Grabowski v. The Queen, [1985] 2 S.C.R. 434
Kurt Grabowski Appellant;
and
Her Majesty The Queen Respondent.
1985: May 22; 1985: November 21.
Present: Dickson C.J. and Beetz, McIntyre, Chouinard, Lamer, Wilson and Le Dain JJ.
on appeal from the court of appeal for quebec
Criminal law ‑‑ Trial by jury ‑‑ Irregularities ‑‑ Reference to alleged prior acts in Crown’s argument ‑‑ Recorded conversations referring to accused’s criminal past submitted to jury ‑‑ Prejudice caused the accused removed by judge’s charge to jury.
Criminal law ‑‑ Interception of private communications ‑‑ Validity of authorization ‑‑ Part of authorization held invalid ‑‑ Authorization severable ‑‑ Interceptions made pursuant to valid part of authorization admissible ‑‑ Criminal Code, ss. 178.11(1), (2), 178.12(1), 178.13(2).
Appellant and five other persons were charged with conspiracy to traffic in a narcotic and with trafficking in a narcotic, namely P.C.P. After the preliminary inquiry, the charge laid against the caretaker of the building where the P.C.P. was made was withdrawn. At his trial before a jury appellant was convicted, and his appeal to the Court of Appeal was dismissed. The appeal at bar was based on three grounds: did the Court of Appeal err in law (1) in affirming the judgment of the trial judge which dismissed a motion for a mistrial made as a result of certain comments contained in the argument of counsel for the Crown regarding alleged prior acts; (2) in finding that the trial judge did not err in refusing to delete from recorded conversations passages referring to appellant's criminal past; and (3) in finding that the authorization to intercept the private conversations was legal? Appellant argued that this authorization was not in keeping with the provisions of the Code since, first, the person named in the authorization, the building caretaker, was only a "straw man" whose name was used as a pretext for obtaining authorization to intercept the private communications of any person using the building where the P.C.P. was made, and second, the authorization was too wide and did not have the necessary limitations as to the persons whose communications could be intercepted and the place where this could be done.
Held: The appeal should be dismissed.
The trial judge did not err in dismissing the motion for a mistrial made by appellant. In his charge to the jury, the trial judge was able to remove any prejudice which the comments of counsel for the Crown may have caused him. The trial judge clearly indicated to the jury that they were not to take into account the comments by the Crown regarding the alleged prior acts committed by appellant.
The effect of this direction was also to remove any prejudice which the passages not deleted from the recorded conversations may have caused appellant. The comments of the Crown were based on one of the three passages not deleted. The jury was certainly able to understand from the trial judge's direction that any evidence as to appellant's criminal past must be disregarded.
There is no basis for finding the authorization unlawful. The mere fact that the charge against the building caretaker was withdrawn does not establish that the use of his name in the application for an authorization was a fiction. The record as it stands does not support this conclusion. It might as well be said that in view of his function as a caretaker and the extent of the activities suspected, and which in fact occurred in the building, the signatory of the sworn statement could believe in good faith, at the time of the application for an authorization, that he was in league with the others.
Finally, when there is a clear dividing line between the good and bad parts of an authorization, and they are not so interwoven that they cannot be separated but are actually separate authorizations given in the same order, the court can divide the order and preserve the valid portion, which then forms the authorization. In such a case interceptions made under the valid authorization are admissible. In the case at bar, without the offending paragraph the authorization is perfectly valid. Since this paragraph was not used, it can be excluded and all the conversations intercepted by authority of an otherwise valid authorization are admissible.
Cases Cited
R. v. Paterson, Ackworth and Kovach (1985), 1985 167 (ON CA), 18 C.C.C. (3d) 137; R. v. Munroe (1985), 1985 ABCA 135, 38 Alta. L.R. (2d) 189, applied; R. v. Ritch (1982), 1982 ABCA 164, 69 C.C.C. (2d) 289, aff'd sub nom. R. v. Brese, 1984 143 (SCC), [1984] 2 S.C.R. 333; R. v. Blacquiere (1980), 1980 2934 (PE SCTD), 57 C.C.C. (2d) 330, considered.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34, ss. 178.11(1), (2) [added 1973‑74 (Can.), c. 50, s. 2], 178.12(1) [added 1973‑74 (Can.), c. 50, s. 2; am. 1976‑77 (Can.), c. 53, s. 8], 178.13(2) [added 1973‑74 (Can.), c. 50, s. 2; am. 1976‑77 (Can.), c. 53, s. 9].
