R. v. Trang (D.) et al., (2002) 329 A.R. 241 (QB)

• Judge: Binder, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 08, 2002
• Citations: (2002), 329 A.R. 241 (QB);2002 ABQB 990

R. v. Trang (D.) (2002), 329 A.R. 241 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. NO.112

Her Majesty The Queen (respondent) v. De Trang, Tuan Quoc Trang, Binh Quoc Trang, Cuong Quoc Trang, Thao Mai Dao, Phuc Canh Truong, Vi Quoc Tang and Joseph Vincent Kochan (applicants)

(Action No. 016233983Q1; 2002 ABQB 990)

Indexed As: R. v. Trang (D.) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Binder, J.

November 8, 2002.

Summary:

The Crown preferred a direct indictment against several accused, charging them with conspiracy to traffic, participating in a criminal organization and possession of proceeds of crime. The Crown proposed to introduce approximately 4200 intercepted private communications. At issue was whether the Crown complied with its obligations under s. 189(5) of the Criminal Code respecting reasonable notice of intention to adduce intercepted communications.

The Alberta Court of Queen's Bench held that the Crown established on a balance of probabilities that it met its notice obligations.

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 prohibited intercepted private communications from being introduced into evidence unless the Crown had given the accused reasonable notice of its intention to do so, a transcript of the intercepted communication and a statement respecting the time, place and date of the private communication and the parties thereto, if known - The Crown proposed to introduce approximately 4200 communications - At issue was whether the Crown complied with its obligations under s. 189(5) - The Alberta Court of Queen's Bench reviewed the system used by the police for s. 189(5) purposes - The court held that the Crown proved, on a balance of probabilities, service of notices, transcripts and statements, including updated versions, on each accused - In particular, statements required by s. 189(5) were provided in two forms: a master list that recorded the times, date, place and parties of each call and in headers attached to transcripts - Transcripts were provided in hard copies and in audio and electronic forms in a 39 CD set.

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 set out the notice and disclosure requirements where the Crown intended to adduce intercepted private communications in evidence - The Alberta Court of Queen's Bench stated that s. 189(5) was not penal in nature - Rather, it established a statutory rule of evidence that defined a pre-condition for admissibility - Therefore, it had to receive a fair, large and liberal construction in interpretation which best assured the attainment of its objectives - See paragraph 61.

Criminal Law - Topic 5301

Evidence and witnesses - Admissibility of private communications - Notice of intention to offer the communication as evidence - The Crown proposed to tender approximately 4200 intercepted private communications in evidence at the accused's trial - Police officers swore solemn declarations as proof of service of the notices of intention to adduce the intercepted communications and related materials - Some of the solemn declarations used "and/or" when listing the types of materials served and referenced attached lists of actual materials - The Alberta Court of Queen's Bench agreed that if two interpretations were possible, the court should accept the one most favourable to the accused - Further, the court stated that "the inclusion of 'and/or' in any sworn document is highly undesirable and may render that document ineffective. Moreover, such drafting suggests a cavalier approach, evoking an initial reaction of unreliability ..." - However, upon considering the totality of the Crown's evidence on service, the court held that the Crown proved service - The system used by the police was reasonable and reliable - See paragraphs 62 to 74.

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 set out the notice and disclosure requirements where the Crown intended to adduce intercepted private communications in evidence - Section 189(5)(a) required that a transcript of the private communication be provided where it would be adduced in the form of a recording - The Alberta Court of Queen's Bench stated that the transcript did not have to be "an official writing or an official copy" - The Crown could serve transcripts in written, electronic and audio format - Therefore, a copy of the original recording could serve as a transcript and constituted effective notice - Further, an electronic copy of the original recording was not only a transcript of the communication within the meaning of s. 189(5)(a), it was the best way to comply with the meaning and intent of the section - See paragraphs 61, 89 and 99.

Criminal Law - Topic 5375

Evidence and witnesses - Documents and reports - Notice - Service - General - Proof of - The Crown proposed to tender approximately 4200 intercepted private communications in evidence at the accused's trial - Police officers swore solemn declarations as proof of service of the notices of intention to adduce the intercepted communications and related materials - The accused argued, inter alia, that the scope of the solemn declarations went beyond what was contemplated by s. 4(6)(b) of the Criminal Code (proof of service by a police officer) - The Alberta Court of Queen's Bench stated that "all that is required by s. 4(6)(b) is a statement in writing by a peace officer certifying that the subject document was served by him or her. It seems to me that although the subject solemn declarations go further, they nevertheless meet this requirement." - See paragraph 77.

Criminal Law - Topic 5375

Evidence and witnesses - Documents and reports - Notice - Service - General - Proof of - [See third Criminal Law - Topic 5301 ].

Words and Phrases

And/or - The Alberta Court of Queen's Bench stated that "the inclusion of 'and/or' in any sworn document is highly undesirable and may render that document ineffective. Moreover, such drafting suggests a cavalier approach, evoking an initial reaction of unreliability ..." - See paragraph 62.

Cases Noticed:

R. v. Dunn, Lowe, Ross and Yee (1977), 2 Sask.R. 147; 36 C.C.C.(2d) 495 (C.A.), affd. [1979] 2 S.C.R. 1012; 2 Sask.R. 145, refd to. [paras. 3, 61].

