SUPREME COURT OF CANADA

Wilson v. The Queen, 1983 CanLII 35 (SCC), [1983] 2 SCR 594

Date: 1983-12-15

James Stephen Wilson Appellant;

and

Her Majesty The Queen Respondent.

File No.: 16931.

1983: March 14; 1983: December 15.

Present: Laskin C.J. and Dickson, Estey, McIntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Courts — Collateral proceedings — Superior court wiretap authorizations — Evidence obtained pursuant to authorizations found inadmissible by inferior court — Whether or not superior court can be collaterally attacked in any court and in particular by an inferior court — Criminal Code, R.S.C. 1970, c. C-34, ss. 178.12(1)(b),(g), 178.13(1)(b), 178.14, 178.16(1)(a), 178.16 (3)(b).

Appellant was acquitted in provincial court on the collapse of the Crown's case following the judge's ruling that the Crown's wiretap evidence was inadmissible as illegally obtained. The ruling was based on the information obtained from the cross-examination of the deponent of the affidavits that were made in support of the applications for authorization to wiretap in the Court of Queen's Bench. The authorizations were valid on their face and the trial judge did not open the sealed packets. The Manitoba Court of Appeal allowed an appeal from the acquittals and ordered a new trial. At issue here is whether or not a judge of an inferior court can look behind the apparently valid order of a superior court and rule the evidence obtained under that order inadmissible.

Held: The appeal should be dismissed.

Per Laskin C.J. and Estey and McIntyre JJ.: A court order that has not been varied or set aside on appeal cannot be collaterally attacked and must receive full effect according to its terms. This rule has not been altered with respect to wiretap authorizations by Part IV.1 of the Code except to the extent that a trial judge must consider the admissibility of wiretap evidence, but without going beyond the face of the authorization. In the absence of the right of appeal from an authorization, and given the inapplicability of certiorari, any application for review of an authorization must be made to the court that made it. As it is not always practical or

[page 595]

possible to apply for review to the same judge who made the order, another judge of the same court can review an ex parte order if: 1) he has the power to discharge the order, 2) he acts with the consent of, or in the event of the unavailability of, the judge who made the order, and 3) he hears the motion de facto as to both the facts and the law involved. A judge reviewing a wiretap authorization must, in addition, not substitute his discretion for that of the authorizing judge.

Per Dickson and Chouinard JJ.: Subsections 178.16(1) and 176.16(3) in combination require a trial judge to go behind an apparently valid authorisation to consider its validity and therefore have modified the rule that a court order not be impeached except by appeal, by action to set aside or by prerogative writ. These subsections make no distinction between information on the face of the record and information dehors the record, and to restrict a trial judge to considering only the former as a matter of statutory interpretation would unnecessarily fetter his ability to determine admissibility. Section 178.16, too, makes no suggestion as to review of an authorization by anyone but the trial judge and s. 178.14 contemplates that the packet be opened by any judge of a superior court of criminal jurisdiction or by a judge as defined by s. 482. The common law doctrine that the authorization could only be reviewed by the Court making it, and preferrably by the actual judge, was therefore overridden. Further, it was implicit in the language of ss. 176.16(1) and (3)(b) that an inferior court judge could attack a superior court's authorization.

Prima facie evidence of fraud, non-disclosure or misleading disclosure are valid reasons for opening the sealed packet. Once a foundation for opening the packet is established, a trial judge within the contemplation of s. 178.14 can open the packet and make a full review for compliance with Part IV.1. Section 178.16(3)(b) grants a discretion to cure non-substantive defects, but substantive defects in the application render the evidence inadmissible. The trial judge cannot decide that he would have exercised his discretion differently from the authorizing judge.

[page 596]

The deponent of an affidavit supporting an authorization request can be cross-examined to determine if the pre-conditions of s. 178.13(6) have been met. The questions can be put so as not to disclose information considered confidential by the judge and yet uncover any basis on which to argue invalidity.

The trial judge here was not authorized to order the opening of the sealed packet. The trial should have been adjourned to allow an application under s. 178.14 for an order to open the packet and the judge acting under that section would determine if the packet should be opened. The trial judge, however, would examine the packet's contents and decide if the authorization was valid. The ruling by the trial judge that admitting evidence obtained from unlawful wiretaps would bring the administration of justice into disrepute was irrelevant here. Section 178.16(2) does not deal with primary evidence of this kind but rather with derivative evidence.

Poje v. Attorney General for British Columbia, 1953 CanLII 34 (SCC), [1953] 1 S.C.R. 516, affirming sub nom. Canadian Transport (U.K.) Ltd. v. Alsbury, 1952 CanLII 218 (BC CA), [1953] 1 D.L.R. 385; Royal Trust Co. v. Jones, 1961 CanLII 50 (SCC), [1962] S.C.R. 132; Re Donnelly and Acheson and The Queen (1976), 1976 CanLII 1351 (AB SCTD), 29 C.C.C. (2d) 58, considered; Pashko v. Canadian Acceptance Corp. Ltd. (1957), 1957 CanLII 296 (BC CA), 12 D.L.R. (2d) 380; Gibson v. Le Temps Publishing Co. (1903), 6 O.L.R. 690; Clark v. Phinney (1896), 1896 CanLII 74 (SCC), 25 S.C.R. 633; Maynard v. Maynard, 1950 CanLII 3 (SCC), [1951] S.C.R. 346; Badar Bee v. Habib Merican Noordin, [1909] A.C. 615; R. v. Welsh and lannuzzi (No. 6) (1977), 1977 CanLII 1215 (ON CA), 32 C.C.C. (2d) 363; R. v. Wong (No. 1) (1976), 1976 CanLII 1354 (BC SC), 33 C.C.C. (2d) 506; Charette v. The Queen, 1980 CanLII 31 (SCC), [1980] 1 S.C.R. 785, affirming R. v. Parsons (1977), 1977 CanLII 55 (ON CA), 37 C.C.C. (2d) 497; Dickie v. Woodworth (1883), 1883 CanLII 51 (SCC), 8 S.C.R. 192; Stewart v. Braun, 1924 CanLII 270 (MB KB), [1924] 3 D.L.R. 941; Re Stewart and The Queen (1976), 1976 CanLII 644 (ON SC), 30 C.C.C. (2d) 391, affirming (1975), 1975 CanLII 688 (ON SC), 23 C.C.C. (2d) 306; Re Turangan and Chui and The Queen (1976), 32 C.C.C. (2d) 254, affirming (1976), 1976 CanLII 1405 (BC SC), 32 C.C.C. (2d) 249; Bidder v. Bridges (1884), 26 Ch. D. 1; Boyle v. Sacker (1888), 39 Ch. D. 249; Gulf Islands Navigation Ltd. v. Seafarers' International Union (1959), 1959 CanLII 272 (BC CA), 18 D.L.R. (2d) 625; R. v. Dass (1979), 1979 CanLII 2923 (MB CA), 47 C.C.C. (2d) 194; R. v. Gill (1980), 1980 CanLII 736 (BC CA), 56 C.C.C. (2d) 169; R. v. Ho (1976), 1976 CanLII 1334 (BC SC), 32 C.C.C. (2d) 339; Re Miller and Thomas and The Queen (1976), 1975 CanLII 1216 (BC SC), 23 C.C.C. (2d) 257; Goldman v. The Queen, 1979 CanLII 60 (SCC), [1980] 1 S.C.R. 976; R. v. Miller and Thomas (No. 4) (1975), 1975 CanLII 1310 (BC SC), 28 C.C.C. (2d) 128; R. v. Newall (No.1) (1982), 1982 CanLII 276 (BC SC), 67 C.C.C. (2d) 431; R. v. Johnny and Billy (1981), 1981 CanLII 374 (BC SC), 62 C.C.C. (2d) 33;

[page 597]

R. v. Bradley (1980), 1980 CanLII 2927 (QC CS), 19 C.R. (3d) 336; Re Royal Commission Inquiry into the Activities of Royal American Shows Inc. (No.3) (1978), 1978 CanLII 2379 (AB SCTD), 40 C.C.C. (2d) 212; Re Zaduk and The Queen (1977), 1977 CanLII 1911 (ON SC), 37 C.C.C. (2d) 1; R. v. Haslam (1977), 1977 CanLII 1991 (NL SC), 36 C.C.C. (2d) 250; Re Regina and Kozak (1976), 1976 CanLII 1399 (BC SC), 32 C.C.C. (2d) 235; R. v. Kalo, Kalo and Vonschober (1975), 1975 CanLII 1328 (ON SC), 28 C.C.C. (2d) 1; R. v. Blacquiere (1980), 1980 CanLII 2934 (PE SCTD), 57 C.C.C. (2d) 330; Re Regina and Collos (1977), 1977 CanLII 1948 (BC CA), 37 C.C.C. (2d) 405, reversing on other grounds (1977), 1977 CanLII 1951 (BC SC), 34 C.C.C. (2d) 313; R. v. Robinson (1977), 39 C.R.N.S. 158; R. v. Hollyoake (1975), 1975 CanLII 1341 (ON CJ), 27 C.C.C. (2d) 63; R. v. Crease (No. 2) (1980), 1980 CanLII 2967 (ON CA), 53 C.C.C. (2d) 378; R. v. Cardoza (1981), 1981 CanLII 3329 (ON SC), 61 C.C.C. (2d) 412; R. v. Gabourie (1976), 1976 CanLII 1336 (ON CJ), 31 C.C.C. (2d) 471; R. v. Hancock and Proulx (1976), 1976 CanLII 1364 (BC CA), 30 C.C.C. (2d) 544, referred to.