APPEAL from a judgment of the Quebec Court of Appeal (1983), 1983 3579 (QC CA), 8 C.C.C. (3d) 78, dismissing the accused's appeal from his conviction for conspiracy to traffic in a narcotic and for trafficking in a narcotic. Appeal dismissed.
Christiane Filteau, for the appellant.
Claude Bélanger, for the respondent.
English version of the judgment of the Court delivered by
Chouinard J.‑‑At his trial before a jury, appellant was convicted of the following indictable offences:
Between April 1st, 1980 and April 28, 1980, did unlawfully conspire together with WILLIAM BRADLEY and with other unknown persons, to commit an indictable offence not included in paragraphs a, b or c of Section 423(1) of the Criminal Code, to wit: trafficking in a narcotic, that is, P.C.P. (phenyl cyclohexyl piperidine), contrary to Section 4(1) of the Narcotic Control Act, R.S.C. 1970, c. N‑1, committing thereby an indictable offence pursuant to Section 423(1)(d) of the Criminal Code;
Between April 1st, 1980 and April 28, 1980, did unlawfully traffic in a narcotic, to wit: approximately 7.58 pounds of P.C.P. (phenyl cyclohexyl piperidine), contrary to Section 4(1) of the Narcotic Control Act, R.S.C. 1970, c. N‑1, committing thereby an indictable offence pursuant to Section 4(3) of the said Narcotic Control Act.
His appeal to the Court of Appeal was dismissed unanimously: (1983), 1983 3579 (QC CA), 8 C.C.C. (3d) 78.
Appellant summarized the facts as follows:
[TRANSLATION] Appellant was arrested on April 28, 1980 with the co‑accused MARUSKA, DI SALVO, THOMAS and BRADLEY, at 620 rue St‑Jacques, Montréal.
This is a vacant commercial building. In the basement there is a garage and storage rooms. The caretaker is one Wayne Murphy; he was arrested and charged with the others; however, at the preliminary inquiry he was called as a witness by the Crown, which withdrew the charges against him.
The building was searched immediately after the arrests. Certain objects were seized and later produced at the trial. Two tanks containing P.C.P. were found, one of them behind the caretaker's desk and containing 7.58 pounds of P.C.P., the other in the first floor ceiling and containing 42 grams of P.C.P.
Traces of P.C.P. were found on various articles (a barrel, a mixer and the clothes of certain of the accused, including appellant).
The evidence presented by the Crown against appellant and his co‑accused at the trial rested primarily on the testimony of police officers who observed the searched building and on the entering in evidence of the material and articles connected with P.C.P. that were seized at 620 rue St‑Jacques.
The police observation evidence established that one of the accused, MARUSKA, was seen at 620 rue St‑Jacques on April 25, 1980. The latter confirmed this in his testimony, explaining that he had indeed gone to the aforementioned location with two of the co‑accused (DI SALVO and THOMAS) to discuss renting the empty premises with the caretaker. Maruska testified that he also saw chemicals and various kinds of equipment: so far as he knew, these items were to be sold following a bankruptcy. He got this information from the caretaker.
However, the Crown's argument is that the most overwhelming evidence against appellant rests on the latter's conversations with the co‑accused. These conversations established, in the view of the Crown, knowledge and production of P.C.P. by the accused. Cpl. Bell, who was in charge of the investigation, identified the voices of each of the accused, except Di Salvo.
Only the accused MARUSKA entered a defence.
Maruska testified that he did not participate in producing the P.C.P., and believed that Bradley was making a perfectly legal product. This belief was based on research which he did with Bradley at McGill University Library. Bradley denied any participation in the final manufacture of P.C.P. He admitted having made certain tests, but said he was unaware that the product was illegal.
Appellant Grabowski did not testify and called no witnesses.
