R. v. Nguyen (T.T.) et al., (2001) 294 A.R. 201 (PC)

• Court: Provincial Court of Alberta (Canada)
• Case Date: March 05, 2001
• Citations: (2001), 294 A.R. 201 (PC)

R. v. Nguyen (T.T.) (2001), 294 A.R. 201 (PC)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. JL.099

Her Majesty The Queen v. Tan Than Nguyen, Tuan Khong Nguyen, Long Bang Nguyen, Cindy Seunghee Nguyen, Tan Van, Quoc Ahn Troung

(90896218P10101)

Indexed As: R. v. Nguyen (T.T.) et al.

Alberta Provincial Court

Stevenson, A.C.J.P.C.

March 5, 2001.

Summary:

Several accused were charged with drug offences. The Crown sought to produce intercepted telephone communications into evidence. At issue was whether the notices of intention to produce the evidence complied with s. 189(5) of the Criminal Code.

The Alberta Provincial Court held that the notices did not comply with s. 189(5).

Criminal Law - Topic 5301

Evidence and witnesses - Admissibility of private communications - Notice of intention to offer the communication as evidence - The Crown provided the accused with notice of its intention to adduce intercepted telephone communications, including cellular phone calls - For certain calls, the notice did not state the "place" (or location) of either the originator of the call or the recipient but described the place as "unknown" - The Crown served subsequent amended notices - The Alberta Provincial Court held that the notices did not comply with s. 189(5) of the Criminal Code - The places of the calls were actually known to the Crown when the notices were prepared - The places of the cellular calls were reasonably ascertainable - The first notice was deficient - The second notice was partially deficient and might not have complied with the reasonable notice requirements of s. 189(5) and s. 28 of the Canada Evidence Act - The third notice, served three days after the trial proper commenced, did not comply with s. 28 - The Crown's explanation for nondisclosure and late disclosure was not reasonable - The contents of all intercepted communications listed in the first notice with an unknown location were inadmissible.

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 "place" of the private communication - The Alberta Provincial Court stated that "'place' means the locations of the two telephones at opposite ends of the conversations. If it is a line, the 'place' is the address where the land line is installed. If it is a cellular phone, the 'place' description may be more general, i.e., 'This call was serviced by cell towers "A" and "B" located at X (address) and Y (address) respectively, in the city of Calgary, Alberta'." - See paragraphs 26 to 30.

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 Provincial Court held that "if known" in s. 189(5)(b) meant either actual knowledge or reasonably obtainable or ascertainable information - See paragraphs 31 to 63, 102.

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 - The Alberta Provincial Court stated that "'Reasonable Notice' depends on the circumstances and considerations as to 'reasonableness' include: 1) the amount of notice provided to the accused; 2) the amount of time the prosecution has had access to the evidence; 3) the volume of evidence to be tendered; 4) any reasonable explanation regarding a delay of notice; 5) any prejudice which has been created by the amount of notice." - See paragraph 102.

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 Provincial Court stated that there had to be strict compliance with the requirements of s. 189(5) - See paragraph 102.

Words and Phrases

If known - The Alberta Provincial Court discussed the meaning of the phrase "if known" as used in s. 189(5)(b) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 31 to 63.

Words and Phrases

Known - The Alberta Provincial Court 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 31 to 63.

Words and Phrases

Place - The Alberta Provincial Court discussed the meaning of the word "place" as used in s. 189(5)(b) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 26 to 30.

Cases Noticed:

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322, refd to. [para. 19].

R. v. Fasciano - see R. v. Sanelli, Duarte and Fasciano.

R. v. Duarte - see R. v. Sanelli, Duarte and Fasciano.

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 21].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, refd to. [para. 23].

R. v. Bero (C.) (2000), 137 O.A.C. 336 (C.A.), refd to. [para. 24].

R. v. Morello and Young (1987), 83 A.R. 75; 40 C.C.C.(3d) 278 (C.A.), refd to. [para. 26].

R. v. Larson (K.S.) et al. (1996), 192 A.R. 58 (Prov. Ct.), refd to. [para. 37].

R. v. Yeung (W.K.) et al. (2001), 298 A.R. 40 (Q.B.), dist. [para. 41].

Hansard Spruce Mills, Re (1954), 4 D.L.R. 590 (B.C.S.C.), refd to. [para. 46].

Holmes v. Jarrett, [1993] O.J. No. 679 (Gen. Div.), refd to. [para. 47].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City) (1998), 217 A.R. 1 (Q.B.), refd to. [para. 47].

R. v. Northern Electric Co. et al. (1955), 3 D.L.R. 449 (Ont. H.C.), refd to. [para. 48].

R. v. Filby et al. (1981), 63 C.C.C.(2d) 250 (Ont. Co. Ct.), refd to. [para. 66].

R. v. Dunn, Lowe, Ross and Yee (1977), 2 Sask.R. 145; 36 C.C.C.(2d) 495 (C.A.), refd to. [para. 68].

R. v. Schmitke and Mudry (1981), 60 C.C.C.(2d) 180 (B.C.C.A.), refd to. [para. 69].

R. v. Steel (R.K.) et al. (1992), 136 A.R. 252 (Q.B.), refd to. [para. 70].

R. v. Steel (R.K.) et al. (1995), 174 A.R. 241; 102 W.A.C. 241; 102 C.C.C.(3d) 260 (C.A.), dist. [para. 70].

R. v. Proudfoot and Calverley - see R. v. Steel (R.K.) et al.

R. v. Pleich (1980), 55 C.C.C.(2d) 13 (Ont. C.A.), refd to. [para. 75].

R. v. Lee, [1996] O.J. No. 1276 (Gen. Div.), dist. [para. 82].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81; 82 C.C.C.(3d) 193, refd to. [para. 92].

R. v. Allen (No. 4) (1979), 47 C.C.C.(2d) 55 (Ont. H.C.), refd to. [para. 100].

R. v. Araujo (A.) et al. (2000), 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257 (S.C.C.), refd to. [para. 100].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 189(5) [para. 9].

Authors and Works Noticed:

Donald Marshall Jr., Prosecution Report - see Nova Scotia, Royal Commission on the Donald Marshall, Jr., Prosecution Report, Findings and Recommendations.

Hubbard, R.W., Wiretapping and Other Electronic Surveillance: Law and Procedure (2000), pp. 1.1-3 [para. 17]; 1.20, 1.21 [para. 20]; 11-15 [para. 79]; 11-16 [para. 80]; ss. 5, 6.5.2 [para. 28].

Nova Scotia, Royal Commission on the Donald Marshall, Jr., Prosecution Report, Findings and Recommendations (1989), vol. 1 [para. 22]; p. 342 [para. 23].

Counsel:

K. McLeod and L. Pitcairn, for the Crown;

C. Stewart for Tan Than Nguyen and Cindy Seunghee Nguyen;

P. Horner, for Tuan Khong Nguyen;

D. Gibbons, Q.C., and M. Nathanson, for Long Bang Nguyen;

J. Bascom, Q.C., for Tan Van.

This matter was heard before Stevenson, A.C.J.P.C., of the Alberta Provincial Court, who delivered the following decision on March 5, 2001.