Supreme Court of Canada

Charette v. R., [1980] 1 S.C.R. 785

Date: 1980-04-22

Jean-Claude Charette (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1980: February 5, 6; 1980: April 22.

Present: Laskin C.J. and Martland, Ritchie, Pigeon, Dickson, Beetz and Mclntyre JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Conspiracy to use forged documents—Evidence—Admissibility—Wiretap evidence—Scope of voir dire—Duty of trial judge in voir dire—Whether evidence as to integrity and continuity of tapes and voice identification should be heard in the absence of the jury—Criminal Code, ss. 178.13, 178.16(4), 326.

Protection of privacy—Interception of private communications—Admissibility of evidence—Criminal Code, ss. 178.13, 178.16(4), 326.

APPEAL from a judgment of the Court of Appeal for Ontario[^1] allowing a Crown appeal from an acquittal on a charge of conspiracy to use forged documents, and ordering a new trial. Appeal dismissed, direction for a new trial confirmed.

Donald B. Bayne, for the appellant.

J.D. Watt, for the respondent.

The judgment of the Court was delivered by

MCINTYRE J.—The appellant, Charette, was charged, along with several others, in an indictment dated October 4, 1976, with conspiracy to use forged documents (cheques) as if they were genuine, contrary to s. 326 of the Criminal Code of Canada. The Crown’s case was entirely dependent upon evidence obtained by the interception of certain private telephone communications which were purportedly made pursuant to an authorization given by a Supreme Court judge under s. 178.13 of the Criminal Code. At the outset of the trial, the trial judge held an extensive voir dire of some eight and-one-half days, during which he

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the entire Crown case covering all questions relating to the obtaining of the interceptions in addition to evidence concerning the validity of the authorization and the procedures followed by the Crown in pursuance of it. At the conclusion of the voir dire, he held that transcripts of the interceptions made by the Crown, as well as certain derivative evidence obtained because of the interceptions, were inadmissible. The Crown case, depending as it did upon such evidence, was therefore destroyed. The jury, which had been sworn before the commencement of the voir dire, was recalled and the trial judge directed a verdict of acquittal since the Crown had led no evidence. The accused were acquitted. The Crown appealed to the Ontario Court of Appeal with the result that a new trial was directed. The reasons of the Court, written by Dubin J.A., have been reported and are to be found as R. v. Parsons et al.[^2]

Before this Court, the appellant raised substantially the same points that were canvassed in the Court of Appeal. Because I am of the view that the appeal must fail and a new trial be ordered, I do not consider it wise or necessary to deal at any greater length with the matter than to express approval of the judgment of the Court of Appeal. I adopt the reasons given in that Court by Dubin J.A. which, in my view, correctly deal with all the issues raised in this case. I would, therefore, dismiss the appeal and confirm the direction for a new trial.

Appeal dismissed, direction for a new trial confirmed.

Solicitors for the appellant: McCann & Bayne, Ottawa.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.

[^1]: (1977), 1977 ONCA 55, 37 C.C.C. (2d) 497.

[^2]: (1977), 1977 ONCA 55, 37 C.C.C. (2d) 497.