APPEAL from a judgment of the Manitoba Court of Appeal, 1982 CanLII 3728 (MB CA), [1982] 2 W.W.R. 91, 13 Man. R. (2d) 155, 65 C.C.C. (2d) 507, allowing an appeal from appellant's acquittals by Dubienski Prov. Ct. J. Appeal dismissed.

Robert L. Pollack, for the appellant.

John D. Montgomery, Q.C., for the respondent.

The judgment of Laskin C.J. and Estey and McIntyre JJ. was delivered by

MCINTYRE J.—The appellant was charged with nine counts relating to betting. He was tried before Dubienski, Provincial Court Judge in the Manitoba Provincial Court. The Crown's case depended on evidence obtained by wiretap for which it had procured four authorizations under the provision of Part IV.1 of the Criminal Code from judges of the Court of Queen's Bench of Manitoba. Each authorization contained the following words:

AND UPON hearing read the affidavit of Detective Sergeant Anton Cherniak;

AND UPON being satisfied that it is in the best interests of the administration of justice to grant this authorization and that other investigative procedures have been tried and have failed, that other investigative procedures are unlikely to succeed, and that the urgency of the matter is such that it would be impractical to carry out the investigation of the undermentioned offences using only other investigative procedures;

[page 598]

At trial, on cross-examination of the police officer Cherniak who is referred to in the authorizations, evidence was given that Cherniak had had the sole direction of the investigation and that he had made the applications for the authorizations. He said that the interceptions were made under the authorizations, that they were the sole investigations made and that no other investigation was done or ordered by him after the first authorization. He was unaware of any other investigating steps. It is evident that counsel for the appellant by this line of cross-examination was attempting to ascertain whether or not the above-quoted words from the authorization were true and whether the prescriptions of s. 178.13(1)(b) of the Code had been satisfied. That section reads:

178.13 (1) An authorization may be given if the judge to whom the application is made is satisfied.

(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

No objection was taken by the Crown to this line of examination.

On the basis of the cross-examination of the police officer, the trial judge made the following finding:

"No other investigative procedures had been tried and failed, that there was no evidence that investigative procedures were likely to succeed, nor that there was any urgency."

As a result, the trial judge held that the interceptions of the private communications of the appellant had not been lawfully made as required by s. 178.16 of the Criminal Code and he ruled the evidence obtained by the wiretaps inadmissible. The case for the Crown collapsed and the appellant was acquitted on all counts.

On appeal to the Manitoba Court of Appeal, the Crown argued that the provincial court judge was without jurisdiction to go behind the authorizations and thereby make a collateral attack upon the order of a superior court. The appeal was

[page 599]

allowed and a new trial was ordered. Monnin J.A. (as he then was), with whom Matas J.A. concurred, held that an authorization granted by a superior court judge could not be collaterally attacked in a provincial court. O'Sullivan J.A., concurring in the result, went further and said that: "In my opinion, where there is an authorization granted by a superior court of record, it cannot be collaterally attacked in any court and it cannot be attacked at all in an inferior court." A further argument was advanced by the appellant Wilson that there was no evidence of proper notice of intention to adduce wiretap evidence as required under s. 178.16(4) of the Code. This argument was rejected in the Court of Appeal and, on an acknowledgment that there was some five months' notice given, it was rejected in this Court as well. The only remaining issue then is whether or not the trial judge erred in law in refusing to admit the wiretap evidence.

In the Manitoba Court of Appeal, Monnin J.A. said:

The record . of a superior court is to be treated as absolute verity so long as it stands unreversed.

I agree with that statement. It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not be attacked collaterally—and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment. Where appeals have been exhausted and other means of direct attack upon a judgment or order, such as proceedings by prerogative writs or proceedings for judicial review, have been unavailing, the only recourse open to one who seeks to set aside a court order is an action for review in the High Court where grounds for such a proceeding exist. Without attempting a complete list, such

[page 600]

grounds would include fraud or the discovery of new evidence.

Authority for these propositions is to be found in many cases. A particularly clear statement of the law, together with reference to many of the authorities, is to be found in Canadian Transport (U.K.) Ltd. v. Alsbury, 1952 CanLII 218 (BC CA), [1953] 1 D.L.R. 385, a judgment of the British Columbia Court of Appeal. In that case striking employees picketed the wharf where a vessel was waiting to take on cargo. The shipowner secured an ex parte injunction in the Supreme Court restraining the defendant and others from picketing. The injunction was disobeyed and contempt proceedings were commenced against the defendant. At first instance before the Chief Justice of the Supreme Court of British Columbia the defendants contended that an attachment for contempt should not issue for the reason that the injunction order, made by a judge of the Supreme Court, was a nullity and could not therefore form the basis for a contempt order. This collateral attack was rejected by the Chief Justice, attachment issued, and penalties for contempt including fines and imprisonment were imposed. In the Court of Appeal the appeal was dismissed with one dissent and, at p. 406, Sidney Smith J.A. said:

First it was said that the injunction order of Clyne J. was a nullity that could be ignored with impunity, and could form no basis for contempt proceedings. Many objections were levelled at this learned Judge's order, chief among them being: (1) that it was based on improper and inadmissible evidence; (2) that the injunction was in conflict with the Trade-unions Act and the Laws Declaratory Act; (3) that the injunction was in permanent form and no Court could grant a permanent injunction ex parte.

To this the general answer is made that the order of a Superior Court is never a nullity; but, however wrong or irregular, still binds, cannot be questioned collaterally, and has full force until reversed on appeal. This seems to

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be estabished by the authorities cited by counsel for the Attorney-General, viz., Scott v. Bennett (1871), L.R. 5 Hi. 234 at p. 245; Revell v. Blake (1873), L.R. 8 C.P. 533 at p. 544; Scotia Construction Co. v. Halifax, 1934 CanLII 80 (SCC), [1935] 1 D.L.R. 316, S.C.R. 124; and to these I might add Re Padstow (1882), 20 Ch.D. 137 at p. 145, and Hughes v. Northern Elec. etc. Co. (1915), 1915 CanLII 606 (SCC), 21 D.L.R. 358 at pp. 362-3, 50 S.C.R. 626 at pp. 652-3. To these general authorities may be added the more specific line of cases holding that an injunction, however wrong, must be obeyed until it is set aside, as shown by the authorities cited in Kerr on Injunctions, 6th ed., p. 668, and 7 Hals., p. 32, which include the authoritative decision in Eastern Trust Co. v. MacKenzie, Mann & Co., 1915 CanLII 424 (UK JCPC), 22 D.L.R. 410 at pp. 418-9, [1915] A.C. 750 at p. 761, where a party was held to be rightly committed for disobeying an injunction, later set aside. Other authorities for holding that an injunction, though wrong, must be obeyed till set aside, are Leberry v. Braden (1900), 7 B.C.R. 403, and Bassel's Lunch Ltd. v. Kick, 1936 CanLII 104 (ON CA), [1936], 4 D.L.R. 106 at p. 110, O.R. 445 at p. 456, 67 Can. C.C. 131 at p. 135.

