R. v. Heikel

MCINTYRE J. -- This appeal raises the same questions which were raised in the appeal of R. v. Meltzer, [1989] 1 S.C.R. 000, and, in addition, a ground based on the fact that an authorization to intercept private communications was granted after the arrest of the intended targets.

The appellants were arrested as a result of an investigation by the Edmonton police, carried out in the summer and fall of 1982, and were charged with conspiracy to traffic in narcotics. At trial, the Crown sought to tender wiretap evidence and a voir dire was commenced to determine admissibility. Before the Crown had concluded its evidence on the voir dire, counsel for the defence moved to have the wiretap evidence excluded for violation of the Canadian Charter of Rights and Freedoms . After argument and a two-day adjournment, the trial judge held the wiretap evidence to be inadmissible, not by reason of any consideration of the Charter but by the application of s. 178.16(2) of the Criminal Code , which provides:

No mention of this provision had been made in argument and no reliance had been placed upon it. No opportunity had been given to the Crown to conclude its voir dire or to address the question of the applicability of s. 178.16(2) before the judge ruled the evidence inadmissible. The Crown called no further evidence and the accused were accordingly acquitted. The Alberta Court of Appeal allowed the Crown appeal, set aside the acquittal, and directed a new trial, which at this date has not taken place.

The appellants then launched proceedings by notice of motion in the Alberta Court of Queen's Bench, dated March 22, 1986. They sought an order setting aside the authorizations under which the interceptions referred to above had been made. Various grounds were alleged and the application clearly sought what has become known as a Wilson review of the authorization: see Wilson v. The Queen, [1983] 2 S.C.R. 594. The motion was heard by O'Byrne J. in Chambers. He heard viva voce evidence and extensive argument and dismissed the motion. An appeal was taken to the Alberta Court of Appeal and, on July 30, 1986, was dismissed on the basis that the Court of Appeal had no jurisdiction to entertain the appeal. Laycraft C.J.A., speaking for the Court of Appeal, said:

The appeal to this Court is by leave granted November 6, 1986.

The appellants raised three grounds of appeal in this Court. It was argued that the Court of Appeal was in error, in holding that there was no right of appeal from the refusal of the application to review the authorizations, because it would be supportable as an appeal in a civil matter. It was argued, as well, that this Court's decision in Wilson v. The Queen, supra, should be reconsidered. The appellants associated themselves also with the general argument raised in R. v. Meltzer, to the effect that the Charter required that an appeal be available on a denial of a Charter remedy. These grounds were raised in the case of R. v. Meltzer and disposed of. For the reasons there given, I would conclude that these arguments are without merit.

It was further contended that an authorization may not be given for an interception after the target has been arrested, because to do so would permit the violation of the accused's Charter rights against self-incrimination: to retain counsel, to trial by an independent and impartial tribunal, and to privacy. What the appellants seek in this interlocutory appeal is an in futuro ruling against the admissibility of evidence to be tendered at trial. The issue raised is one to be dealt with at trial, and again for the reasons expressed in R. v. Meltzer this ground must fail.

I would therefore dismiss the appeal.