- In this summary by appellant, respondent only disputed the statement that [TRANSLATION] "the most overwhelming evidence against appellant rests on the latter's conversations with the co‑accused". Instead, respondent argued, the offences were established by all the evidence which she presented to the jury. Respondent further made the following additional points, not disputed by appellant:
[TRANSLATION] Appellant was arrested at 1 a.m. on Monday, April 28, 1980, as he was about to leave the rear door of an office building located in the heart of the financial district of Montréal, at 620 St‑Jacques West.
The building in question was an office building most of which was tenanted.
Appellant and his accomplices had no right of access to the building.
Appellant was seen at about 9:55 a.m. on Sunday, April 27, as he was leaving the building; he returned a few minutes later and it was not until he was arrested that he was about to leave with his accomplices.
Appellant fled inside the building when the police arrived.
The very strong smell of chemicals noticeable inside the building.
In the part of the basement containing the lockers in which the equipment and chemicals used to manufacture P.C.P. were stored, the floor was wet and had recently been washed.
The lower part of appellant's trousers was wet.
The keys to the building were found on the ground a few feet from where appellant was finally stopped by the police, near the entrance at the front of the building.
Radio equipment of the "walkie‑talkie" type was found on the accomplices, Thomas, Di Salvo and Bradley, when they were arrested.
These three items of radio equipment operated on the same frequency as a fourth item found in one of the basement lockers.
Radio equipment of the "scanner" type was seized: inter alia, it could get three radio frequencies of the RCMP and one radio frequency of the M.U.C. Police.
Phencyclidine (P.C.P.) was found on the clothing of appellant and the other accomplices arrested with him.
P.C.P. was found in the basement in a barrel used as a tank and on a mixer placed in the barrel.
A preliminary product, piperidine cyclohexane carbonitrite (P.C.C.), was found in the basement and on the ground floor.
Maruska had bought heating strips identical to those found in the basement of the building and those shown on a diagram found on him when he was arrested.
The instructions for use of the heating strips were found on appellant Thomas when he was arrested.
The products necessary for the manufacture of P.C.P. were found in two of the lockers in the basement at 620 St‑Jacques West, where appellant and his accomplices were arrested.
Certain liquid products used to manufacture P.C.P. found at the location were replaced by water in their containers, so that the containers appeared to be full.
Appellant raised three grounds, stated in the form of questions.
The first question is as follows:
[TRANSLATION] Did the Quebec Court of Appeal err in law in upholding the validity of the judgment of the learned trial judge who dismissed a motion for a mistrial made as a result of certain comments contained in the argument of counsel for the Crown?
- Appellant alleged that counsel for the respondent, during his argument, had referred to alleged prior offences. The passage of the argument giving rise to this complaint is as follows:
He was talking about 80 pounds of P.C.P. I am submitting to you that it wasn't the first time they made P.C.P. there. So I'm telling you that it's not the first time. But you're not being asked to convict the accused on those previous times. You're being asked to convict the accused of only what is in the Indictment.
- This statement by counsel for the respondent was based on the following passage from the conversations intercepted:
(KG) I'm out and now I got to get the council man to mix it now.
(UM) Yeah.
(KG) I got about eighty pounds there already so, be enough for the first batch.
However, the Court was persuaded that the reference to 80 pounds did not concern the earlier production of P.C.P., but the chemical ingredients present in the makeshift laboratory which were to be used in preparing 7.49 pounds of P.C.P.
In his elaborate judgment dismissing the motion for a mistrial, the judge reviewed the intercepted conversations as a whole, and in particular all the quantities mentioned at various points. He made many calculations in arriving at his conclusion.
The judge said:
Those calculations and the above analysis confirm me in my interpretation of that passage at the end of the third conversation, as referring to ingredient products and not to finished P.C.P.
The judge later went on to pose the following question:
Hence, Crown counsel should not have made the above‑cited comment. Having done so has caused a prejudice to the four accused. The question I must now consider and resolve is: Is that prejudice irreparable or can it be remedied by appropriate comments and directives to the Jury in my Charge?
- The judge cited Beetz J.:
In the unreported judgment of the Quebec Court of Appeal in R. vs. Boka, rendered on April 11th, 1974 in Case No. 10‑000151‑72, Mr. Justice Beetz (as he then was) wrote:
[TRANSLATION] "It must be assumed that jurors have average intelligence and are capable, provided they are given legally admissible evidence and adequate directions on the law, of sufficient abstraction to be judges of fact."