Bird J.A., who wrote a separate concurring judgment, made the following comments, at p. 418:

The order under review is that of a Superior Court of Record, and is binding and conclusive on all the world until it is set aside, or varied on appeal. No such order may be treated as a nullity.

and later, at pp. 418-19:

In Eastern Trust Co. v. MacKenzie, Mann & Co., 22 D.L.R. at p. 418, [1915] A.C. at p. 760, Sir George Farwell, speaking for their Lordships of the Judicial Committee, said: "(The injunction) was, or course, interlocutory, not final, but it is binding on all parties to the order so long as it remains undischarged."

Duff C.J.C., approved the same principle in Scotia Construction Co. v. Halifax, 1934 CanLII 80 (SCC), [1935], 1 D.L.R. 316, S.C.R. 124, and expressed the principle in these terms (p. 317 D.L.R., p. 128 S.C.R.) "In any case, no appeal was attempted, and whether appealable or not, it was a judgment of a Court of general jurisdiction, possessing ... authority to pronounce conclusively, subject to appeal if the law gave an appeal, upon any question of its own jurisdiction."

In my opinion these submissions must be rejected.

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On appeal to this Court, sub nom. Poje v. Attorney General for British Columbia, 1953 CanLII 34 (SCC), [1953] 1 S.C.R. 516, the appeal was dismissed. The question of a collateral attack upon a court order was not specifically dealt with. Kerwin J. expressed no opinion on the matter, but Estey J. in a short concurring judgment said at p. 528:

I agree the appeal should be dismissed. The learned Chief Justice, in my opinion, upon this record had jurisdiction to hear the motion. I am in respectful agreement with the conclusions of the majority of the learned judges in the Court of Appeal, both with respect to the objections taken to the order as made by Mr. Justice Clyne and the findings of the learned Chief Justice. In view of the foregoing it is unnecessary to determine the nature and character of the contempt.

The case was referred to in Pashko v. Canadian Acceptance Corp. Ltd. (1957), 1957 CanLII 296 (BC CA), 12 D.L.R. (2d) 380, in the British Columbia Court of Appeal.

In addition to these authorities and those referred to in judgments of the majority in the Canadian Transport case, reference may be made as well to the words of Osler J.A. in Gibson v. Le Temps Publishing Co. (1903), 6 O.L.R. 690, at pp. 694-95, where a judgment was attacked on the basis of a deficiency in service during the earlier proceedings which gave rise to the judgment. Osler J.A. said:

If the judgment in the Quebec action is to be regarded as a judgment against a corporation or body corporate, and therefore not capable of being the foundation of an action thereon against a partnership firm of the same name, that is an objection which should have been taken on the motion to enter summary judgment, and it appears not to have been then taken. This was the substantial ground of defence to the action, and, so far as I can see, it was not brought to the attention of the Court at the proper stage and has never been decided. A similar difficulty attends the objection as to the service of the writ on the manager. On the motion for judgment it might have been shewn (unless the defendants had done something to waive the objection) that the requirements of Rule 224 had not been complied with, and therefore that there had never been an effective service of the writ upon the firm, the person served not being, in

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fact, a partner, and not having been informed by the prescribed notice that he was served as manager: Snow's Annual Practice, 1902, p. 655; Yearly Practice, 1904, p. 504. Or the firm might have moved to set aside the faulty service on the manager: Nelson v. Pastorino (1883), 49 L.T.N.S. 564. Neither of these courses was taken and there is now a judgment against a partnership firm, which stands unimpeached, and which cannot be attacked in a collateral proceeding. While it stands, the plaintiff has the right to enforce it by any means open to him under Rule 228.

Further authority in support of the rule against collateral attack may be found in Clark v. Phinney (1896), 1896 CanLII 74 (SCC), 25 S.C.R. 633; Maynard v. Maynard, 1950 CanLII 3 (SCC), [1951] S.C.R. 346; Badar Bee v. Habib Merican Noordin, [1909] A.C. 615; and particularly in Royal Trust Co. v. Jones, 1961 CanLII 50 (SCC), [1962] S.C.R. 132. In that case the validity of a codicil to a will was upheld in proceedings in the Supreme Court of British Columbia. The trial judgment was affirmed in the Court of Appeal. The unsuccessful party brought a new action to set aside this judgment which succeeded notwithstanding the confirmation on appeal of the earlier judgment. No appeal was taken and the trustee proceeded for a period of fifteen years to administer the estate on the basis that the codicil was invalid. On an application for directions on a matter which did not directly involve the validity of the codicil and which involved parties not in the first proceeding, the Court of Appeal on its own motion declared that the trial judge, Manson J., who had declared the codicil invalid and set aside the earlier judgment, was without jurisdiction to do so and reversed his judgment. On appeal to this Court the appeal was allowed. Cartwright J. (as he then was) said, at p. 145:

An examination of the authorities leads me to the conclusion that it has long been settled in England that the proper method of impeaching a judgment of the High Court on the ground of fraud or of seeking to set it aside on the ground of subsequently discovered evidence is by action, whether or not the judgment which is attacked has been affirmed or otherwise dealt with by the Court of Appeal or other appellate tribunal.

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The first judgment had therefore been properly challenged by a direct action. The second judgment, not having been appealed or directly challenged, was binding. Cartwright J. said, at p. 146:

It follows that Manson J. had jurisdiction to entertain the action which was brought before him and his judgment in that action, not having been appealed from or otherwise impeached, is a valid judgment of the Court binding upon all those who were parties to it.

The cases cited above and the authorities referred to therein confirm the well-established and fundamentally important rule, relied on in the case at bar in the Manitoba Court of Appeal, that an order of a court which has not been set aside or varied on appeal may not be collaterally attacked and must receive full effect according to its terms.

The authorizations in question here are all orders of a superior court. Unless Parliament has altered or varied the rule above-described, it would apply in this case. It would then follow that in this action to determine the guilt or innocence of the accused the trial judge was in error in entertaining a collateral attack on the validity of the authorizations and, in effect, going behind them. Support for this view, with some qualifications for cases where there has been a defect on the face of the authorization or fraud, is to be found in R. v. Welsh and lannuzzi (No. 6) (1977), 1977 CanLII 1215 (ON CA), 32 C.C.C. (2d) 363 (Ont. C.A.), where Zuber J.A., at pp. 371-72, said:

Ordinarily the trial Court is obliged to simply accept the authorization at face value. Cases in which a trial Court could decline to accept the authorization would be rare indeed and, without attempting to set out an exhaustive list, would include cases in which the authorization was defective on its face, or was vitiated by reason of having been obtained by a fraud. However, even an authorization that was said to be defective on its face may attract the curative provisions of s. 178.16(2)(b) [now s. 178.16(3)(b)].

In the case at bar, the trial judge preferred to follow the reasoning of Meredith J., of the British Columbia Supreme Court, in R. v. Wong (No. 1) (1976), 1976 CanLII 1354 (BC SC), 33 C.C.C. (2d) 506, where he asserted a

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broader power in the trial judge to go behind the authorization.

The question then is: has Parliament by the enactment of Part IV.1 of the Criminal Code altered the rule which would render the authorizations immune from collateral attack? In my opinion, the answer must be no.

Section 178.16(1) deals with the admissibility of evidence obtained under the authority of the authorization. Subsection (3) gives the trial judge a discretion to admit evidence that is inadmissible under subs. (1) "by reason only of a defect of form or an irregularity in procedure not being a substantive defect or irregularity, in the application for or the giving of the authorization". The trial judge may be required to determine whether he will admit under subs. (3) evidence otherwise inadmissible under the provisions of Part IV.1 of the Code. This step, it would seem, would require some examination of the procedures followed in obtaining the authorization in order to determine whether evidence has been rendered inadmissible only by a defect or an irregularity of a non-substantive nature.

It is my opinion that the trial judge in reaching a conclusion on this subject is limited to a consideration of defects and irregularities which are apparent on the face of the authorization and he may not go behind it. Such a step would involve a collateral attack upon the authorization. It would require, in my opinion, much clearer statutory language than that employed in subs. (3) of s. 178.16 to permit such a step in the face of the clearly established rule. I find additional support for this view in the fact that once an authorization is granted s. 178.14 provides that all documents connected with it, save the authorization itself, be sealed in a packet and kept in the custody of the court, to be opened only for the purposes of a renewal or by an order of a judge of a superior court of criminal jurisdiction or a judge defined in s. 482 of the Code. Many trial judges will not fall into either of those categories and accordingly will not have authority to direct the opening of the sealed packet. It follows that a trial judge qua trial judge has not, and was not intended to have, access to the materials necessary to review the granting

[page 606]

of the authorization. This makes any collateral attack on the authorization a virtual impossibility.

