R. v. Smith

Parties

Procedural Posture

Criminal Intercept Application / Admissibility/voir Dire (pre Trial Intercept Application)

Legal Issues

1. 1 Whether intercepted communications obtained with consent of Crown agent are admissible
2. 2 Whether portions of intercepts must be edited or excluded as irrelevant or unduly prejudicial
3. 3 Whether silence or absence of response constitutes adoption by an accused

Ratio Decidendi

Relevant intercepted communications are presumptively admissible where statutory authorizations and procedural safeguards are met; defence must demonstrate specific unfair prejudice that outweighs probative value; trial judge has discretion to order editing or exclusion of irrelevant or unduly prejudicial portions, require Crown to establish adoptive responses (verbal or non-verbal) beyond silence, and to limit redundant evidence through voir dire and limiting instructions to protect fair trial rights.

Court Disposition

Application to broadly exclude intercept evidence was rejected; judge established standards and directed that admission of specific tape portions be handled by voir dire and subject to editing or exclusion where probative value is outweighed by prejudice; Crown must identify or prove adoptive responses or call...

Orders

• Crown must, before introducing any tape, identify whether there will be evidence of positive or negative verbal or non-verbal responses to statements by the Crown agent and be prepared to prove them
• Silence alone shall not be treated as adoption of statements by the accused; absent persuasive evidence, such statements are inadmissible against silent participants