Can the police use excluded wiretaps at trial?

You’ve been charged with a criminal offence, such as conspiracy to traffic cocaine. The police used an agent and a wiretap to gather incriminating evidence against you. In doing so, they breached your Charter rights. The presiding judge rules that the wiretaps should be excluded, but that the agent can still give evidence.

Can the agent use those wiretaps in court? The short answer is yes.

Agents can use transcripts of the wiretaps to refresh their memory in order to give evidence at trial. Practically speaking, the contents of the wires then make their way into evidence through the agent, which subverts the exclusionary remedy under the Charter.

How does this make any sense? Why can the police read wire transcripts that a judge explicitly excluded? The Supreme Court’s answer to that questions is very nuanced. In a case released in 2002, R v Fliss, the Court ruled that agents who did not have a recollection of events are entitled to refresh their memories from whichever instrument they choose, including inadmissible wiretap transcripts. What is critical is that they give evidence from their present memory now refreshed and not from the recording that refreshed their memory. Agents are permitted to review the transcripts since the source of their evidence is their refreshed memory, not the transcripts themselves.

Fliss remains the law in Canada today. However, the Court utilized a rigid analytical approach that left certain questions open-ended. For instance, if an agent’s evidence is virtually identical to that of the wiretaps, under what circumstances could a judge exclude both the wires and the agent’s viva voce evidence? There is very little case law suggesting that both the wiretaps and the agent’s evidence ought to be excluded, but certain decisions imply that courts are alive to that possibility.

So, what does a successful case look like? The starting point remains a faulty wiretap authorization, but the wiretap would have to be the catalyst for the agent’s involvement in the investigation. A judge would need to be satisfied that the police would not have otherwise utilized an agent but for the authorization. If that were the case, then the agent’s evidence would be a direct product of the deficient wiretap and should be excluded along with the wires themselves.

While this area of the law is settled for the moment, there is still room for lawyers to make novel arguments like this one


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