On appeal to the Supreme Court of Canada, that dictum was approved.
(On the last point, it would be more correct to say that an application for leave to appeal was dismissed by this Court: [1975] 1 S.C.R. vii.)
Finally, the judge said he was persuaded that he would be able, by his charge to the jury, to remedy the damage caused the accused by the comments of counsel for the respondent and, exercising his discretion, he dismissed the motion.
In his charge to the jury, the judge restated his analysis of the intercepted conversations as a whole and the detailed calculation of the various quantities. He told them he was persuaded that the reference to 80 pounds concerned ingredients to be used in preparing P.C.P., not P.C.P. that may have been produced on some other occasion. The judge then gave the jury the following charge:
Now I suggest to you, but that is my opinion, that Bélanger was wrong in giving you his assessment of that eighty (80) pounds as referring to previous PCP, but you're not bound by what I tell you. You are free to apply to that your own opinion, your own conclusions on the evidence. It should be more than opinion. It should be conclusions.
Now, if, notwithstanding everything I have just told you, which would surprise me very much, but I've been surprised before, you agree with Bélanger's interpretation of that passage, then I tell you as a matter and directive of law that, if you agree with Bélanger that that refers to eighty (80) pounds of PCP, which you don't have in evidence here, that in law you cannot and must not construe that as constituting similar fact evidence in relation to any one of the accused here. You've heard me discuss similar fact evidence...if you choose to agree with Mr. Bélanger's interpretation of the eighty (80) pounds, you must not and you shall not in any way apply that conclusion or that opinion to any of the accused here, if you so agree with Mr. Bélanger, which again would surprise me. You must disregard entirely what he said. Put it out of your minds. It bears no relationship to this case. It is not evidence in this case, and it is not evidence in any way of the commission by any of the ...accused here of any of the... counts in the present indictment of which they stand charged.
- McCarthy J.A., after citing the same passage, dismissed this argument by appellant. He wrote, on behalf of the Court of Appeal (at p. 81):
In my view, the trial judge thus removed any prejudice that Mtre Bélanger's comments may have caused the accused. The fact that the trial judge charged the jury eight days after Mtre Bélanger made his comments is not, as the appellants argue, significant. The charge was quite clear and there is no reason to assume that the jurors were not sufficiently intelligent to understand and act on it.
I agree.
Appellant's second ground was presented as follows:
[TRANSLATION] Did the Quebec Court of Appeal err in law in finding that the learned judge did not err in law in refusing to delete from the recorded conversations passages referring to applicant's criminal past?
A number of passages from the intercepted conversations were deleted by the judge. Appellant is here referring to three passages which were not deleted, including the one already mentioned.
In dismissing this argument the Court of Appeal relied on the judge's charge to the jury, cited above. I concur in the opinion of the Court of Appeal and adopt the following passage of McCarthy J.A. (at pp. 81‑82):
However, here again, I think that the trial judge's instructions quoted above removed any prejudice that may have been caused the accused. Those instructions were occasioned by Mtre Bélanger's comments on one particular extract but any intelligent listener would, I think, have understood from them that any evidence of past similar criminal conduct was to be disregarded.
- The third ground, which was the principal focus of the pleading in this Court, concerned the admissibility in evidence of the intercepted conversations. Appellant stated it as follows:
[TRANSLATION] Did the Court of Appeal err in law in finding that the authorization to intercept private conversations was legal and in accordance with the provisions of the Criminal Code?
Appellant disputed the legality of the authorization.
The rules on the interception of communications are contained in Part IV.1 of the Criminal Code, headed "Invasion of Privacy".
The first rule is stated in s. 178.11(1):
178.11 (1) Every one who, by means of an electromagnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for five years.