It should be observed as well that subs. (3) of s. 178.16 gives no power to go behind the authorization and no power to vary or question it. It merely provides that if in the performance of his task of determining the admissibility of evidence the trial judge forms the opinion that a relevant, private communication is inadmissible because of subs. (1) of s. 178.16 he may, if the admissibility results only because of a defect in form or an irregularity in procedure which is not substantive in the giving of the authorization, admit the evidence notwithstanding subs. (1). This subsection gives a power to the trial judge in appropriate circumstances to admit evidence despite its inadmissibility under the authorization, but it includes no power to attack the authorization itself. I have not overlooked the fact that this Court in Charette v. The Queen, 1980 CanLII 31 (SCC), [1980] 1 S.C.R. 785, approved the judgment of Dubin J.A. in the Ontario Court of Appeal in R. v. Parsons (1977), 1977 CanLII 55 (ON CA), 37 C.C.C. (2d) 497, and that Dubin J.A. said in that case, at pp. 501-02:

A voir dire is not held to pass on the sufficiency of the evidence, but only to determine questions of admissibility. In cases such as these, initial issues as to the admissibility of the tendered evidence immediately arise. In order to render evidence of intercepted private communications admissible when Crown counsel relies upon an authorization, Crown counsel must first satisfy the trial Judge that the statutory conditions precedent have been fulfilled, i.e., that the interceptions were lawfully made, and that the statutory notice was given. In a case where the Crown relies upon an authorization it is for the trial Judge to pass upon such matters as the validity of the authorization, and that the investigation authorized had been carried out in the manner provided for in the authorization. He must be satisfied that the authorization includes either as a named or unnamed person any of the parties to the communication, and, as I have said, that the statutory notice has been complied with.

In my view, these words do not support the notion that the trial judge may go behind the authorization. They indicate that consideration of the validity of the authorization on the part of the trial judge is limited to matters appearing on its face,

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and it is my opinion that Dubin J.A. did not in that case assert a power in the trial judge to do more.

Since no right of appeal is given from the granting of an authorization and since prerogative relief by certiorari would not appear to be applicable (there being no question of jurisdiction), any application for review of an authorization must, in my opinion, be made to the court that made it. There is authority for adopting this procedure. An authorization is granted on the basis of an ex parte application. In civil matters, there is a body of jurisprudence which deals with the review of ex parte orders. There is a widely recognized rule that an ex parte order may be reviewed by the judge who made it. In Dickie v., Woodworth (1883), 1883 CanLII 51 (SCC), 8 S.C.R. 192, Ritchie said, at p. 195:

The judge having in the first instance made an ex parte order, it was quite competent for him to rescind that order, on its being shown to him that it ought not to have been granted, and when rescinded it was as if it had never been granted ... .

This view is reflected in the words of Mathers C.J.K.B. in the case of Stewart v. Braun, 1924 CanLII 270 (MB KB), [1924] 3 D.L.R. 941 (Man. K.B.), at p. 945:

But it frequently happens that Judges and judicial officers are called upon to make orders ex parte, where only one side is represented and where the order granted is not the result of a deliberate judicial decision after a hearing and argument. An application to rescind or vary an ex parte order is neither an appeal nor an application in the nature of an appeal and therefore the Judge or officer by whom such an order has been made, has since the Judicature Act, as he had before, the right to rescind or vary it ... .

Such power of review has been asserted and exercised in respect of authorizations to intercept private communications in Re Stewart and The Queen (1975), 1975 CanLII 688 (ON SC), 23 C.C.C. (2d) 306 (County Court, Ottawa-Carleton Judicial District (Ont.)), application for certiorari dismissed: (1976), 1976 CanLII 644 (ON SC), 30 C.C.C. (2d) 391 (Ont.H.C.); Re Turangan and Chui and The Queen (1976), 1976 CanLII 1405 (BC SC), 32 C.C.C. (2d) 249 (B.C.S.C.),

[page 608]

appeal dismissed for lack of jurisdiction (1976), 32 C.C.C. (2d) 254 (B.C.C.A.)

The exigencies of court administration, as well as death or illness of the authorizing judge, do not always make it practical or possible to apply for a review to the same judge who made the order. There is support for the proposition that another judge of the same court can review an ex parte order. See, for example, Bidder v. Bridges (1884), 26 Ch.D. 1 (C.A.), and Boyle v. Sacker (1888), 39 Ch.D. 249 (C.A.) In the case of Gulf Islands Navigation Ltd. v. Seafarers' International Union (1959), 1959 CanLII 272 (BC CA), 18 D.L.R.(2d) 625 (B.C.C.A.), Smith J.A. said, at pp. 626-27:

After considering the cases, which are neither as conclusive nor as consistent as they might be, I am of opinion that the weight of authority supports the following propositions as to one Judge's dealings with another Judge's ex parte order: (1) He has power to discharge the order or dissolve the injunction; (2) he ought not to exercise this power, but ought to refer the motion to the first Judge, except in special circumstances, e.g., where he acts by consent or by leave of the first Judge, or where the first Judge is not available to hear the motion; (3) if the second Judge hears the motion, he should hear it de novo as to both the law and facts involved.

I would accept these words in the case of review of a wiretap authorization with one reservation. The reviewing judge must not substitute his discretion for that of the authorizing judge. Only if the facts upon which the authorization was granted are found to be different from the facts proved on the ex parte review should the authorization be disturbed. It is my opinion that, in view of the silence on this subject in the Criminal Code and the confusion thereby created, the practice above-described should be adopted.

An application to challenge an authorization should be brought as soon as possible. In most cases, because of the requirement for reasonable notice of intention to adduce wiretap evidence, it may be that the application can be made before trial. Otherwise, defence counsel wishing to challenge an authorization may, in accordance with

[page 609]

the suggestion made by O'Sullivan J.A. in the case at bar, have to apply for an adjournment for this purpose.

It may be argued that where a trial judge happens to be of the same court that made the authorization order (as was the case in Wong (No. 1), supra) an application to review the authorization could be made to him directly, rather than incurring extra expense and needless delay by instituting completely separate proceedings. There may be some merit to this argument but, if such a review were undertaken, it would be done by the judge in his capacity as a judge of the court that made the original order and not in his capacity as trial judge.

In the case at bar, the trial judge held the wiretap evidence to be inadmissible and at the same time he stated that he did not need to go behind the authorizations. In my opinion, he did go behind the authorizations even though he did not consider it necessary to open the sealed packets. In so doing, for the reasons discussed above, he exceeded his jurisdiction. I am in substantial agreement with the Manitoba Court of Appeal that the trial judge was in error in refusing to admit the evidence which was tendered by the Crown. I would therefore dismiss the appeal and confirm the order for a new trial.

The reasons of Dickson and Chouinard JJ. were delivered by

DICKSON J.—The issue is whether a trial judge, who is a provincial court judge, can look behind an apparently valid wiretap authorization given by a superior court judge and rule intercepted private communications inadmissible in evidence.

I The Facts and Judicial History

The appellant, James Stephen Wilson, was tried before Dubienski Prov. Ct. J. of the Manitoba Provincial Court (Criminal Division) on nine counts, all related to betting. The Crown sought to

[page 610]

adduce wiretap evidence. Dubienski Prov. Ct. J. ruled the evidence inadmissible as having been illegally obtained. The Crown's case collapsed and Wilson was acquitted on all nine counts. The issue on appeal is whether Dubienski Prov. Ct. J. exceeded his jurisdiction in refusing to admit the intercepted communications in evidence.

The tapes were made pursuant to four authorizations, obtained from judges of the Manitoba Court of Queen's Bench, concerning the accused Wilson and authorizing interceptions at named addresses. In each of the authorizations the following words appear:

AND UPON hearing read the affidavit of Detective Sergeant Anton Cherniak;

AND UPON being satisfied that it is in the best interests of the administration of justice to grant this authorization and that other investigative procedures have been tried and have failed, that other investigative procedures are unlikely to succeed, and that the urgency of the matter is such that it would be impractical to carry out the investigation of the undermentioned offences using only other investigative procedures;

Counsel for Wilson concedes all four authorizations are valid on their face. Police Inspector Anton Cherniak testified as to the manner in which the authorizations had been obtained. Cherniak said, in respect of the first authorization:

... while in company with Mr. John Guy [a Crown counsel and designated agent] we attended in judges chambers before Mr. Justice Hunt. Mr. Justice Hunt was supplied with an application. He appeared to read it. He was supplied with an affidavit. He appeared to read it. He was then supplied with an authorization. He appeared to read it and he then applied his signature, in my presence, to the authorization.

