R. v. Ouellette

MCINTYRE J. -- This appeal again raises the question of the right to appeal from the refusal of what has been called a Wilson review (Wilson v. The Queen, [1983] 2 S.C.R. 594). On January 30, 1985 an authorization was granted for the interception of the private communications of the appellant, in respect of narcotics offences. On March 1, 1985 a different judge granted an application for an authorization, authorizing the interception of the appellant's private communications concerning bookmaking offences under the Criminal Code, R.S.C. 1970, c. C-34. The Crown commenced proceedings by indictment on October 15, 1985, under ss. 185(1) , 186(1) (d) and 186(1) (a) of the Criminal Code . The appellant pleaded not guilty.

The case came to trial on November 25, 1985. Counsel for the appellant sought the right to cross-examine the deponents on affidavits filed to obtain the authorizations. The Crown objected. Counsel for the appellant sought and obtained an adjournment to enable an application for an order permitting access to the filed affidavits, pursuant to s. 178.14(1)(a)(ii) of the Code, and an order setting aside the wiretap authorizations of the two authorizing judges. On or about August 12, 1986, edited versions of the police affidavits were released to defence counsel, but in reasons delivered the same day His Honour Judge Skipp, of the Vancouver County Court, dismissed the motion to quash each of the authorizations. This judgment was appealed to the Court of Appeal which dismissed the appeal for want of jurisdiction. In doing so, Taggart J.A., speaking with the agreement of Macfarlane and Cheffins JJ.A., said:

In this court, the appellant stated in his factum that the sole issue in the appeal was whether the Court of Appeal erred in declining jurisdiction to hear an appeal on the merits from the authorizing orders. In support of that argument he took the position that the appeal was civil in nature and that jurisdiction to hear it could be found under the provisions of the Court of Appeal Act, S.B.C. 1982, c. 7, for civil appeals, and that the absence of a specific provision in the Criminal Code enabling the appeal was therefore not decisive. He argued as well, as did counsel in the related cases of R. v. Meltzer, [1989] 1 S.C.R. 000, and R. v. Heikel, [1989] 1 S.C.R. 000, that the importance of the interests guaranteed by the Canadian Charter of Rights and Freedoms were such that an appeal on the merits should be provided.

These arguments were raised and disposed of in R. v. Meltzer (judgment given concurrently) and for the reasons given in that case I would reject both arguments and dismiss the appeal.