The Criminal Code states that a person who knowingly intercepts a private communication is guilty of an offence. Further, intercepted communications are generally inadmissible as evidence in criminal law cases.
The Ontario Court of Appeal’s recent decision of R v. Merritt dealt with the issue of whether a partially unintelligible statement made by an individual accused of first-degree murder, which was intercepted by police, was admissible and could be used as evidence of guilt.
Are intercepted communications admissible as evidence?
Section 184 of the Criminal Code states that anyone who knowingly intercepts a private communication is guilty of an indictable offence resulting in up to five years imprisonment or an offence punishable by summary conviction.
Generally, a person who intercepts a communication is guilty of an offence, and the intercepted statement is inadmissible as evidence. However, section 184.2(1) of the Criminal Code states interception of private communications is allowed if the originator of the communications, or the person who is intended to receive such communications, provides consent and authorizes the interception.
Additionally, a consensual interception is not admissible as evidence if the consenting party is an “agent of the state” unless an application has been made and the court has granted permission.
Couple charged with murdering woman’s ex-husband, former in-laws
In R v. Merritt, the victim and his ex-wife (Melissa Merritt) were involved in an ongoing dispute regarding parenting arrangements for their two children. The victim was found dead in his home on August 23, 2013, with forensic evidence linking Merritt’s new common-law spouse, Christopher Fattore, to the death. The victim’s parents, who were also involved in the parenting dispute, had been killed in the same home.
Fattore was charged with the first-degree murder of all three individuals. He attempted to plead guilty to manslaughter concerning the victim’s death, but his plea was rejected. At trial, he was acquitted of the murder of the victim’s father but was convicted of first-degree murder of the victim and his mother.
The victim’s ex-wife, Merritt, was tried alongside Fattore with respect to the victim and his mother’s murder. The Crown claimed Merritt encouraged Fattore to murder both individuals. She was found guilty of first-degree murder in relation to the victim, her ex-husband.
First-degree murder convictions appealed
Fattore and Merritt both appealed their convictions. Fattore claimed the trial judge erred by allowing a police statement, in which he confessed to the planning and killing of the victim and his mother, into evidence. The Court of Appeal dismissed Fattore’s appeal.
Merritt and Fattore were living in Nova Scotia when they were arrested. Following their arrest, they were brought to the airport by police to be brought back to Ontario. While the parties were left alone, police intercepted their conversation, with much of the discussion deemed “unintelligible”. At trial, the Crown took the position that the intercepted statement was an admission of guilt by Merritt for her ex-husband’s murder.
Merritt did not take issue with the admissibility of the statement. However, she argued the trial judge improperly instructed the jury regarding the statement. She submitted the jury should have been instructed that if they found the statement was partially inaudible, they could not treat it as an admission of guilt. She alleged that the only way to treat it as an admission of guilt was if there was a determination of the statement’s meaning as a whole from the provided context.
Court of Appeal trial judge misdirected the jury on intercepted statement
The Court of Appeal looked to the Supreme Court of Canada’s decision in R v. Schneider, where Justice Malcolm Rowe wrote:
“…if a jury can give meaning to the statement the accused made in a manner that is non‑speculative in light of all of the evidence, testimony about that statement is relevant and admissible unless excluded as a matter of discretion because its probative value is outweighed by the risk of prejudice it presents.”
Justice Malcolm Rowe acknowledged that “juries are likely to give significant weight to confession-like evidence”. As a result, there was a significant risk of the jury misusing the airport statement, which could have “devastating” consequences.
ONCA: Incomplete statements lacking context also lack probative value
The Crown argued Merritt’s appeal should be dismissed as the trial judge’s errors were “trivial and insignificant”. However, the Court of Appeal emphasized that there was no explicit evidence connecting Merritt to the crime. As a result, a properly instructed jury could have been left with reasonable doubt regarding the circumstantial evidence, which could have resulted in a different trial outcome.
The Court of Appeal affirmed that partial or incomplete (or, by extension, unintelligible) statements lacking context also lack probative value. As a result, such statements are inadmissible. Merritt’s appeal was therefore allowed, her conviction was set aside, and a new trial was ordered.
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