Testimony with respect to the other authorizations was virtually the same. On cross-examination, Inspector Cherniak added that he might have been asked a number of questions. Wilson's counsel spent considerable time cross-examining Cherniak about the matters referred to in ss. 178.12(1)(g) and 178.13(1)(b) of the Criminal Code:

[page 611]

178.12 (1) An application for an authorization shall be made ex parte and in writing ...

and shall be accompanied by an affidavit which may be sworn on the information and belief of a peace officer or public officer deposing to the following matters, namely:

(g) whether other investigative procedures have been tried and have failed or why it appears they are unlikely to succeed or that the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

178.13 (1) An authorization may be given if the judge to whom the application is made is satisfied

(a) that it would be in the best interests of the administration of justice to do so; and

(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

The questions related to the actual state of facts at the time the authorizations were applied for and not to the contents of the affidavits. The Crown made no objection to this line of questioning. On the basis of Cherniak's testimony at trial, Dubienski Prov. Ct. J. decided none of the three alternative pre-conditions of s. 178.13(1)(h) had been met at the time the authorizations were given: (i) no other investigative procedures had been tried and failed, (ii) there was no evidence other investigative procedures were unlikely to succeed, (iii) there was no urgency. The judge concluded that the improper granting of the authorizations was not due to any error on the part of the authorizing judges, but due to the fault of the police.

My whole problem was that the evidence that was before me, as presented by the police, was quite different from the evidence that would appear to have been given and upon which the authorizations were based.

He further commented:

I am inclined to say the police have developed a pattern of application based on routine.

[page 612]

It would be carrying it too far to say Dubienski Prov. Ct. J. concluded the authorizations had been obtained by fraud, but, at least, he assumed there had been insufficient or false information in the affidavits. This determination was reached without examination of the affidavits. They remain in sealed packets, pursuant to s. 178.14 of the Code, and Dubienski Prov. Ct. J., as a provincial court judge, had no authority to order the opening of the packets. The judge decided the interceptions of private communications had not been lawfully made and to admit the evidence would bring the administration of justice into disrepute. He therefore excluded the evidence.

The Crown appealed the acquittals to the Manitoba Court of Appeal, which unanimously allowed the appeal and ordered a new trial. Monnin J.A., as he then was, and Matas J.A. concurring, concluded that an authorization issued by a superior court could not be collaterally challenged in a provincial court. In separate reasons, O'Sullivan J.A. said that an authorization granted in a superior court could not be collaterally attacked in any court and could not be attacked at all in an inferior court.

In the Manitoba Court of Appeal and in this Court counsel for Wilson argued, as an additional point, that the requirement under s. 178.16(4) to give notice of intention to adduce wiretap evidence had not been proven at trial. The Manitoba Court of Appeal rejected this argument. In this Court we gave our opinion on the day of hearing that notice had been sufficiently proven. Thus, the only outstanding issue is the trial judge's treatment of the authorizations.

II The Reviewability of Authorizations

An authorization to intercept a private communication is an ex parte order which may be made by a judge of a superior court of criminal jurisdiction, as defined in s. 2 of the Criminal Code, or a judge, as defined in s. 482. That means

[page 613]

that in Manitoba authorizations may be obtained from judges of the Court of Appeal, the Court of Queen's Bench, or a County Court. The designations in other provinces are slightly different; I will use the Manitoba references in the following discussion.

To what extent, if any, and in what manner are authorizations reviewable? The Manitoba Court of Appeal identified two problems in the present case: (i) an inferior court had refused to accept the validity of superior court authorizations, and (ii) collateral attack. I will deal with the latter point first.

(A) Collateral Attack

In dealing with the issue of collateral attack I will, for the moment, put to one side the question of a trial judge assessing an authorization given by a higher court. I will assume that the trial judge is of the same court, or a higher court, than the judge who gave the authorization.

The collateral attack issue is this: in the absence of an actual application to set aside the authorization, can a trial judge, qua trial judge, consider the validity of an authorization in order to determine the admissibility of evidence? O'Sullivan J.A., as I indicated, expressed the view that a superior court authorization could not be collaterally attacked in any court. That was perhaps implicit in the judgment of Monnin J.A. In the earlier case of R. v. Dass (1979), 1979 CanLII 2923 (MB CA), 47 C.C.C. (2d) 194 (Man. C.A.), Huband J.A., speaking for a five judge Court, said this, at p. 214:

A question arose as to whether objection could be taken in this Court, to evidence flowing from an interception which had been authorized by a Court order made by a Justice of the Manitoba Court of Queen's Bench .... There is a well-recognized rule that the orders of a superior Court cannot be made the subject of a collateral attack: see Re Sproule (1886), 1886 CanLII 51 (SCC), 12 S.C.R. 140 at p. 193. In this instance, however, defence counsel does not complain that an application to intercept communications was made. He does not complain that an

[page 614]

order was granted. He does not complain as to the terms or the wording of the order, except for the substitution of one location for another as previously discussed. The complaint is not as to the order itself, but rather as to the means by which the order was implemented. The issue raised is therefore not an attack on the order itself, and consequently it is an appropriate subject-matter for the consideration of this Court on appeal. [Emphasis added.]

The exception was, however, a broad qualification. There had been a renewal of the authorization in which a new location had been added; the Court of Appeal concluded that was improper; to that extent the renewal was invalid, and any communications intercepted at the new location should not have been admitted in evidence. (Nonetheless, s. 613(1)(b)(iii) was applied.) Despite its asseveration to the contrary, it is hard to conclude that the Manitoba Court of Appeal did not, in effect, collaterally attack the authorization in Dass.

I accept the general proposition that a court order, once made, cannot be impeached otherwise than by direct attack by appeal, by action to set aside, or by one of the prerogative writs. This general rule is, however, subject to modification by statute. In my view, Parliament has indeed modified the rule in the enactment of two provisions of Part IV.1 of the Criminal Code, ss. 178.16(1) and 178.16(3)(b):

178.16 (1) A private communication that has been intercepted is inadmissible as evidence against the originator of the communication or the person intended by the originator to receive it unless

(a) the interception was lawfully made; or

(b) the originator thereof or the person intended by the originator to receive it has expressly consented to the admission thereof;

but evidence obtained directly or indirectly as a result of information acquired by interception of a private communication is not inadmissible by reason only that the private communication is itself inadmissible as evidence.

(3) Where the judge or magistrate presiding at any proceedings is of the opinion that a private communication that, by virtue of subsection (1), is inadmissible as evidence in the proceedings

[page 615]

(a) is relevant to a matter at issue in the proceedings, and

(b) is inadmissible as evidence therein by reason only of a defect of form or an irregularity in procedure, not being a substantive defect or irregularity, in the application for or the giving of the authorization under which such private communication was intercepted,

he may, notwithstanding subsection (1), admit such private communication as evidence in the proceedings.

The present s. 178.16(3) was formerly, with slightly different wording, s. 178.16(2).

(i) Invalidity on the Face of the Authorization

On what basis can a trial judge assess the validity? This Court has been receptive to the view that a trial judge can collaterally attack an authorization. In Charette v. The Queen, 1980 CanLII 31 (SCC), [1980] 1 S.C.R. 785, affirming, sub nom. R. v. Parsons (1977), 1977 CanLII 55 (ON CA), 37 C.C.C. (2d) 497 (Ont. C.A.), the trial judge had concluded the superior court authorization was invalid on its face and refused to admit the evidence obtained pursuant to it. The Ontario Court of Appeal disagreed, holding the authorization was valid on its face, but the Court accepted the submission that the trial judge had jurisdiction to consider the validity of the authorization. In Charette this Court adopted the reasons of Dubin J.A., which included the following passage at pp. 501-02:

A voir dire is not held to pass on the sufficiency of the evidence, but only to determine questions of admissibility. In cases such as these, initial issues as to admissibility of the tendered evidence immediately arise. In order to render evidence of intercepted private communications admissible when Crown counsel relies upon an authorization, Crown counsel must first satisfy the trial Judge that the statutory conditions precedent have been fulfilled, i.e., that the interceptions were lawfully made, and that the statutory notice was given. In a case where the Crown relies upon an authorization it is for the trial Judge to pass upon such matters as the validity of the authorization, and that the investigation authorized had been carried out in the manner provided for in the authorization. He must be satisfied that the authorization includes either as a named or unnamed person any

[page 616]

of the parties to the communication, and, as I have said, that the statutory notice has been complied with.