- Subsection (2) of s. 178.11 lists the exceptions, including:
(2) Subsection (1) does not apply to
(b) a person who intercepts a private communication in accordance with an authorization or any person who in good faith aids in any way a person whom he has reasonable and probable grounds to believe is acting with any such authorization;
- Under s. 178.12(1) an authorization may be obtained by an application 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:
(c) the facts relied upon to justify the belief that an authorization should be given together with particulars of the offence;
(d) the type of private communication proposed to be intercepted;
(e) the names, addresses and occupations, if known, of all persons, the interception of whose private communications there are reasonable and probable grounds to believe may assist the investigation of the offence, a general description of the nature and location of the place, if known, at which private communications are proposed to be intercepted and a general description of the manner of interception proposed to be used;
(e.1) the number of instances, if any, on which an application has been made under this section in relation to the offence and a person named in the affidavit pursuant to paragraph (e) and on which the application was withdrawn or no authorization was given, the date on which each such application was made and the name of the judge to whom each such application was made;
(f) the period for which the authorization is requested; and
(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.
- Section 178.13(2) governs the content and limitation of the authorization:
178.13 (1) . . .
(2) An authorization shall
(a) state the offence in respect of which private communications may be intercepted;
(b) state the type of private communication that may be intercepted;
(c) state the identity of the persons, if known, whose private communications are to be intercepted, generally describe the place at which private communications may be intercepted, if a general description of that place can be given, and generally describe the manner of interception that may be used;
(d) contain such terms and conditions as the judge considers advisable in the public interest; and;
(e) be valid for the period, not exceeding sixty days, set forth therein.
It is apparent from para. (c) above, and the courts have consistently held, that an authorization must contain limitations on the persons whose communications may be intercepted, the place where they may be intercepted and the method of interception.
The relevant portion of the authorization in the case at bar states:
[TRANSLATION] 3. The persons whose communications may be intercepted are:
(a) William MURPHY (building caretaker); and
(b) certain other persons whose identity is at present unknown, but who have acted, are acting or may act in concert or in collusion with a person named in subparagraph (a) or with a person found in one of the places named in paragraph 4, and whose private communications may be intercepted by means of this authorization.
- The places or localities where the private communications of the persons mentioned in paragraph 3 may be intercepted are:
(a) 620 St‑Jacques West, Montréal, Que. (underground garage); and/or
(b) any other place or locality, stationary or mobile, where the persons named in paragraph 3 could be found, but the nature and location of which are at present impossible to specify.
Appellant submitted that the authorization was not in keeping with the provisions of the Code because it amounted to a "blank" authorization. He challenged it on two grounds.
First, he said that the person named, William Murphy, was a "straw man". His name was used as a pretext for obtaining authorization to intercept the private communications of any person using the commercial building in question.
Second, because of paragraph 4(b), the authorization was too wide and did not have the necessary limitations as to the persons whose communications could be intercepted and the place where this could be done. The authorization allowed [TRANSLATION] "interception of almost any conversation of anyone".
On the first point, counsel for the appellant wrote:
[TRANSLATION] WILLIAM MURPHY was arrested at the same time, but at his place of residence, and at the preliminary inquiry the Crown withdrew the charge against him. WILLIAM MURPHY then testified that he was only the caretaker of the building and had no knowledge of the suspicious acts of the accused.
The mere fact that the charge against Murphy was withdrawn does not establish that the use of his name in the application for authorization was a fiction. It might as well be said that, in view of his function as a caretaker and the extent of the activities suspected, and which in fact occurred in the building, the signatory of the sworn statement could believe in good faith, at the time of the application for an authorization, that he was in league with the others. The record as it stands does not support the conclusion that appellant suggested, based on the withdrawal of the charge.
On the second point, in my opinion ‑‑ and I say so with respect for the contrary view ‑‑ paragraph 3(b), read with paragraph 4(b), means that this authorization allowed the conversations of anyone to be intercepted anywhere.
The persons whose communications can be intercepted are William Murphy and certain other persons whose identity is unknown at present, provided the latter are in collusion with Murphy or in collusion with someone at one of the places mentioned in paragraph 4. According to paragraph 4(b), this includes anywhere that a person mentioned in paragraph 3 may be found, thus including persons whose identity is unknown.
In my opinion, the authorization consequently contains no limitation as to persons or place.
