r. v. papalia, [1988] 2 S.C.R. 137

Frank Papalia, Bruno Monaco and Leo Cavasin Appellants

v.

Her Majesty The Queen Respondent

indexed as: r. v. papalia

File No.: 18948.

1987: November 30; 1988: September 15.

Present: Estey*, McIntyre, Lamer, Wilson and La Forest JJ.

on appeal from the court of appeal for ontario

Criminal law ‑‑ Wiretaps ‑‑ Admissibility of evidence ‑‑ Sufficiency of authorization ‑‑ Whether authorization must specifically identify motor vehicle as place of interception ‑‑ Collateral attack on order authorizing wiretap ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 178.13(2)(c).

Evidence ‑‑ Admissibility ‑‑ Wiretap evidence ‑‑ Sufficiency of authorization ‑‑ Whether authorization must specifically identify motor vehicle as place of interception.

The Crown's case against appellants depended upon wiretap evidence and certain derivative evidence. Interceptions were made in motor vehicles, and although the police knew they intended to make these interceptions when the applications for the authorizations were made, these locations were not specifically included in the locations described in the judicial authorizations. The trial judge on a voir dire held that the motor vehicles should have been described in the judicial authorizations and excluded the evidence. The Court of Appeal considered this holding to be a collateral attack upon the order of a judge of the Supreme Court of Ontario and allowed the Crown's appeal. Three sub‑issues rose out of the central issue of whether the interceptions in the motor vehicles were made in accordance with an authorization: (1) whether a motor vehicle is a "place" within the meaning of s. 178.13(2)(c) of the Criminal Code; (2) whether compliance with this section requires that a "place" known to be a target of the wiretap be expressly specified in the authorization; and (3) whether the trial judge's ruling constituted a collateral attack on the authorizations and whether his reliance on the Crown's concession that the motor vehicles were a known target prior to authorization constituted "going behind" the authorizations.

Held: The appeal should be dismissed.

Per McIntyre, Lamer and Wilson JJ.: The interceptions in the motor vehicles were made in accordance with the authorizations. A motor vehicle is or may be a "place" within the meaning of s. 178.13(2)(c) of the Criminal Code. That word, when used without specific definition, should be given a meaning consistent with the scope and nature of the offence to which it relates. The requirement of s. 178.13(2)(c) that the authorization describe the place of interception was met by paragraphs 4 and 5 of the authorizations. The motor vehicles of the two appellants, who were specifically named in the authorizations, were consequently covered by the authorizations. The interceptions, therefore, were lawful under Part IV.1 of the Code and admissible in evidence. It was unnecessary to deal with whether the authorizations should have gone further and described the automobiles which were the targets of the interception. That argument was a collateral attack upon the authorizations and not available to the appellants.

Per La Forest J.: The appeal should be dismissed solely on the basis that the judge's manner of dealing with the authorization constituted a collateral attack upon the authorization.

Cases Cited

By McIntyre J.

Applied: Lyons v. The Queen, 1984 CanLII 30 (SCC), [1984] 2 S.C.R. 633; Wiretap Reference, 1984 CanLII 31 (SCC), [1984] 2 S.C.R. 697; Wilson v. The Queen, 1983 CanLII 35 (SCC), [1983] 2 S.C.R. 594; R. v. Musitano (1985), 1985 CanLII 1983 (ON CA), 24 C.C.C. (3d) 65; referred to: R. v. Saunders (1906), 1906 CanLII 145 (ON CA), 12 O.L.R. 615, aff'd (1907), 1907 CanLII 3 (SCC), 38 S.C.R. 382; R. v. Thompson (1920), 1920 CanLII 529 (ON SC), 48 O.L.R. 163; Hutt v. The Queen, 1978 CanLII 190 (SCC), [1978] 2 S.C.R. 476; R. v. Crease (No. 2) (1980), 1980 CanLII 2967 (ON CA), 53 C.C.C. (2d) 378; R. v. Blacquiere (1980), 1980 CanLII 2934 (PE SCTD), 57 C.C.C. (2d) 330; R. v. Cardoza (1981), 1981 CanLII 3329 (ON SC), 61 C.C.C. (2d) 412.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C‑34, ss. 178.13(2)(c), 179(1), 225, 306(4), 309, 618(2)(a).

APPEAL from a judgment of the Ontario Court of Appeal (1984), 1984 CanLII 2190 (ON CA), 47 O.R. (2d) 289, 13 C.C.C. (3d) 449, 41 C.R. (3d) 366, allowing an appeal from a judgment of Dunlap Co. Ct. J. on a voir dire. Appeal dismissed.