The determination of whether the statutory conditions precedent have been fulfilled rests exclusively with the trial Judge and are properly determined in a voir dire. [Emphasis added.]

The trial judge has the responsibility of deciding upon the admissibility of evidence. Section 178.16(1) says that, absent consent, evidence of a private communication can only be introduced if the interception was lawful. Absent consent, an interception is only lawful if made pursuant to an authorization given in accordance with Part IV.I of the Criminal Code. The fact that an authorization purports to be made under Part IV.I is insufficient. Section 178.16(3)(6) gives the trial judge discretion to admit unlawfully obtained evidence if there is a non-substantive defect in form or irregularity in procedure in the giving of the authorization. The corollary would seem to be that if the defect or irregularity is substantive, there is no such discretion and the evidence is inadmissible. If a court order authorizing the interception were conclusive, even if it did not comply with Part IV.I, there would be no need for the curative provisions of s.178.16(3)(b). The combination of ss. 178.16(1)(a) and 178.16(3)(b) requires the trial judge to consider whether the authorization was valid. The fact that it amounts to what might be called a collateral attack is no bar.

(ii) Going Behind an Apparently Valid Authorization

Does the same rationale apply when the question is one of going behind an apparently valid authorization? In the present case Dubienski, Prov. Ct. J. claimed he was not going behind the authorizations. In my view that position is untenable. When a trial judge rules evidence inadmissible because the authorization, although valid on its face, was not lawfully obtained, it can scarcely be said that he is not going behind the authorization. He is not necessarily declaring the authorization

[page 617]

invalid for all purposes; he is not actually setting it aside; but he is, for the purpose of determining the admissibility of evidence, going behind the authorization. Is there jurisdiction to do so?

I am of the view that ss. 178.16(1)(a) and 178.16(3)(b) apply to give the trial judge authority to go behind an apparently valid authorization. There is nothing in the language of the sections justifying a distinction between that which appears on the face of the record and that which is dehors the record. There is nothing limiting the trial judge to an examination only of what appears on the face of the authorization. To impose such a restriction as a matter of statutory interpretation would unnecessarily fetter his ability to determine whether the wiretap evidence is admissible. In many cases wiretap evidence may be the only evidence against the accused. It must be noted that not only does s. 178.16(3)(b) refer to defects or irregularities in the giving of the authorization, but also in the application for the authorization. Once again, since s. 178.16(3)(b), in effect, gives a discretion to cure for non-substantive defects or irregularities it would seem to follow as a necessary inference that substantive defects or irregularities in the application for the authorization will result in the evidence being inadmissible. In R. v. Gill (1980), 1980 CanLII 736 (BC CA), 56 C.C.C. (2d) 169 (B.C.C.A.), Lambert J.A. expressed this view at p. 176:

Subsection (2)(b) [now 178.16(3)(b)] of that section contemplates that any defect or irregularity in the application for or the giving of the authorization may make a private communication inadmissible, and that if it is inadmissible and if the defect or irregularity is a substantive one, then there is no discretion in the trial Judge to admit the private communication.

I think that s. 178.16 defines its own concepts and that if, in the application for the authorization, or in the giving of the authorization, there is a substantive defect or irregularity, then the interception cannot be regarded as being lawfully made within the meaning of s. 178.16(1)(a). A private communication intercepted under such an authorization would be inadmissible. In reaching that conclusion, I disagree on this narrow point with the reasons of Anderson J. of the Supreme Court of British Columbia in Re Miller and Thomas and The Queen (1976), 1975 CanLII 1216 (BC SC), 23 C.C.C. (2d) 257, 59 D.L.R. (3d) 679, 32 C.R.N.S. 192, and with the reasons of McDonald J.

[page 618]

of the Alberta Supreme Court, Trial Division, in Re Donnelly and Acheson and The Queen (1976), 1976 CanLII 1351 (AB SCTD), 29 C.C.C. (2d) 58, [1976] W.W.D. 100.

A view similar to that of Lambert J.A. was expressed by Meredith J. in R. v. Wong (No. 1) (1976), 1976 CanLII 1354 (BC SC), 33 C.C.C. (2d) 506 (B.C.S.C.), a case relied upon by Dubienski Prov. Ct. J. Wong (No. 1) involved, as does the present case, a question of compliance with s. 178.13(1)(6).

Notwithstanding what has been said by D.C. McDonald, J., in the case cited above, it seems to me to follow by necessary inference that a substantive defect of form or irregularity in procedure in an application for or the giving of the authorization may render the evidence of the communication intercepted as a result, inadmissible as unlawful. Thus, it seems to me that as I am the Judge who must rule on the admissibility of evidence in this case, I must consider whether there has been a substantive defect of form or irregularity in procedures as might render the evidence inadmissible. I do not think that such an examination requires that the ex parte order by which the authorization was granted be reviewed or set aside. [At pp. 509-10].

R. v. Ho (1976), 1976 CanLII 1334 (BC SC), 32 C.C.C. (2d) 339 (Vancouver Co. Ct. (B.C.)) is to the same effect. See Krever J. in Re Stewart and The Queen (1976), 1976 CanLII 644 (ON SC), 30 C.C.C. (2d) 391 (Ont. H.C.), at p. 400. See also Manning, The Protection of Privacy Act, (1974) at pp. 135-37; Bellemare, La révision d'une autorisation en écoute électronique (1979), 39 R. du B. 496.

As noted in the above-quoted passages, there is a contrary view, expressed most strongly by McDonald J. in Re Donnelly and Acheson and The Queen (1976), 1976 CanLII 1351 (AB SCTD), 29 C.C.C. (2d) 58 (Alta. S.C.), and by Anderson J. in Re Miller and Thomas and The Queen (1976), 1975 CanLII 1216 (BC SC), 23 C.C.C. (2d) 257 (B.C.S.C.) I will refer specifically to the arguments raised by McDonald J. in Donnelly and Acheson, considerably influenced by the wording of s. 178.14:

178.14 (1) All documents relating to an application made pursuant to section 178.12 or subsection 178.13(3) are confidential and, with the exception of the authorization,

[page 619]

shall be placed in a packet and sealed by the judge to whom the application is made immediately upon determination of such application, and such packet shall be kept in the custody of the court in a place to which the public has no access or in such other place as the judge may authorize and shall not be

(a) opened or the contents thereof removed except

(i) for the purpose of dealing with an application for renewal of the authorization, or

(ii) pursuant to an order of a judge of a superior court of criminal jurisdiction or a judge as defined in section 482; and

(b) destroyed except pursuant to an order of a judge referred to in subparagraph (a)(ii).

(2) An order under subsection (1) may only be made after the Attorney General or the Solicitor General by whom or on whose authority the application was made for the authorization to which the order relates has been given an opportunity to be heard.

McDonald J. started with the assumption that, but for s. 178.16(2)(b) (now 3(b)), he would have thought "lawfully made" in s. 178.16(1)(a) meant in accordance with an apparently valid authorization. He conceded that s. 178.16(2)(6) appeared to imply that the evidence was inadmissible if there were a substantive defect in form or irregularity in procedure in the application for the authorization. He declined, however, to draw this inference, at the same time acknowledging that this relegated portions of s. 178.16(2)(b) to mere surplusage. He sought to avoid three consequences he asserted would flow if s. 178.16(2)(6) were interpreted to enable a trial judge to go behind an apparently valid authorization.

(1) That which was on its face lawfully done, pursuant to an order (i.e., the authorization) of a Judge of a superior or district Court, would be held to have been unlawful. The trial Judge would retrospectively render unlawful that which had appeared to be lawful. I should think that a statute which is said to give a trial Judge such a power should be scrutinized very carefully to determine whether such a power has in fact been given by Parliament.