In R. v. Ritch (1982), 1982 ABCA 164, 69 C.C.C. (2d) 289, an authorization was ruled invalid and the communications intercepted inadmissible in evidence for this reason. The judgment of the Alberta Court of Appeal was affirmed by this Court sub nom. R. v. Brese, 1984 143 (SCC), [1984] 2 S.C.R. 333. The Court stated "We are in substantial agreement with the majority of the Alberta Court of Appeal". In Ritch, the relevant portion of the authorization read as follows:
The types of communication that may be intercepted are:
(a) any telecommunication made by GARRY GORDON BRESE;
(b) Any telecommunication in respect of telephone number 468‑1421 located at Suite #9, 6920‑101 Ave., Edmonton, Alta. (walk‑up apartment building) or any subsequent number as a result of change of address or telephone number; and
(c) any oral communication made by GARRY GORDON BRESE and/or another person or persons at Ste #9, 6920‑101 Ave., Edmonton, Alta. or at such other public or private places within the jurisdiction of this Court as may be resorted to by GARRY GORDON BRESE.
The police had intercepted all calls through the telephone number mentioned in paragraph (b), regardless of the identity of the persons speaking, and the prosecution had entered some 120 telephone conversations in evidence. The question was whether paragraphs (a) and (b) could be read together, so that the authorization in (a) was limited by (b) as to place and that in (b) was limited by (a) as to persons. The Alberta Court of Appeal held that, in view of the semi‑colon placed at the end of paragraph (a), they could not be read with each other. The effect of this punctuation mark was to make paragraphs (a) and (b) two separate authorizations which did not contain the limitations, as to place in (a) and as to persons in (b), required by s. 178.13(2)(c). All the conversations intercepted were accordingly found to be inadmissible.
At pages 294‑95, the Court said:
If para. 2(a) and (b) are to be read together the semicolon following the name "Brese" in para. 2(a) must be deleted, the letter "(b)", denoting the subparagraph, must be deleted and, finally, the words "any telecommunication" where they appear in para. 2(b) become redundant and must be deleted.
In our view para. 2(c) is significant in that it demonstrates that when the framers of the order wanted to combine name and location they did so in one paragraph. True it is that para. 2(c) is concerned with oral communications, but that, in our opinion, is irrelevant. Paragraph 2(c) adds further strength to the argument that para. 2(a) and (b) cannot be read together.
We conclude that the investigating officers wanted a "basket clause", they obtained what they thought was a "basket clause", and they acted upon the authorization as if it was a "basket clause". They installed a "dead" monitor and they intercepted all calls to and from the telephone number specified in para. 2(b) without regard to the identity of the persons involved. Certainly they treated that paragraph as separate and apart from para. 2(a). Crown counsel now concede that para. 2(b) cannot stand alone.
It is clear that para. 2(a) is unlawful. It has no limitation as to place and purports to authorize a tap anywhere in Canada. As stated by counsel for Ritch and Andrews it is "like a search warrant without any limitation as to place".
I note that the foregoing passage appears to suggest that paragraph 2(c) was valid, as in concluding that paragraphs (a) and (b) were invalid the Court emphasized the difference in wording between them and paragraph (c); but the case was not concerned with paragraph 2(c).
I therefore consider that if that were all appellant should succeed.
However, respondent submitted alternatively that the authorization in the case at bar is severable and that if paragraph 4(b) is excluded, it is perfectly valid. Accordingly, the interceptions made under paragraphs 3(b) and 4(a) are admissible. All the conversations at issue were intercepted at 620 St‑Jacques West, as coming from the makeshift laboratory used by the accomplices.
In Ritch paragraphs (a) and (b) were considered separately, and were found to be invalid separately. On the other hand, it would appear that paragraph (c) would probably have been found to be valid. However, the question as presented in the case at bar, namely whether an authorization may be severed into valid and invalid parts, was not directly raised in Ritch.
Nevertheless, in Ritch the Alberta Court of Appeal relied essentially on a judgment of McQuaid J. of the Supreme Court of Prince Edward Island, R. v. Blacquiere (1980), 1980 2934 (PE SCTD), 57 C.C.C. (2d) 330. In that case, McQuaid J. upheld certain parts of the impugned authorizations and invalidated others. He ruled that certain intercepted communications were admissible in respect of certain of the accused and inadmissible in respect of another.
