10, 1980

Syllabus

Davie had agreed to take a polygraph test. Unknown to Davie, the polygraph room included a hidden microphone and hidden video camera. After leaving Davie alone in the room, the two police officers activated the equipment from a switch outside the polygraph room. The officers observed and recorded Davie falling to his knees, saying "Oh God, let me get away with it just this once." Prosecutors subsequently charged Davie with willfully setting fire to a forest. The "Oh God" statement was held inadmissible and Davie was acquitted. The Crown appealed to the British Columbia Court of Appeal from the acquittal, arguing that the trial judge had erred in ruling that the "Oh God" statement made by Davie in the polygraph room were inadmissible in evidence as a private communication intercepted without lawful authority. The British Columbia Court of Appeal allowed the appeal and, after ruling that God was not a person, set aside the acquittal verdict and ordered a new trial.

Counsel for The Crown: P.W. Ewert
Counsel for Respondent: K. Aartsen

Summary of Opinions

Per Hutcheon J.A. (Seaton J.A. concurring): Interception of a private communication statement requires a speaker and intended human recipient. The human recipient needs to be part of the human species. God is not a person and thus is not part of the human species. There was no interception of communication as there was no intended human recipient. Thus, the protection of privacy afforded by Pt. IV. 1 of the Criminal Code did not apply to the "Oh God" statement spoken by Davie.

Per Nemetz C.J.B.C. (dissenting): Interception of a private communication statement only requires that the originator of the statement reasonably believed he was in communication. Here, Davie believed he was talking to God and it is impossible to say the belief was unreasonable. Davie also had a reasonable expectation that his statement was made in privacy. The interception was made without consent or authorization and was therefore unlawful. There was no need to determine if God was a "person".

Opinion of the Court

Hutcheon JJ.A., delivered the opinion for the court with Seaton J.A., concurring. The Chief Justice, Nemetz C.J.B.C., filed a dissenting opinion, listed first in respect of his Chief Justice position.

Nemetz C.J.B.C. (dissenting):

1 The accused, Morris Davie, was tried before Lander Co. Ct. J. and a jury in the county of Cariboo and acquitted of the charge of wilfully setting fire to a forest [9 C.R. (3d) 275, 48 C.C.C. (2d) 571]. The Crown appeals from that acquittal, submitting that the learned trial judge erred in ruling after a voir dire that certain words spoken by Davie were inadmissible in evidence as a private communication which had been intercepted without lawful authority. The issue is whether the words spoken constituted a "private communication" within the meaning of Pt. IV. 1 of the Criminal Code, R.S.C. 1970, c. C-34, for there is no doubt that, if they come within that definition, then they were not lawfully intercepted.

2 The facts are unusual. Two young men, other than the accused, set a forest fire northwest of the city of Prince George. They later claimed that they were counselled to do so by the accused. The accused became apprehensive that he would be charged and approached the R.C.M.P. constable who was investigating the case. The constable offered him an opportunity of undergoing a polygraph examination. Davie accepted this offer and accompanied the constable to the subdivision office in Prince George. There he was introduced to the polygraph operator, an R.C.M.P. sergeant, who gave him a card which explained the function of the machine at some length. The two police officers then left Davie alone in the polygraph room. Unbeknownst to the accused, the room was equipped with a microphone concealed in the ceiling and a video camera concealed in the wall. These were connected to monitoring and recording equipment in an adjacent room.

3 The two officers entered the adjacent room and activated the equipment, allowing them to see, hear and record what Davie said and did in the polygraph room, all without Davie's knowledge or consent and without judicial authorization. They saw and heard Davie slide out of his chair, fall to his knees and raise up his arms, saying "O God, let me get away with it just this once". The accused continued to speak in this fashion, addressing himself to God and promising future obedience in return for present deliverance. At his trial, however, the Crown sought to introduce into evidence only the statement just quoted.

4 In his oral reasons, the trial judge found this statement to have been a "prayer" intended by the accused to be heard by his God alone and not by the police. After considering the purpose of the legislation, he concluded that the statement was a private communication which, there being no evidence of any lawful authorization, was inadmissible.

5 Did the judge err? After anxious reflection, I have concluded that he did not. I turn first to the legislative provisions of Pt. IV. 1 of the Criminal Code, originally enacted by the Protection of Privacy Act, 1973-74 (Can.), c. 50, s. 2. A "private communication" is defined by s. 178.1 as follows: "'private communication' means any oral communication or any telecommunication made under circumstances in which it is reasonable for the originator thereof to expect that it will not be intercepted by any person other than the person intended by the originator thereof to receive it."