(2) The contents of the affidavit would be disclosed to public view even though it might reveal investigations not only which led to the prosecution of the accused but

[page 620]

also those which might relate to continuing or concluded investigations of other persons not yet charged or tried. I should think that a statute which is said to enable a trial Judge to do an act with such a consequence should be held to do so only if that power is given expressly or by necessary inference.

(3) The Protection of Privacy Act, 1973-74, c. 50, amended both the Criminal Code and the Crown Liability Act, R.S.C. 1970, c. C-38.

7.2(1) Subject to subsection (2), where a servant of the Crown, by means of an electromagnetic, acoustic, mechanical or other device, intentionally intercepts a private communication, in the course of his employment, the Crown is liable for all loss or damage caused by or attributable to such interception, and for punitive damages in an amount not exceeding $5,000 to each person who incurred such loss or damage.

(2) The Crown is not liable under subsection (1) for loss or damage or punitive damages referred to therein where the interception complained of

(a) was lawfully made;

(b) was made with the consent, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it; or

(c) was made by an officer or servant of the Crown in the course of random monitoring that is necessarily incidental to radio frequency spectrum management in Canada.

Whatever interpretation is placed upon the words "lawfully made" in s. 178.16(1)(a) of the Criminal Code must surely be given also to s. 7.2(2)(a) of the Crown Liability Act, both those provisions having been created by the same statute. It would follow as well that where the issue arises not as one of the admissibility of an intercepted communication (or derivative evidence at a trial but as one of liability under the Crown Liability Act, the contention of the defence would entail that liability would flow from an act of interception which when done by a servant of the Crown had been done pursuant to an authorization which on its face made the interception lawful. [At pp. 64 and 65.]

With respect, I do not find these three arguments to be wholly persuasive. As to the third consequence, a majority of this Court was not convinced

[page 621]

by an argument along the same line in Goldman v. The Queen, 1979 CanLII 60 (SCC), [1980] 1 S.C.R. 976, at pp. 998-99. Mr. Justice McDonald's first and third consequences are related. It does not necessarily follow that a determination of "not lawfully made" for the purposes of admissibility makes an interception unlawful for all purposes under Part IV.I. The evidence may be inadmissible yet there might be a defence to a criminal or civil proceeding arising from the interception. That question does not arise in this case and need not be decided here. The second consequence predicted by McDonald J. tends to overstatement. The affidavit would not need to be made public in order to rule evidence inadmissible; selected aspects only could be made public. As Stanley A. Cohen suggests in his work Invasion of Privacy: Police and Electronic Surveillance in Canada (1983), the integrity of the packet might be preserved "through initial judicial screening, and, if necessary, judicial editing" (p. 155). Due regard to the confidentiality provisions of s. 178.14 is not inconsistent with ruling evidence inadmissible under s. 178.16.

I therefore conclude that s. 178.16(1)(a) and 178.16(3)(b) do enable a trial judge to go behind an apparently valid authorization.

(iii) Examining the Contents of the Sealed Packet

In most cases it will be necessary to examine the contents of the sealed packet in order to determine whether there was a defect or irregularity in the application for the authorization.

In the present case Dubienski Prov. Ct. J. ruled that the requirements of s. 178.13(1)(b) had not been met, without examining the contents of the sealed packet. In this respect he followed Meredith J. in Wong (No. 1), supra, and in my view fell into error. It is important to note that s. 178.13 does not require that the authorization contain a list of the reasons which prompted the judge to give the authorization. In order finally to determine whether

[page 622]

other investigative procedures had been tried and failed, other investigative procedures were unlikely to succeed, or that there was urgency, it would be necessary to examine the affidavits. This would enable the trial judge to say whether the apparent conflict between the evidence at trial and what can be assumed to have been said in the affidavits is actual. It may be that the comparison will give rise to clarification, showing that one of the three pre-conditions had been met. For example, in the present case little was said in the testimony at trial as to whether other investigative procedures were unlikely to succeed. If one were to examine the affidavits, there might be an explanation that would satisfy the requirements of s. 178.12(1)(g) and 178.13(1)(b) and hence make the authorizations valid. I therefore conclude Dubienski Pray. Ct. J. could not properly decide the interceptions were not lawfully made without examining the contents of the sealed packets.

If this case had been before a superior court trial judge would it have been proper for the judge to order the opening of the sealed packet under s.178.14? Most of the cases have assumed that only rarely is this proper; there appears to be a reticence to go behind an apparently valid authorization; R. v. Gill, supra; Re Stewart and The Queen, supra; R. v. Miller and Thomas (No. 4) (1975), 1975 CanLII 1310 (BC SC), 28 C.C.C. (2d) 128 (Yale Co. Ct. (B.C.)); R. v. Newall (No. 1) (1982), 1982 CanLII 276 (BC SC), 67 C.C.C. (2d) 431 (B.C.S.C.); R. v. Johnny and Billy (1981), 1981 CanLII 374 (BC SC), 62 C.C.C. (2d) 33 (B.C.S.C.); R. v. Bradley (1980), 1980 CanLII 2927 (QC CS), 19 C.R. (3d) 336 (Que. S.C.); Re Royal Commission Inquiry into the Activities of Royal American Shows Inc. (No. 3) (1978), 1978 CanLII 2379 (AB SCTD), 40 C.C.C. (2d) 212 (Alta. S.C.); Re Zaduk and The Queen (1977), 1977 CanLII 1911 (ON SC), 37 C.C.C. (2d) 1 (Ont. H.C.); R. v. Haslam (1977), 1977 CanLII 1991 (NL SC), 36 C.C.C. (2d) 250 (Nfld. District Ct.); Re Regina and Kozak (1976), 1976 CanLII 1399 (BC SC), 32 C.C.C. (2d) 235 (B.C.S.C.); contra—R. v. Kalo, Kalo and Vonschober (1975), 1975 CanLII 1328 (ON SC), 28 C.C.C. (2d) 1 (Peel Co. Ct. (Ont.)) It is not necessary to decide whether this restricted view of s. 178.14 is correct. There is a broad consensus that prima fade evidence of fraud or non-disclosure is a valid reason for opening the packet. Misleading disclosure would be in the same category. The present case is one in which

[page 623]

the trial judge made a prima facie finding of either misleading disclosure or non-disclosure.

Opening the sealed packet, and holding an authorization to be invalid, on the basis of fraud, non-disclosure, or misleading disclosure, is, in a sense, a less serious interference with the authorizing judge's decision than a finding of invalidity on the face of the authorization. The latter conclusion connotes that the authorizing judge did something wrong—he signed an order not in accordance with the Criminal Code. On the other hand, a finding of invalidity based on fraud, non-disclosure, or misleading disclosure means that the authorizing judge acted properly on the basis of evidence before him—the invalidity arose because the evidence was false or incomplete—the fault of others.

Once a foundation is laid for the opening of the packet, I would say that the trial judge, assuming him to be a judge of a superior court of criminal jurisdiction or a judge as defined in s. 482, can open the packet and make a full review for compliance with Part IV.I. He cannot, of course, decide whether, in the exercise of his discretion, he would have granted the authorization. He can only decide whether it was lawfully obtained. He can also apply the curative provisions of s. 178.16(3)(b) to non-substantive defects or irregularities. A failure to comply with a mandatory provision such as 178.12(1)(g) or 178.13(1)(b) would, in my view, amount to a substantive and non-curable defect.

Although I conclude that Dubienski Prov. Ct. J. was in error in holding the authorizations to have been unlawfully made without examining the contents of the sealed packet, I also conclude, contrary to the Manitoba Court of Appeal, that a collateral attack by a trial judge, either in respect of invalidity on the face of the authorization or going behind an apparently valid authorization, is contemplated by Part IV.I of the Criminal Code.