At page 332, McQuaid J. wrote:
The above‑named accused, together with seven others, stands charged with conspiracy to traffic in narcotics contrary to Section 423(1)(d) of the Criminal Code. The trial of the matter commenced with a voir dire respecting the admissibility of a large number of tapes of intercepted telephone communications as between the several accused, together with the typed transcript of selected portions of those tapes, all allegedly secured pursuant to s. 178.1 (am. 1976‑77, c. 53, s. 7) of the Code. Before the trial can proceed further, if indeed it can, it is necessary to rule on a number of points respecting admissibility raised in argument both by the Crown and the several counsel representing the accused.
- In that case the applicable portion of the authorization read as follows:
Wayne Ernest Blacquiere of Summerside, in Prince County in the Province of Prince Edward Island, labourer, and in respect of other persons whose identities are not known a general description of the place at which private communications to and from such persons may be intercepted is: 21 Heckbert Street, Apartment #3, Summerside, Prince Edward Island and any other premises in the Province of Prince Edward Island resorted to or used by the said Wayne Ernest Blacquiere or any such person who is found to be in communication with the said Wayne Ernest Blacquiere.
- For greater clarity, McQuaid J. divided this paragraph into three, at p. 337:
The first authorization was issued on December 4, 1978, effective from that date to January 31, 1979, and contained the wording above quoted, which may be broken down into three components:
(a) Wayne Ernest Blacquiere of Summerside, in Prince County in the Province of Prince Edward Island, labourer;
(b) and in respect of other persons whose identities are not now known, a general description of the place at which private communications may be intercepted is: 21 Heckbert St., Apartment No. 3, Summerside, Prince Edward Island;
(c) (and in respect to other persons whose identities are not now known), any other premises in the Province of Prince Edward Island resorted to or used by the said Wayne Ernest Blacquiere or any such person who is found to be in contact with the said Wayne Ernest Blacquiere.
- Regarding the limitations on place and persons which an authorization must contain as the legislation stands at present, McQuaid J. said the following at p. 335:
In the present amended legislation, what is to be included is:
(a) if the person whose private communication is to be intercepted is known, the name of that person together with the general identification of the place at which such interception is to take place;
(b) if the person whose private communication is to be intercepted is not known the order must contain the general identification of the place at which such interception is to take place.
- McQuaid J. found part (a) of the authorization invalid, because it contained no limitation as to place, and part (c) invalid as well because it contained no limitation as to persons or place. However, he found part (b) valid. At page 338, he wrote:
In my view, since the authorization was defective, and thus ineffective, with respect to Wayne Blacquiere, since it did not conform to the statutory requirement, and since it would be illogical to sweep him into the basket clause if he was precluded from being caught directly, the interception could not be said to be a lawful one in so far as he was concerned. On the other hand, the same interception was a lawful one in so far as the unknown was concerned under the provisions of the basket clause. The answer, I think, is to take the position, which I do, that any communication either to or from either 21 Heckbert St., or 384 North Market St., codes "Blackie" or "Keli", are not admissible as against Blacquiere, but are admissible as against whomever is the other party to any such communication. The same reasoning will apply to John McLean respecting communications to or from 215 Linden St., and to Brian Perry respecting communications to or from 1 Hillside Ave.
As to segment (c) of the authorization, I would hold this to be a nullity, in as much as it contains two unknowns, the identity of the person, and the location of the telephone service. While this might have been permissible under the pre‑1977 legislation, it does not appear to be what is contemplated under the present legislation.
Since the legislation is primarily directed at the protection of privacy, it is encumbent upon the Crown to bring itself clearly within the exceptions. I am of the opinion that it has not done so in respect to segment (a) or (c) of the authorization, but has done so in respect to segment (b), and to this extent I would hold the authorization to be valid, and that all interceptions made which fall under that category to have been lawfully made, subject to what has been stated immediately above respecting those communications.
- In Ritch, affirmed by this Court, the Alberta Court of Appeal cited several passages from the McQuaid judgment, including the following at p. 294. It is the beginning of the preceding passage, and I reproduce it again:
In my view, since the authorization was defective, and thus ineffective, with respect to Wayne Blacquiere, since it did not conform to the statutory requirement, and since it would be illogical to sweep him into the basket clause if he was precluded from being caught directly, the interception could not be said to be a lawful one in so far as he was concerned. On the other hand, the same interception was a lawful one in so far as the unknown was concerned under the provisions of the basket clause.
