One of the problems seems to be that the mere act of recording a person who has been cautioned/Miranderized is a problem – it should not be: both boil down to “If you say anything, we’ll take note of it.”
If he had not been cautioned/Miranderized, is it admissible anyway?
The next is that Protection of Privacy Act, 1973-74 (Can.), c. 50, s. 2. A "private communication" is defined by s. 178.1 as follows: "'private communication' means any oral communication or any telecommunication made under circumstances in which it is reasonable for the originator thereof to expect
that it will not be intercepted by any person other than the person intended by the originator thereof to receive it."
Let’s say that the accused is sane but talks to himself – is that a communication? He intended to receive the message himself. What if he had his dog with him and spoke to that?
The dissenting judge Nemetz C.J.B.C.
ignored the question of whether God is a person and makes good points. He said:
(1) 'private communication' means any oral communication ...
(2) made under circumstances in which it is reasonable for the originator thereof to expect that it will not be intercepted by any person other than the person intended by the originator thereof to receive it.
10 The important question is whether the statement can be considered to be a "communication" at all. The Oxford English Dictionary, Compact Edition (1971), vol. 1, p. 700, defines "communication" as follows:
2. spec. The imparting, conveying, or exchange of ideas, knowledge, information, etc. (whether by speech, writing or signs).
[It is] clear that an exchange is unnecessary and that it is the act of imparting which is essential […] Did Davie believe
that he was imparting ideas, information, etc.? The trial judge said that he did, and that finding is not challenged. He believed he was communicating with a Being who would hear his supplication. Was that belief reasonable? It is surely impossible to suggest that it was not.
I conclude, therefore, that the statement was an "oral communication" and, it follows, a "private" one.
11 Accordingly, it is not necessary, in my view, to decide whether "person" includes a theological Person or is limited to natural and artificial persons. It is sufficient if the statement is a communication in that the originator reasonably believes that he is imparting ideas, knowledge, information, etc., in circumstances which give rise to a reasonable expectation of privacy. It is then a "private communication".Nemetz C.J.B.C.
is the Chief Justice of BC and no fool. Personally, I think he interpreted the law correctly - the law opposes bugging and secret filming. However, I think from the point of view of Justice, the other two were right.