R. v. Chevarie, [1985] 3 W.W.R. 394; 58 A.R. 303 (C.A.), refd to. [para. 3].

R. v. Montoute (1991), 113 A.R. 95; 62 C.C.C.(3d) 481 (C.A.), refd to. [para. 3].

R. v. Douglas (1977), 33 C.C.C.(2d) 395 (Ont. C.A.), refd to. [para. 3].

R. v. Tam, [2000] O.J. No. 2185 (C.A.), refd to. [paras. 3, 61].

R. v. Chan (H.M.S.) et al., [2001] B.C.T.C. 1180 (S.C.), refd to. [para. 3].

R. v. Schmitke and Mudry (1981), 60 C.C.C.(2d) 180 (B.C.C.A.), refd to. [paras. 3, 61].

R. v. Steel (R.K.) et al. (1993), 136 A.R. 267 (Q.B.), refd to. [para. 3].

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.), leave to appeal dismissed (1996), 199 N.R. 319; 187 A.R. 318; 127 W.A.C. 318 103 C.C.C.(3d) vi (S.C.C.), refd to. [para. 3].

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

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

R. v. Ma, Ho and Lai (1975), 28 C.C.C.(2d) 16 (B.C. Co. Ct.), affd. (1978), 44 C.C.C.(2d) 537 (B.C.C.A.), refd to. [para. 3].

R. v. Leung (1994), 25 W.C.B.(2d) 284 (B.C.S.C.), refd to. [para. 3].

R. v. Nguyen (T.T.) et al. (2001), 294 A.R. 201 (Prov. Ct.), refd to. [para. 3].

R. v. Kim (W.) et al., [2002] O.T.C. 222 (Sup. Ct.), refd to. [paras. 3, 61].

R. v. Cheung (D.) et al. (2000), 267 A.R. 179 (Prov. Ct.), refd to. [para. 3].

R. v. Charette (1977), 33 N.R. 161; 37 C.C.C.(2d) 497 (Ont. C.A.), affd. [1980] 1 S.C.R. 785; 33 N.R. 158, refd to. [para. 3].

R. v. Parsons - see R. v. Charette.

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.), refd to. [para. 3].

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

R. v. Shalala (R.H.) (2000), 224 N.B.R.(2d) 118; 574 A.P.R. 118 (C.A.), refd to. [para. 3].

R. v. Dass (1977), 39 C.C.C.(2d) 465 (Man. Q.B.), refd to. [paras. 3, 61].

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

R. v. Mathurin (1978), 41 C.C.C.(2d) 263 (Que. C.A.), refd to. [para. 3].

R. v. Good, Schmidt and Winnipeg; R. v. Neubert (1983), 44 A.R. 393; 6 C.C.C.(3d) 105 (C.A.), refd to. [para. 4].

R. v. Henri (1972), 9 C.C.C.(2d) 52 (B.C.C.A.), refd to. [para. 4].

R. v. Douglas, [1977] O.J. No. 388 (C.A.), refd to. [para. 4].

R. v. Northcott (J.E.) (1995), 177 A.R. 94 (Q.B.), refd to. [para. 4].

R. v. Jopp (1981), 26 A.R. 321 (Q.B.), revd. (1981), 40 A.R. 218 (C.A.), refd to. [para. 4].

R. v. Dunlop (1981), 36 A.R. 531 (Q.B.), refd to. [para. 4].

R. v. Harris (1983), 45 A.R. 357 (Q.B.), refd to. [para. 4].

Leveille v. Naw North American Warranty Co., [1993] A.J. No. 1238 (Q.B. Master), refd to. [paras. 4, 52].

Laurentide Mortgage Corp. v. Bond (J.D.) Construction Group Ltd. et al. (1984), 56 A.R. 29 (Q.B. Master), refd to. [paras. 4, 52].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81, refd to. [paras. 4, 49, 61].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, refd to. [paras. 4, 49].

Boudreault v. Barrett et al. (1995), 174 A.R. 71; 102 W.A.C. 71 (C.A.), refd to. [paras. 4, 52].

R. v. Ng, [1996] O.J. No. 666 (Gen. Div.), refd to. [paras. 5, 61].

R. v. Shearing (I.) (2002), 290 N.R. 225; 168 B.C.A.C. 161; 275 W.A.C. 161; 2 C.R.(6th) 213 (S.C.C.), refd to. [paras. 5, 61].

R. v. Handy (J.) (2002), 290 N.R. 1; 160 O.A.C. 201; 1 C.R.(6th) 203 (S.C.C.), refd to. [paras. 5, 61].

R. v. Viscount et al. (1977), 37 C.C.C.(2d) 533 (Ont. G.S.P.), refd to. [para. 5].

R. v. Adamson (1991), 49 O.A.C. 26; 65 C.C.C.(3d) 159 (C.A.), refd to. [paras. 5, 75].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [paras. 5, 75].

R. v. DeJong (J.M.) (1996), 74 B.C.A.C. 146; 121 W.A.C. 146 (C.A.), refd to. [paras. 5, 75].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 4(6)(b), sect. 4(7) [para. 76].

Authors and Works Noticed:

Hubbard, R.W., Brauti, P.M., and Fenton, S.K., Wiretapping and Other Electronic Surveillance: Law and Procedure (2001) (Looseleaf), generally [para. 3].

Counsel:

G.A. Befus and J. Johnson, for the respondent;

E.O. Baker, G. Luther, B.D. Newton, J.D. James, R.G. Mitchell, R.C. Claus and M. Daneliuk, for the applicants.

This matter was heard on September 11, 12, 16 and 30, 2001, and October 1-3, 9, 15-17, 23 and 25, 2002, before Binder, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on November 8, 2002.