Brian H. Greenspan and Kevin LaRoche, for the appellants.

Brian J. Gover, for the respondent.

The judgment of McIntyre, Lamer and Wilson JJ. was delivered by

1. McIntyre J.‑‑This appeal comes to the Court as of right, pursuant to the provisions of s. 618(2)(a) of the Criminal Code, R.S.C. 1970, c. C‑34. The appellants with two others were indicted and tried in the County Court by judge alone on an indictment which alleged a conspiracy to defraud the Government of Canada. It was in the following terms:

That they, between June 1, 1979 and November 30, 1979 at the City of Hamilton in the Judicial District of Hamilton‑Wentworth and elsewhere in the Province of Ontario unlawfully did conspire together, each with one or more of the others and with Antoinette Pugliese and other persons at present unknown, to, by deceit, falsehood or other fraudulent means, defraud the Government of Canada and the Canadian Home Insulation Programme, of money or funds in the bank having a value exceeding two hundred dollars ($200.00), contrary to Section 338(1)(a) and 423(1)(d) of the Criminal Code of Canada.

The Crown's case depended upon a series of electronically intercepted private communications made in Hamilton and Burlington and, in addition, the Crown sought to introduce certain derivative evidence obtained as a result of the interceptions. All the interceptions were made under the authority of two judicial authorizations, one given by Saunders J., of the Ontario Supreme Court, on June 21, 1979 (renewed on August 17, 1979 by Blair Co. Ct. J.), and the second authorization was granted by Blair Co. Ct. J. on October 18, 1979. Only two paragraphs from the authorizations come under consideration in this appeal. Clause 4, appearing in each, provided that the private communications of each of the appellants could be intercepted:

4. ...

(a) By the use of audio transmitter and receiver, an electromagnetic, acoustic device sometimes referred to as a microphone and amplifier installed at or near the addresses described in paragraph five (5) of the Authorization, or at or near such further other locations, both stationary or mobile, for which there are reasonable and probable grounds to believe such locations may be used by any person or persons described in paragraph three (3) of this Authorization for the purpose of carrying out private communications for the purposes as specified in paragraph one (1) of this Authorization . . . .

Clause 5 of each specified various addresses at which interceptions could be made and then provided that, in addition, interceptions could be made:

5. ...

(n) . . . at or near such further other locations for which there are reasonable and probable grounds to believe that the persons described in paragraph three (3) of this Authorization may carry on private communications in respect of the offences as set out in paragraph one (1) of this Authorization.

2. Certain of the interceptions were made in the automobiles of Papalia and Monaco in which the police had surreptitiously placed listening devices. It was conceded that at the date of the application for the first judicial authorization the police were aware of the existence of the automobiles, having made observations of Papalia and Monaco conversing in them. It was conceded as well that the police at that time intended to intercept communications made in the vehicles. The vehicles were not, however, specifically identified in the authorizations as places of interception. Other interceptions were made in the board room and office of a business located at 20 Railway Street in Hamilton. The police entered these premises surreptitiously and installed a telephone tap and room listening devices.

3. In a voir dire held by the trial judge to decide on the admissibility of the interceptions, the appellants raised two arguments. First, they submitted that with the exception of the telephone interceptions, all the interceptions were unlawful because they had been obtained by unlawful trespass by the police on private property. This argument was rejected in the courts below, and has now been settled by the decisions of this Court in Lyons v. The Queen, 1984 CanLII 30 (SCC), [1984] 2 S.C.R. 633, and the Wiretap Reference, 1984 CanLII 31 (SCC), [1984] 2 S.C.R. 697. The second argument was that the evidence obtained by the installation of the listening devices in the appellants' automobiles was inadmissible because, while the police knew of the vehicles as intended places of interception before they applied for the authorization, the vehicles were not specifically identified. This, it was contended, is required by s. 178.13(2)(c) of the Code which provides that an authorization shall:

178.13 ...

(2) ...

(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; [Emphasis added.]

The trial judge gave effect to this argument. He found that the automobiles in question were private places within the meaning of Part IV.1 of the Code. Since the police had intended to install listening devices in them for the purpose of intercepting private communications from the outset, they should have been specifically identified in the authorizations as places of interception in accordance with s. 178.13(2)(c). In the absence of a general description of the automobiles in the authorizations, which could have been given by reference to licence numbers or vehicle make, it could not be held that the motor vehicles were covered. He therefore excluded the evidence of the interceptions and certain derivative evidence obtained as a result. The remaining Crown evidence was not considered sufficient to support a conviction and the appellants were acquitted.