[page 624]

(iv) Cross-examination of the Deponent

Cross-examination was conducted in the present case in order to determine whether any of the preconditions of s. 178.13(1)(6) had been met. The Crown made no objection, but in other cases objections have been made, and in some instances successfully. Such cross-examination of the deponent to the affidavit was ruled improper in R. v. Blacquiere (1980), 1980 CanLII 2934 (PE SCTD), 57 C.C.C. (2d) 330 (P.E.I. S.C.); Re Regina and Collos (1977), 1977 CanLII 1948 (BC CA), 37 C.C.C. (2d) 405 (B.C.C.A.), reversing on other grounds (1977), 1977 CanLII 1951 (BC SC), 34 C.C.C. (2d) 313 (B.C.S.C.); R. v. Haslam, supra; R. v. Robinson (1977), 39 C.R.N.S. 158 (Vancouver Co. Ct. (B.C.)) The rationale was that permitting such cross-examination would, by implication at least, reveal the contents of the sealed packet declared to be confidential by s. 178.14. On the other hand, cross-examination has been permitted in R. v. Johnny and Billy, supra, and in R. v. Hollyoake (1975), 1975 CanLII 1341 (ON CJ), 27 C.C.C. (2d) 63 (Ont. Prov. Ct.) I prefer the latter view. These authorizations are made ex parte and in camera. If it is admitted that there is a right of the trial judge to go behind an apparently valid authorization, it must be possible to ask questions on cross-examination to find out if there is any basis upon which to argue invalidity. It is of little avail to defence counsel to have a statement of law that an authorization can be held to be invalid if obtained, for example, by material non-disclosure and then preclude counsel from asking questions tending to show there has in fact been non-disclosure. The questioning can be such as to enable defence counsel to get some indication of whether the authorization was properly obtained, without the disclosure of information which, in the opinion of the judge, ought to be kept confidential. Examples of such confidential information would be the identity of undercover agents and informers or specific information which would jeopardize a continuing police investigation. The interest in confidentiality expressed in s. 178.14 and defence counsel's interest in testing the validity of the authorization need not lead to conflict.

[page 625]

v) Review by a Judge Other than the Trial Judge

I have said that in my view Part IV.I contemplates that the trial judge is the proper person to review the validity of the authorization whether on its face or otherwise. The Manitoba Court of Appeal, as I have indicated, thought otherwise. O'Sullivan J.A. said that Part IV.I contemplated a different form of review of authorizations; he suggested the trial could be adjourned and the review of the validity of the authorization would be conducted in the court that gave the authorization. At the hearing before this Court, Crown counsel adopted this position, adding that it was preferable that the actual judge who gave the authorization be the one to review it. Absent the statutory scheme of interception of private communications, and, in particular, s. 178.16, I would agree with this view. The law recognizes a general right of review of an ex parte order by the court which made the order and preferably by the judge who made the order. The statutory provisions, however, override the common law rules. As I read s. 178.16 Parliament mandated that the trial judge conduct such a review.

The language of s. 178.16 does not suggest review by anyone other than the trial judge. The only other provision that seems to say anything about review is s. 178.14, concerning the opening of the sealed packet. This would normally be used where an attempt was being made to go behind an apparently valid authorization. As a matter of statutory construction s. 178.14 seems to contemplate that the packet may be opened by any judge of a superior court of criminal jurisdiction or a judge as defined in s. 482, and is not confined to either the court or the judge who granted the authorization. The policy consideration underlying this broader approach may lie in a desire to avoid any suggestion that the judge who granted the authorization might be inclined simply to reaffirm his previous order without serious consideration.

I do find statutory support for the proposition that the trial judge shall review an authorization, and I find no statutory support for the proposition

[page 626]

that only the judge or court that made the order can review an authorization.

There is a further point. Any decision of the trial judge regarding admissibility of evidence, therefore including questions as to the validity of authorizations, will be subject to appeal on a question of law in the ordinary way. In contrast if only the court that made the order can review an authorization, there is no right of appeal from this review because the Criminal Code does not grant an appeal.

The suggestion of O'Sullivan J.A. that the trial be adjourned for review of the authorization by the court granting the authorization would result in needless delays and be costly in terms of trial economy.

(B) Trial Judges Dealing with Authorizations Given By Judges of Higher Courts

One issue identified by the Manitoba Court of Appeal remains to be addressed. Does the situation which I have been describing change when, as here, a provincial court judge is dealing with an authorization given by a superior court judge? There are examples in the cases of inferior courts purporting to review superior court authorizations, particularly for invalidity on the face of the authorization. In none of these cases, however, was the question of a trial judge in an inferior court assessing the validity of a superior court authorization mentioned as a problem or an issue.

As earlier noted, in Charette v. The Queen, supra, this Court approved the statement [found at (1977), 1977 CanLII 55 (ON CA), 37 C.C.C. (2d) 497, at pp. 501-02] :

... it is for the trial Judge to pass upon such matters as the validity of the authorization ....

The determination of whether the statutory conditions precedent have been fulfilled rests exclusively with the trial Judge . . . .

The appeal case in Charette discloses that the trial judge was a county court judge and the authorization had been given by a superior court judge.

[page 627]

Other examples of an inferior trial court assessing the validity of a superior court authorization are: R. v. Welsh and lannuzzi (No. 6) (1977), 1977 CanLII 1215 (ON CA), 32 C.C.C. (2d) 363 (Ont. C.A.); R. v. Crease (No. 2) (1980), 1980 CanLII 2967 (ON CA), 53 C.C.C. (2d) 378 (Ont. C.A.); R. v. Cardoza (1981), 1981 CanLII 3329 (ON SC), 61 C.C.C. (2d) 412 (York Co. Ct. (Ont.)); R. v. Gabourie (1976), 1976 CanLII 1336 (ON CJ), 31 C.C.C. (2d) 471 (Ont. Prov. Ct.); R. v. Hancock and Proulx (1976), 1976 CanLII 1364 (BC CA), 30 C.C.C. (2d) 544 (B.C.C.A.)

None of the above cases is persuasive in view of the fact that the inferior court/superior court problem was not addressed, but it is curious that it was not identified as a problem.

In my opinion the implicit assumption that an inferior court can attack a superior court authorization is correct. At first glance, this may sound heretical, but I think the justification lies in the statutory language. As discussed earlier, I conclude that ss. 176.16(1)(a) and (3)(b) give the trial judge, qua trial judge, the authority to decide the validity of an authorization. There is nothing in the wording of s. 178.16 which suggests that certain trial judges are in a different position than other trial judges. I would not be prepared to read in such a distinction.

If an inferior court trial judge can determine the validity of a superior court authorization for the purpose of deciding admissibility of evidence, what happens when, as in the present case, the trial judge is not authorized to order the opening of the sealed packet? The answer must be, in obedience to the statutory language, that the trial be adjourned to allow counsel to apply under s. 178.14 for an order permitting the opening of the packet. The judge acting under s. 178.14 would not examine the contents of the packet or decide the validity of the authorization (see Bellemare, supra). That is the responsibility of the trial judge. This does not mean that the judge acting under s. 178.14 is performing a mere formality. He has a discretion whether to order opening of the packet. He may refuse, and if so the provincial court judge

[page 628]

will have to abide by that decision: see Re Regina and Kozak, supra.

III Bringing the Administration of Justice into Disrepute

After concluding that the interceptions were not lawfully made, Dubienski Prov. Ct. J. went on to hold that to admit the evidence would bring the administration of justice into disrepute. In the circumstances, this was an irrelevant consideration. Section 178.16(2) contains the only reference to bringing the administration of justice into disrepute:

178.16 (1) A private communication that has been intercepted is inadmissible as evidence against the originator of the communication or the person intended by the originator to receive it unless

(a) the interception was lawfully made; or

(b) the originator thereof or the person intended by the originator to receive it has expressly consented to the admission thereof;

but evidence obtained directly or indirectly as a result of information acquired by interception of a private communication is not inadmissible by reason only that the private communication is itself inadmissible as evidence.

(2) Notwithstanding subsection (1), the judge or magistrate presiding at any proceedings may refuse to admit evidence obtained directly or indirectly as a result of information acquired by interception of a private communication that is itself inadmissible as evidence where he is of the opinion that the admission thereof would bring the administration of justice into disrepute.

Section 178.16(2) deals with derivative evidence only, i.e. evidence discovered as a result of intercepting the private communication. It does not relate to primary evidence, i.e. evidence of the private communication itself—the wiretap. That was what was under consideration in this case. Once the interception is held to have been unlawful (and absent consent) it is inadmissible unless the curative provisions of s. 178.16(3)(b) are applied.

IV Conclusion

I conclude that Dubienski Prov. Ct. J. erred in deciding, without examining the contents of the

[page 629]

sealed packet, that none of the three alternate preconditions of s. 178.13(1)(6) had been met.

I would dismiss the appeal and confirm the order of the Manitoba Court of Appeal directing a new trial on all counts.

Appeal dismissed.

Solicitors for the appellant: Skwark, Myers, Baizley and Weinstein, Winnipeg.

Solicitors for the respondent: Manitoba Department of the Attorney-General, Winnipeg.