Un juge peut mettre l'enregistrement audio d'une audience si celui-ci contient une communication privilégiée entre l'accusé et son avocat captée par inadvertance

R. v. Higham, 2007 CanLII 20103 (ON SC)

Lien vers la décision

[11]      I find as a fact on all the evidence before me that Mr. Higham was not aware that the recording equipment being used to record the evidence of witnesses was capable of recording his voice or that of Mr. Nipitella with respect to any conversations the two accused had with each other in the prisoner’s dock or any statements that Mr. Higham or Mr. Nipitella may have made.

[12]      This is not a situation where an accused is making some statement from the dock which is intended to form part of the court record.  This is a private conversation between two accused persons.  In my view Mr. Higham had a reasonable expectation of privacy that the State would not be recording his conversations with Mr. Nipitella anymore than the State would be recording his conversation with his lawyer.

[13]      I am mindful of the evidence of Cindy Liscombe that, in her view, the microphone was visible to persons within the prisoner’s box and that she observed Mr. Higham and Mr. Nipitella touching and playing with the microphone on several occasions.  Quite apart from the fact there is no evidence before me as to when this activity referred to above happened in relation to the statements of Mr. Higham that are in issue before me, I am not convinced that merely touching and playing with the microphone establishes that Mr. Higham knew his statements in the prisoner’s dock to Mr. Nipitella would be recorded.

[14]      If anything playing and touching the microphone suggests that neither Mr. Higham nor Mr. Nipitella felt that the microphone was live or was there for the purposes of recording their conversations.  It would be reasonable to assume the microphone was there simply for amplification in the event they had anything to say publicly to the court.

[19]      I am of the view and so find that in these circumstances Mr. Higham had a reasonable expectation of privacy that his statements or conversations while in the prisoner’s dock would remain private.  In my view in these circumstances to unseal and play the tapes would result in a violation of Mr. Higham’s s. 8 Charter rights to be secure against unreasonable search and seizure in light of the fact that the recordings of the conversations of Mr. Higham and Mr. Nipitella were not authorized by law.

[20]      In addition, I am of the view that converting the courtroom into a vehicle for police surveillance is an improper use of the court process and a violation of the accused’s s. 7 Charter rights.  While s. 7 does not preclude the use of all police “tricks”, I am of the view and so find that in these circumstances the use of the court recording mechanisms to monitor the private conversations and statements of Mr. Higham in the prisoner’s dock is an improper use of State power and violates his rights under s. 7 of the Charter.

[21]      The scope of s. 24 (1) extends to a preventative function respecting a threatened violation of a Charter right.  See Operation Dismantle, et al v. The Queen (1985), 1985 CanLII 74 (SCC), 18 D.L.R. (4^th) 481 (S.C.C.).  In this case I am of the view that Mr. Higham has demonstrated on a balance of probabilities that to unseal and play the tapes in questions would result in a real and imminent breach of his Charter rights under s. 7 and s. 8  of the Charter.

[22]      Accordingly, I order that the tapes filed as Exhibit B on this voir dire shall remain sealed until further order of this court or a judge of the Court of Appeal for Ontario.