6 Sections 178.11 and 178.16 [am. 1976-77, c. 53, s. 10] provide, in part:

178.11: (1) Every one who, by means of an electromagnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for five years. (2) Subsection (1) does not apply to (a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it ...

178.16: (1) A private communication that has been intercepted is inadmissible as evidence against the originator of the communication or the person intended by the originator to receive it unless (a) the interception was lawfully made; or (b) the originator thereof or the person intended by the originator to receive it has expressly consented to the admission thereof.

7 These and other provisions of the Protection of Privacy Act have recently been reviewed by the Supreme Court of Canada in Goldman v. R. (1979), 13 C.R. (3d) 228, 51 C.C.C. (2d) 1, 30 N.R. 453. Unfortunately, the precise point on this appeal was not before that court. However, a reading of the judgment of McIntyre J., speaking for the majority, offers some guidance to one approaching the problems which arise here. The learned justice observes (at p. 244) that:

Prior to the coming into effect of the Protection of Privacy Act, 1973-74 (Can.), c. 50, in 1974, which amended the Criminal Code by the addition of Pt. IV. 1, an intercepted communication of the kind described above was admissible in evidence, subject to established common law rules of evidence, without the statutory restrictions now found in Pt. IV. 1 of the Criminal Code (ss. 178.1 and 178.11 to 178.22 inclusive). One effect of the Pt. IV. 1 was to break new ground and impose restrictions upon the admission of such evidence.

McIntyre J. further observes that the right to privacy may, under the scheme of Pt. IV. 1, be subject to frequent lawful breach, but warns (at p. 247) that "the courts must be astute to limit breaches to the extent provided by the Code".

8 Keeping that admonition in mind, I turn to an examination of what constitutes a "private communication" under the statute. But before doing so, I note by way of preface that, where it is sought to introduce into evidence against an accused a statement made by him which was intercepted "by means of an electromagnetic, acoustic, mechanical or other device", then an inquiry into the statement's admissibility under Pt. IV. 1 of the Code must precede any other considerations of admissibility. If the statement is found to be inadmissible under the privacy legislation, then no further inquiry is necessary. If, however, Pt. IV. 1 is found not to be applicable, then it will be necessary to inquire further, at common law, as to whether it may be admitted into evidence. It is the existence of electromagnetic (etc.) interception alone, as opposed to mere eavesdropping, which will require the courts to consider whether the exclusionary provisions of the Protection of Privacy Act are to be applied. Consequently, cases such as Woolfolk v. State (1890), 11 S.E. 814 (Georgia S.C.), where a jailer was allowed to testify as to the inculpatory nature of a prayer he had overheard a prisoner (the accused) make, are of no assistance. The present case must be determined by interpreting the true meaning of the privacy sections of the Code to which I have referred.

9 I start with an examination of the definition of "private communication" in s. 178.1. The definition may be broken down into its component parts, as follows:

(1) 'private communication' means any oral communication ...

(2) made under circumstances in which it is reasonable for the originator thereof to expect that it will not be intercepted by any person other than the person intended by the originator thereof to receive it.

Much argument was addressed to the issue of whether God is a "person" within the meaning of the section. The Crown submitted that the statement was not a "private communication", as there was no "person intended by the originator thereof to receive it". It is my view that this line of argument is futile and, in any event, the term "person" is not a decisive part of the definition. Of the two elements of the definition shown above, the first goes to whether there was a communication at all, and the second goes to whether the circumstances were such that the originator was entitled to expect his communication to be private. In the circumstances of this case, I have no difficulty in concluding that the second component, that of the originator's reasonable expectation of privacy, has been satisfied here. I adopt the interpretive approach of Culliton C.J.S. in R. v. Zoell, Sask. C.A., 14th March 1979 (not yet reported), who said that the test "relates only to what is in the mind of the sender". This approach met with the approval of the Supreme Court of Canada in Goldman, supra. There can be no doubt that Davie reasonably expected that his statement was made in complete privacy.

10 The important question is whether the statement can be considered to be a "communication" at all. The Oxford English Dictionary, Compact Edition (1971), vol. 1, p. 700, defines "communication" as follows:

2. spec. The imparting, conveying, or exchange of ideas, knowledge, information, etc. (whether by speech, writing or signs).