4. The Crown's appeal was allowed. Brooke J.A., writing for a unanimous court (Brooke, Arnup and Blair JJ.A.), considered that the trial judge's holding that the motor vehicles should have been specifically mentioned in the authorizations amounted to a collateral attack upon the order of a judge of the Supreme Court of Ontario. In this, he relied on Wilson v. The Queen, 1983 CanLII 35 (SCC), [1983] 2 S.C.R. 594, a judgment of this Court rendered after the ruling at trial. Brooke J.A. said that the trial judge was bound to accept the validity of the authorization. To inquire into whether or not the vehicles should have been specified in the authorization as "known places" at the date of the application for authorization was to go behind the authorization. It should have been taken at face value. This would have led to the conclusion that clauses 4 and 5 were sufficient to authorize the installation of the listening devices and the interceptions in the two vehicles.

5. In this Court the appellants framed the issues arising in these terms. They said the central issue to be determined is whether the interceptions in the automobiles were made in accordance with an authorization, the terms of which comply with Part IV.1 of the Code. They said that three sub‑issues arose and they set them out in their factum in the following manner:

1. Were the automobiles `places' within the meaning of Section 178.13(2)(c) of the Criminal Code?

2. Does compliance with Section 178.13(2)(c) require that a place' known to be a target of the interception prior to the authorization be expressly specified as a place' in the authorization?

3. Did the ruling of the learned Trial Judge that a place' known to be a target of interception must be expressly specified in the authorization constitute a collateral attack on the authorization to intercept the Appellant's private communications or did the learned Trial Judge's reliance upon the concession of Crown counsel that the automobiles were a known target of interception prior to the authorization constitute going behind' the authorization?

In respect of the first two issues, it was argued that automobiles are "places" within the meaning of that expression in s. 178.13(2)(c) of the Code and, therefore, the automobiles in this case should have been named and described, if only by a vehicle name or licence number in the authorization. The third point concerned the question of whether the trial judge, in concluding that a place known to be a target for interception ought to have been included in the authorization, made a collateral attack on the authorization an order of the Supreme Court of Ontario.

6. The Crown concedes that an automobile is or may be a "place" within the meaning of s. 178.13(2)(c) of the Code. This, in my view, was a concession properly made. An automobile, under the clear wording of s. 178.13(2)(c), may be a place at which private communications may be intercepted. As pointed out by the appellants, the word "place" is defined in various sections of the Code in narrow and specific terms. For example, s. 179(1) of the Code defines common bawdy‑houses, common betting houses, common gaming houses, and disorderly houses in narrow and specific terms. The same is true of s. 306(4) which defines "place" for the purpose of ss. 306 and 309 in similar narrow terms. It is evident, however, that in employing such limited definitions the Code has done so to suit the circumstances and conditions of certain offences. Therefore, when the word is used without specific definition, it would be reasonable to give it a meaning consistent with the scope and nature of the offence to which it relates. In R. v. Saunders (1906), 1906 CanLII 145 (ON CA), 12 O.L.R. 615 (C.A.), affirmed in this Court (1907), 1907 CanLII 3 (SCC), 38 S.C.R. 382, where an accused was charged with keeping a common betting house because of his operation of a mobile betting booth at a race track, Moss C.J.O. said, at p. 619:

The Courts have declined to define a place in general terms ‑‑ but they recognize the principle that "place" must be in some sense fixed and ascertained, and the inquiry is whether the facts of the particular case shew that the person charged was making such use of a house, office, room or other place, in which he was operating, as to bring him within the Act.

And see, as well, R. v. Thompson (1920), 1920 CanLII 529 (ON SC), 48 O.L.R. 163, where an accused was charged with keeping a disorderly house or a place for prostitution. The accused was a taxi driver and permitted the use of his taxi for this purpose. In his defence it was argued that an automobile was not a place, as defined in s. 225 of the Code as it then stood, and that a place must have some fixed character as concerns its immediate surroundings. Orde J. referred to the Saunders Case and, at p. 167, said:

The fact that the car is moved from spot to spot makes no difference, in my opinion. The prisoner was allowing his car to be used by prostitutes for the purposes of prostitution. There was a localization of the acts within the confines of the car, and, in my opinion, it then became the `place' where the acts of prostitution took place. The analogy between this case and the case of the moveable booth in the Saunders case is complete.

