Report No. 94
7.12. Canadian law-Section 178.16, Canadian Criminal Code.-
With this, one may contrast the statutory provision in Canada. Section 178.16 inserted in 1977 in the Criminal Code (so far as is material) reads as under1:-
"178.16. (1) A private communication that has been intercepted is inadmissible as evidence against the originator of the communication or the person intended by the originator to receive it unless-
(a) the interception was lawfully made; or
(b) the originator thereof or the person intended by the originator to receive it has expressly consented to the admission thereof; but evidence obtained directly or indirectly as a result of information acquired by interception of a private communication is not inadmissible by reason only that the private communication is itself inadmissible as evidence.
(2) Notwithstanding sub-section (1), the Judge or magistrate presiding at any proceedings may refuse to admit evidence obtained directly or indirectly as a result of information acquired by interception or a private communication that is itself inadmissible as evidence where he is of the opinion that the admission thereof would bring the administration of justice into disrepute.
(3) Where the judge or magistrate presiding at any proceedings is of the opinion that a private communication that, by virtue of sub-section (1), is inadmissible as evidence in the proceedings-
(a) is relevant to a matter at issue in the proceedings, and
(b) is inadmissible as evidence therein by reason only of a defeat of form or an irregularity in procedure, not being a substantive defect or irregularity, in the application for or the giving of the authorisation under which such private communication was intercepted, he may, notwithstanding sub-section (1), admit such private communication as evidence in the proceedings."
1. Section 178.16, Canadian Criminal Code, cited in Stanley Schiff Evidence in the Litigation Process, (1978), Vol. 2, p. 961.