Goldman, supra, makes it clear that an exchange is unnecessary and that it is the act of imparting which is essential. It follows, in my view, that it is relevant to look at the state of mind of the person who imparts, and that here too a subjective approach, tempered with the objective test of reasonableness, must be adopted. Did Davie believe that he was imparting ideas, information, etc.? The trial judge said that he did, and that finding is not challenged. He believed he was communicating with a Being who would hear his supplication. Was that belief reasonable? It is surely impossible to suggest that it was not. I conclude, therefore, that the statement was an "oral communication" and, it follows, a "private" one.

11 Accordingly, it is not necessary, in my view, to decide whether "person" includes a theological Person or is limited to natural and artificial persons. It is sufficient if the statement is a communication in that the originator reasonably believes that he is imparting ideas, knowledge, information, etc., in circumstances which give rise to a reasonable expectation of privacy. It is then a "private communication". It cannot have been the intention of Parliament to exclude from the protection of the provisions of the Protection of Privacy Act theists who believe that their private prayers are heard and considered. To hold otherwise not only would violate what I perceive to be the purpose of the Act but would also, in my opinion, be repugnant to all who hold religious beliefs, and thus contrary to the public interest.

12 As I have concluded that the statement was a "private communication", its admissibility must be governed by s. 178.16(1). The interception was not judicially authorized, and no consent had been obtained from Davie, the only person, in the circumstances, who was in a position to give it pursuant to s. 178.11(2)(a). It was therefore not lawfully made within s. 178.16(1)(a) (see Goldman, supra). That consent to admissibility was not forthcoming under s. 178.16(1)(b) is obvious. It follows that the statement "is inadmissible in evidence against the originator of the communication". That the field of persons able to give consent pursuant to s. 178.11(2)(a) or 178.16(1)(b) will be narrowed somewhat will not, in my opinion, be a serious handicap for law enforcement agencies, since, in appropriate cases, judicial authorization may be obtained. Accordingly, I would dismiss the appeal.

Hutcheon J.A. (Seaton J.A. concurring):

13 The question on this appeal is whether Lander Co. Ct. J. was right when, after a voir dire, he ruled inadmissible a statement made by the accused [9 C.R. (3d) 275, 48 C.C.C. (2d) 571]. The ground of the ruling was that the statement made by the accused was a "private communication" which had been intercepted without lawful authorization. Section 178.16 [en. 1973-74, c. 50 s. 2; am, 1976-77, c. 53, s. 10] of the Criminal Code, R.S.C. 1970, c. C-34, renders inadmissible any such statement. I think that the ruling was wrong.

14 Section 178.16 of the Criminal Code reads, so far as is material:

178.16(1) A private communication that has been intercepted is inadmissible as evidence against the originator of the communication or the person intended by the originator to receive it unless

(a) the interception was lawfully made; or

(b) the originator thereof or the person intended by the originator to receive it has expressly consented to the admission thereof.

15 By s. 178.1, the phrase "private communication" [en. 1973-74, c. 50, s. 2] is defined:

'private communication' means any oral communication or any telecommunication made under circumstances in which it is reasonable for the originator thereof to expect that it will not be intercepted by any person other than the person intended by the originator thereof to receive it.

16 The accused had been flown from the small village of Fort Ware to Prince George for the purpose of a polygraph examination that he had agreed to take. Fort Ware is a remote settlement of 250 people. The police were investigating the allegation that the accused had counselled the setting of a forest fire near the village.

17 Unknown to the accused, the office housing the polygraph machine was subject to the scrutiny of a closed circuit television camera, and a microphone was concealed in the ceiling.

18 I quote the events as described by the trial judge [pp. 277-78]:

Upon arriving at the office [the accused and Constable Tollefson] were met by Sergeant Twist, the polygraph operator. After introductions, Sergeant Twist left Constable Tollefson and the accused and went into the polygraph room for approximately five minutes. He came out and then he and the accused went back into the room, and at this time Twist provided the accused with a lengthy card to read, explaining the functions of the machine. The accused sat in the chair and was reading this card. Sergeant Twist and Constable Tollefson went into the adjacent room, where the television was turned on. At that time, sounds could be heard emanating from the room through the system provided, and also the accused could be seen on the television system. While Constable Tollefson was watching the accused, the accused slid out of the chair, got down on his hands and knees, put his arms into the air and said, 'O God, let me get away with it just this once.' This was also heard by Sergeant Twist, who was then placing a tape on the recording machine.

19 After a consideration of the purpose of s. 178.16 of the Criminal Code, the trial judge said [pp. 280-81]:

It is obvious from the evidence that the accused was not told of the hidden devices contained in that room, and the only reasonable inference from all of the evidence is that he thought he was alone and when he entered into this form of, as I call it, 'prayer' he did not intend or expect that his statement would be heard in the manner in which it was.

