DATE: 20051214

DOCKET: C41862

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. LINTON CLIFF GYLES (Appellant)

BEFORE:

DOHERTY, SHARPE and LANG JJ.A.

COUNSEL:

Morris Manning, Q.C.

for the appellant

Alex Hrybinsky

for the respondent

HEARD:

RELEASED ORALLY:

December 8, 2005

December 8, 2005

On appeal from the convictions entered by Justice B. Wein of the Superior Court of Justice dated June 25, 2003 and the sentence imposed dated September 10, 2003.

E N D O R S E M E N T

[1] The appellant, a city councilor, was convicted of two charges of accepting bribes to facilitate zoning by-law changes. The facts are fully summarized in the careful and detailed reasons of the trial judge.

[2] There were four main submissions advanced on the conviction appeal.

I

The Joinder Issue

[3] At the commencement of the trial, the Crown presented an indictment containing counts for which the appellant had been committed for trial in two separate preliminary inquiries. The appellant alleges that the trial judge erred in allowing the Crown to join the charges. We are inclined to the view that the Crown did not need the trial judge’s consent to prefer the counts in one indictment: see Criminal Code, s. 574.

[4] Regardless of whether the Crown had the right to prefer one indictment containing all of the counts, the ultimate question is whether the appellant was prejudiced by the joint trial of the counts. At trial, counsel for the appellant agreed that the counts on which the Crown ultimately proceeded could be tried together without prejudicing the appellant. In return, the Crown agreed not to proceed on certain additional counts and to consent to the appellant’s re-election to trial by judge alone. It does not lie with the appellant to now claim that the trial to which he agreed in exchange for certain concessions from the Crown amounted to a miscarriage of justice. In any event, we see no prejudice flowing from the joint trial on the counts relating to the two different complainants.

II

The Wiretap Evidence

[5] The Crown adduced evidence of intercepted conversations between the appellant and one of the individuals from whom the appellant allegedly demanded a bribe. The interceptions were made with the consent of that individual and pursuant to a judicial authorization granted under s. 184.2 of the Criminal Code.

(a) The constitutional issue

[6] The appellant seeks to challenge the constitutionality of s. 184.2 of the Criminal Code. No challenge was made at trial. As a general rule, this court will not entertain constitutional challenges that were not advanced at trial. There are very good reasons for this reluctance. The parties should have an opportunity to develop a full constitutional record and this court should have the benefit of a trial judge’s reasoned analysis of that record before it embarks upon the often difficult task of constitutional adjudication.

[7] The Crown submits that had the issue been raised at trial, it may well have led evidence relevant at least to s. 1 of the Charter. We accept that submission and decline to consider this argument.

[8] We note that the constitutional argument has been rejected by the Quebec Court of Appeal in R. v. Bordage (2000), 2000 6273 (QC CA), 146 C.C.C. (3d) 549 and that even if it were to succeed in this case, there is no basis upon which the evidence could have been excluded under s. 24(2) of the Charter: see R. v. Duarte, [1991] 1 S.C.R 30.

(b) The adequacy of the information relied on to obtain the authorization

[9] Counsel for the appellant submitted that the trial judge erred in holding that the information in the affidavit relied on to obtain the consent authorization was sufficient to grant that authorization.

[10] The trial judge’s function in reviewing the granting of the authorization to intercept the communications was a limited one. It was her responsibility to determine only whether on the affidavit placed before the authorizing judge, that judge could reasonably conclude that the statutory prerequisites to the granting of the authorization had been met. It was not for the trial judge to consider the matter de novo.

[11] The affidavit relied on to obtain the authorization was not in the appeal record. However, as we understand counsel’s position, he accepted that the trial judge accurately summarized the affidavit in her reasons holding that the evidence was admissible. Based on that summary, we are satisfied that the trial judge correctly applied the totality of the circumstances analysis to the affidavit material. We agree with her conclusion that there was sufficient material before the authorizing judge to justify issuing the authorization. We also agree with her conclusion that there was information in the affidavit independent of the informant/complainant that was capable of supporting the allegations of the informant/complainant.

III

The Voice Identification

[12] This issue arose out of certain tape recordings of certain conversations allegedly occurring between the appellant and the complainant, Dhaliwal. Dhaliwal testified that he had surreptitiously recorded these conversations on his own initiative. The appellant initially denied that it was his voice on the tape recordings, but later testified that while it may be his voice on the tape recordings, the recordings must have been fabricated from pieces of various conversations involving the appellant.

[13] The trial judge relied on her comparison of the appellant’s voice when he testified in court with the voice heard on the tape recording in coming to her conclusion that it was the appellant’s voice on the tape recording. In doing so, the trial judge committed no error. As the trier of fact, she was entitled to compare what she heard in court with what she heard on the tape: see R. v. Nikalowski, 1996 158 (SCC), [1996] 3 S.C.R. 1197.

IV

The Similar Fact Evidence

[14] We are not convinced that the trial judge made any error in holding that the evidence relating to each complainant could be admitted on the charge relating to the other complainant. In any event, the trial judge made it clear on several occasions in her reasons for judgment that she was satisfied beyond a reasonable doubt of the appellant’s guilt as it related to each complainant without any reliance on the evidence pertaining to the other complainant. This finding renders her similar fact ruling irrelevant to the ultimate result.

[15] The conviction appeal is dismissed.

V

The Sentence Appeal

[16] We agree with and adopt the trial judge’s reasons for sentence. These offences required a penitentiary sentence. A conditional sentence was, therefore, unavailable at law.

[17] Leave to appeal sentence is granted and the appeal is dismissed.

“Doherty J.A.”

“Robert J. Sharpe J.A.”

“S.E. Lang J.A.”