R. v. Lam (T.K.) et al., 2004 ABQB 333

• Judge: Burrows, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 28, 2004
• Citations: 2004 ABQB 333;(2004), 355 A.R. 378 (QB)

R. v. Lam (T.K.) (2004), 355 A.R. 378 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. MY.037

Her Majesty the Queen v. Thanh Ke Lam, Thien Cao Nguyen, Brian Trieu and Blaz Ceko (accused)

(016168007Q2; 2004 ABQB 333)

Indexed As: R. v. Lam (T.K.) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Burrows, J.

April 28, 2004.

Summary:

The Crown served notice on the accused under s. 189 of the Criminal Code that it intended to offer evidence gathered pursuant to wiretap authorizations. The accused challenged the Crown's compliance with certain aspects of s. 189(5). At issue was the interpretation of "if known" in s. 189(5)(b) and who had the onus of proving compliance with s. 189(5).

The Alberta Court of Queen's Bench determined the issues accordingly.

Criminal Law - Topic 5301

Evidence and witnesses - Admissibility of private communications - Notice of intention to offer the communication as evidence - Section 189(5) of the Criminal Code required that reasonable notice of intention to produce an intercepted private communication be provided to an accused - In particular, s. 189(5)(b) required that the accused be provided with a statement respecting, inter alia, the "time, place and date of the private communication and the parties thereto, if known" - The Alberta Court of Queen's Bench stated that "the word 'known' in s. 189(5)(b) does not mean 'could have known' or 'should have known'. The section does not require the Crown to obtain information as to the time, place and date of the private communication and the parties thereto, if at the time of the notice it does not have that information, in order to satisfy the requirement of s. 189(5)(b)." - See paragraphs 7 to 13.

Criminal Law - Topic 5301

Evidence and witnesses - Admissibility of private communications - Notice of intention to offer the communication as evidence - Section 189(5) of the Criminal Code required that reasonable notice of intention to produce an intercepted private communication be provided to an accused - In particular, s. 189(5)(b) required that the accused be provided with a statement respecting, inter alia, the "time, place and date of the private communication and the parties thereto, if known" - The Alberta Court of Queen's Bench stated that "the onus is on the party who intends to adduce the evidence obtained through the interception of the private communication to show that the requirements of the section have been met" - See paragraph 14.

Words and Phrases

Known - The Alberta Court of Queen's Bench discussed the meaning of the word "known" as used in the phrase "if known" within s. 189(5)(b) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 7 to 13.

Cases Noticed:

R. v. Yeung (W.K.) et al. (2001), 298 A.R. 40 (Q.B.), affd. (2002), 317 A.R. 158; 284 W.A.C. 158 (C.A.), folld. [paras. 9, 10].

R. v. Ly (T.Q.) - see R. v. Yeung (W.K.) et al.

R. v. Trang (D.) et al. (2002), 329 A.R. 241 (Q.B.), refd to. [para. 17].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 189(5)(b) [para. 3].

Authors and Works Noticed:

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (2nd Ed. 1999), p. 196 [para. 16].

Counsel:

Donna Valgardson, Q.C., and Michelle C. Doyle, for the Crown;

David N. Kamal, for Lam;

Arnold E.F. Piragoff, Q.C., for Nguyen;

Kevin E. Moore, for Trieu;

Patrick Miranda, for Ceko.

This matter was heard on April 28, 2004, by Burrows, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following oral reasons on the same date.