If this statement, which is crucial, I believe, to the Crown's case, particularly in relation to the issue of corroboration, became evidence, does it not then become the acceptance of something absolutely contrary to the spirit and intent of the legislation?

I can only conclude that the accused intended that his God alone hear this prayer, and not the police.

20 The trial judge then found the statement made by the accused to be a "private communication" and inadmissible.

21 In my opinion, the word "person" is used in the statutes of Canada to describe someone to whom rights are granted and upon whom obligations are placed. There is no earthly authority which can grant rights or impose duties upon God. I can find no reason to think that the Parliament of Canada has attempted to do so in the enactment of sections of the Criminal Code dealing with the protection of privacy.

22 In other words, I accept the proposition of the Crown that the definition of "person" for the purposes of s. 178.1 is "a human being ... having rights or duties recognized by law" (Shorter Oxford English Dictionary on Historical Principles, 3rd ed. (1944), p. 1560). I do not accept the proposition that the word "person" used in s. 178.1 extends beyond the human species.

23 In my view, the statement or prayer of the accused is not made inadmissible by the operation of s. 178.16. There may be other grounds of inadmissibility, but the lack of an authority to intercept the prayer is not such a ground.

24 The argument has been made that a "private communication" need not involve a human recipient. It is said that the test of the protection afforded by the Code is whether the speaker believes that he is conveying ideas or information in privacy; a listener is unnecessary.

25 The verb "intercepts" in s. 178.11 [en. 1973-74, c. 50, s. 2] connotes a speaker and an intended recipient, likewise the provision in s. 178.16(1)(b) for the consent to the admission of the private communication by "the person intended by the originator thereof to receive it". I find no support in the text of Pt. IV. 1 of the Criminal Code for the proposition that the oral utterances of a speaker to the family pet or to his deceased mother (Horvath v. R., [1979] 2 S.C.R. 376, [1979] 3 W.W.R. 1, 7 C.R. (3d) 97, 11 C.R. (3d) 206, 44 C.C.C. (2d) 385, 93 D.L.R. (3d) 1, 25 N.R. 537) are within the protection of privacy provided by that part.

26 There is no legal authority to back up the argument that there need not be a person intended to receive the communication. Indeed, in Goldman v. R. (1979), 13 C.R. (3d) 228, 51 C.C.C. (2d) 1, 30 N.R. 453 (S.C.C.), McIntyre J. said at p. 248: "A 'communication' involves the passing of thoughts, ideas, words or information from one person to another."

27 In my view, the protection of privacy afforded by Pt. IV. 1 of the Criminal Code does not apply to the statement of the accused in this case.

28 I would allow the appeal against acquittal, set aside the verdict, and order a new trial.

Ruling

Appeal allowed; verdict set aside; new trial ordered.

Sources Considered

Cases Considered by majority

• Goldman v. R. (1979), 13 C.R. (3d) 228, 51 C.C.C. (2d) 1, 30 N.R. 453 (S.C.C.) — applied
• Horvath v. R., [1979] 2 S.C.R. 376, [1979] 3 W.W.R. 1, 7 C.R. (3d) 97, 11 C.R. (3d) 206, 44 C.C.C. (2d) 385, 93 D.L.R. (3d) 1, 25 N.R. 537 — referenced

Cases Considered by dissent

• Goldman v. R. (1979), 13 C.R. (3d) 228, 51 C.C.C. (2d) 1, 30 N.R. 453 (S.C.C.) — applied
• R. v. Zoell, Sask. C.A., 14th March 1977 (unreported) — applied
• Woolfolk v. State (1890), 11 S.E. 814 (Georgia S.C.) — distinguished

Statutes

• Criminal Code, R.S.C. 1970, c. C-34, ss. 178.1 "private communication" [en. 1973-74, c. 50, s. 2], 178.11 [en. 1973-74, c. 50, s. 2], 178.16 [en. 1973-74, c. 50, s. 2; am. 1976-77, c. 53, s. 10].
• Protection of Privacy Act, 1973-74 (Can.), c. 50.

Authorities

• Oxford English Dictionary, Compact Edition (1971), vol. 1, p. 700, "communication".
• Shorter Oxford English Dictionary, 3rd ed. (1944), p. 1560, "person".

Case History

Appeal from a decision of Lander Co. Ct. J., 9 C.R. (3d) 275, 48 C.C.C. (2d) 571, from acquittal of charge of setting forest fire.