On June 10th, the New Brunswick Court of Appeal declined to exclude a recorded telephone conversation in which a lawyer charged with obstruction of justice allegedly counseled a client’s wife to destroy evidence.
The RCMP civilian agent who listened to the call pursuant to an authorization to intercept missed the first part of the call in which the accused identified himself as a lawyer. She listened, heard the caller make statements she considered to be obstructive in nature and conveyed what she had heard to her supervisor. When she played the recording back to the supervisor, they both heard the first part of the call and realized the caller was a lawyer. In breach of the terms of the authorization, they nonetheless continued to listen and only then sealed the communication.
The Court of Appeal held that the RCMP breached section 8 of the Charter by failing to stop and seal the recording as soon as it was clear the call was from a lawyer. It declined, however, to exclude the recording from evidence. In doing so, the Court was influenced by the fact that the communication was heard in in full through inadvertence and that it was not, in fact, subject to solicitor-client privilege.