Supreme Court of Canada

Hawkins v. R., [1980] 2 S.C.R. 353

Date: 1980-06-09

Brian Middleton Hawkins (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1980: June 9.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Evidence—Intercepted private communications—Admissibility—Whether trial judge can review the basis upon which a wiretap authorization was given—Criminal Code, s. 178.13(1), as en. 1976-77 (Can.), c. 53, s. 9.

The appellant and his co-accussed Molis were charged with trafficking in a restricted drug. On the voir dire held at the outset of the trial to determine the admissibility of the evidence obtained through the intercepted private communications made pursuant to an authorization given by Trotter J., the appellant argued before Allan J. that there was no evidence presented to Trotter J. upon which he could exercise his discretion to grant the authorization. Allan J. ruled on January 13, 1978, that he did not perceive any substantive defect of form or irregularity of procedure in the application before Trotter J. or his granting of the authorization.

The appellant set out, inter alia, as a ground of appeal before the Court of Appeal for Ontario, a submission that the trial judge erred in admitting evidence of intercepted communications and in holding that such communications were lawfully intercepted pursuant to valid authorization. On March 5, 1979, the Court of Appeal dismissed the appeal without reference in its reasons to this issue. The Court here dealt only with this ground of appeal, judgment being reserved on the other issues which were raised by the co-accused Molis and adopted by the appellant.

APPEAL from a judgment of the Court of Appeal for Ontario dismissing an appeal from the appellant’s conviction on a charge of trafficking in a restricted drug. The ground of appeal on the issue of the validity of the authorization declared unfounded and judgment reserved on the other

[Page 354]

issues[^1].

Earl Glasner, for the appellant.

John A. Scollin, for the respondent.

The judgment of the Court was delivered orally by

THE CHIEF JUSTICE—We do not need to hear you, Mr. Scollin and Mr. Pomerant. Even assuming that a wiretap authorization under Criminal Code, s. 178.13(1) is reviewable by the trial judge on the ground that there was no evidence of the required pre-conditions for such an authorization, we are of the opinion that we cannot in this case interfere with the concurrent findings that there was some evidence on which Judge Trotter gave the authorization. This ground of appeal therefore fails and judgment is reserved only on the issues argued by counsel for the co-accused Molis and adopted by counsel for Hawkins.

Judgment accordingly.

Solicitor for the appellant: Earl Glasner, Toronto.

Solicitor for the respondent: Roger Tassé, Ottawa.

[^1]: Judgement on the other grounds was delivered on October 7, 1980 (see 1980 SCC 40, [1980] 2 S.C.R. 355) decided concurrently with the appeal of the co-accused Molis (see Molis v. The Queen, 1980 SCC 8, [1980] 2 S.C.R. 356).