- Immediately following this, still at p. 294 of Ritch, there is the following passage by the Alberta Court of Appeal:
Even though in R. v. Blacquiere the authorization in issue did not divide the telecommunications to be intercepted into subsections in the manner of the authorizations before us the court there held that because the mandatory requirement of s. 178.13 (2)(c) was not met the authorization was unlawful as it affected the accused Blacquiere. The court refused to read the operative part of the authorization as one.
With respect we agree with the reasoning of McQuaid J. . . .
In R. v. Paterson, Ackworth and Kovach (1985), 1985 167 (ON CA), 18 C.C.C. (3d) 137, rendered on February 5, 1985, the Ontario Court of Appeal unanimously held that an authorization was severable and that interceptions made on the basis of the valid portions of the authorizations were admissible.
Among other clauses the authorization in that case contained the following:
(3)(b) Authorization is also hereby given to intercept the private communications of persons whose identities are presently unknown, in accordance with the terms of this Authorization, provided that there are reasonable and probable grounds to believe that the interception of such private communications may assist the investigation of any of the offences stated in paragraph 1 above, whether or not any such person described in paragraph 3(a) above is party to such private communications.
- About this clause Martin J.A. wrote for the Court at p. 148:
Paragraph 3(b) of the authorization granted by Judge McCart does not restrict the interception of private communications of unknown persons to persons at particular premises as in R. v. Samson et al. (1983), 1983 1918 (ON CA), 9 C.C.C. (3d) 194....Nor does the authorization restrict the interception of private communications of unknown persons to persons who are associating with, dealing with or in contact with the named persons in respect of which the authorization is granted. In my view, the "basket clause" is invalid.
- Martin J.A. further wrote, at p. 149:
The invalidity of the "basket clause" is, however, of no assistance to the respondents in the present case, since it is clear that it was never used. All private communications intercepted under Judge McCart's authorization took place at 124 Cantley Cres. in London, the residence of Brian Daley. Brian Daley was a party to each of the communications, save in an interception on June 28, 1982 between Daley and the respondent Paterson when Daley broke off the conversation temporarily and apparently requested his wife, Helen Daley, to talk to Paterson, while he went to the bathroom. On Brian Daley's return he resumed his conversation with Paterson. The brief conversation between Helen Daley and Paterson, even if inadmissible, was of little consequence in light of the other evidence.
- He went on:
Further, I am of the opinion that the "basket clause" is severable and does not affect the validity of the balance of the authorization.
- Martin J.A. concluded on this point, at pp. 149‑50:
In the present case, there is a clear line of demarcation between the good and the bad parts of the authorization; they are not interwoven. The offending paragraph is not vital to the part of the authorization relating to the interception of the private communications of named persons and its excision in the circumstances of this case does not subvert the policy of the legislation. In the present case, since all the interceptions were made pursuant to the valid part of the authorization, the necessity for separating evidence flowing from the valid and invalid parts does not arise. The "basket clause" was never resorted to, it generated no evidence, nor any derivative evidence.
The Alberta Court of Appeal relied on this case in R. v. Munroe (1985), 1985 ABCA 135, 38 Alta. L.R. (2d) 189. Kerans J.A., speaking for the Court, separated the objectionable part from the valid part of an authorization the remainder of which was in accordance with the law.
I adopt the passages cited above from Martin J.A.
When there is a clear dividing line between the good and bad parts of an authorization, and they are not so interwoven that they cannot be separated but are actually separate authorizations given in the same order, the Court in my opinion can divide the order and preserve the valid portion, which then forms the authorization. In such a case interceptions made under the valid authorization are admissible.
If paragraph 4(b) is excluded in the case at bar, the authorization is perfectly valid. As in Paterson and Munroe, the offending paragraph was not used in any way. All the interceptions were made at 620 St‑Jacques West. I consider that paragraph 4(b) can be excluded and that the conversations intercepted by authority of an otherwise valid authorization are admissible.
For these reasons, I would dismiss the appeal.
Appeal dismissed.
Solicitor for the appellant: Christiane Filteau, Montréal.
Solicitor for the respondent: Roger Tassé, Ottawa.
