Case Report – BCCA telephone recording case deals with spousal privilege and the reasonable expectation of privacy concept

The British Columbia Court of Appeal issued a judgement on July 21st with two findings of note – one on the whether spousal privilege applies to communications intercepted by a third-party and another on the protection of information subject to a reduced yet reasonable expectation of privacy.

The matter involved recordings of telephone calls made from a correctional facility by an accused person, some to his spouse. The facility received a production order, listened to the recordings for the first time and turned them over to the Crown. They apparently contained statements favorable to the theory on which the Crown’s prosecution was based but no “direct evidence of criminal activity.” The accused person argued that the recordings were inadmissible based on spousal privilege and section 8 of the Charter.

The Court first rejected the spousal privilege claim. It held that, under the Canada Evidence Act, spousal privilege does not preclude a third-party from giving evidence about statements made from one spouse to another. The one exception, explained the Court, is for private communications between spouses that are intercepted by a lawful wiretap – a result derived from a provision the Criminal Code that deems intercepted communications to maintain their privileged status. The Court held that the deeming provision (section 189(6)) did not apply in the circumstances.

The Court then upheld the section 8 claim. It held that the production order served on the facility was invalid because of insufficient grounds and held that disclosure by the facility to the Crown was therefore made in breach of the accused person’s reduced but nonetheless reasonable expectation of privacy. In reaching this finding, the Court gave effect to the regime for recording and reviewing inmate telephone calls authorized under the British Columbia Correction Act, which recognizes a facility’s right to record, review and disclose calls within certain parameters. This privacy-security balancing regime led the Court to apply the reasonable expectation of privacy concept in a more nuanced manner than the “all or nothing” manner in which it is often applied.

R. v. Siniscalchi, 2010 BCCA 534 (CanLII).