I would also observe that this Court in Hutt v. The Queen, 1978 CanLII 190 (SCC), [1978] 2 S.C.R. 476, considered that an automobile could be a place. I would say, therefore, that an automobile may clearly be a place for the purpose of s. 178.13(2)(c) of the Code. Indeed, it must be observed that this proposition has been accepted, seemingly without question, from the very early days of the present Part IV.1 of the Code. Automobiles have been frequent targets of interception. The real question upon which the parties are divided is whether a vehicle known by the police to be a target for interception at, or prior to, the time of application for an authorization must be expressly stated as a place in the authorization. In the authorization with which we are concerned, the appellants, Papalia and Monaco, are both named as targets for interception. The automobiles were not specifically named. Section 178.13(2)(c) provides that an authorization shall:

178.13 ...

(2) ...

(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;

To satisfy the requirement that the authorization must "generally describe the place at which private communications may be intercepted, if a general description of that place can be given", the Crown must rely on the passages from the authorizations extracted, supra, clauses 4 and 5 of each order.

7. The appellants say that the automobiles were both known to the police at the time of the application for the authorization and that they were at that time intended as targets for interception. They should have been specifically named. This could readily have been done, they argued, by reference to the licence numbers or to the makes and models or year of manufacture of the vehicles. They invoke the principle stated in such cases as R. v. Crease (No. 2) (1980), 1980 CanLII 2967 (ON CA), 53 C.C.C. (2d) 378 (Ont. C.A.); R. v. Blacquiere (1980), 1980 CanLII 2934 (PE SCTD), 57 C.C.C. (2d) 330; R. v. Cardoza (1981), 1981 CanLII 3329 (ON SC), 61 C.C.C. (2d) 412, that where s. 178.13(2)(c) requires that an authorization state the identity of persons, if known, failure to name a known person will render the interception of his private communications inadmissible. This proposition by analogy, it is argued, applies where known locations are not specified.

8. The Crown's position is simply stated. It argues that the evidence from the interceptions made in the cars is admissible because it was obtained in accordance with a valid judicial authorization. Section 178.13(2)(c) requires that the authorization generally describe the locations or places of interception. This was done in the case at bar and paragraphs 4 and 5, reproduced above, give an adequate general description of the places of interception. The Crown relies on this point on R. v. Musitano (1985), 1985 CanLII 1983 (ON CA), 24 C.C.C. (3d) 65 (Ont. C.A.) This case involved several other issues, but in the judgment of the court (Brooke, Lacourcière and Robins JJ.A.), at pp. 69‑70, facts somewhat similar to the case at bar were considered. An authorization had been given which gave wide powers of interception in a basket clause and, in addition, authorized interception of "Any motor vehicle used by any of the persons set out in paragraph 5 at any location", and then provided further:

5. (b) and at or near such further or other locations both stationary and mobile for which there are reasonable and probable grounds to believe the persons described in paragraph three (3) of this Authorization may carry on private communications in relation to the offences specified in paragraph one (1) of this Authorization.

Dealing with the question of interceptions made in the automobile of one Wala, held to be covered as a target for interception under the basket clause, the Court said, at p. 70:

The appellants Wala and Cummings submit that the interception of their private communication in her automobile is not admissible, as it was unlawful, because that location was not authorized. They submit that at the time the application for the authorization was made, the police knew the licence number and particulars of her automobile. It ought, therefore, to have been included as a designated specific location at which the interception of private communications might be made. We do not agree that this was necessary or that the absence of the particulars in the circumstances was fatal to the lawfulness of the interception. The authorization was clear and sufficient and the automobile in question fell within the description therein. In the result, there was no improper delegation to the police of the power to select whose communications should be intercepted or where the interception should be made as in R. v. Paterson, Ackworth and Kovach (1985), 1985 CanLII 167 (ON CA), 18 C.C.C. (3d) 137, 44 C.R. (3d) 150 (Ont. C.A.). We agree with the trial judge that the interceptions in question were lawfully made and admissible.

9. I consider that this statement is equally applicable to the case at bar and, in fact, decisive in favour of the Crown's position. The cars of the two appellants who were specifically named in the authorizations were covered, in my view, by clauses 4 and 5 of the authorizations, and the interceptions were, therefore, lawful under Part IV.1 of the Code and admissible in evidence.

10. It is my view that it is unnecessary to deal with the argument that the authorization should have gone further and described the automobiles which were the targets of the interception. In that respect I am in agreement with Brooke J.A. in the Court of Appeal when he categorizes that argument as a collateral attack upon the authorization and in accordance with Wilson v. The Queen, supra, it is not available to the appellants. I would dismiss the appeal.

The following are the reasons delivered by

11. La Forest J.‑‑I have had the benefit of reading the judgment of Justice McIntyre and would dismiss the appeal solely for the reason set forth in the last paragraph of his judgment.

Appeal dismissed.

Solicitors for the appellants: Greenspan, Arnup, Toronto.

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

• Estey J. took no part in the judgment.