R. v. Meltzer, [1989] 1 S.C.R. 1764

Leonard Earl Meltzer Appellant

v.

Harry Laison and Her Majesty The Queen Respondents

indexed as: r. v. meltzer

File No.: 20041.

1988: April 28, 29; 1989: June 29.

Present: Beetz*, McIntyre, Lamer, Wilson, Le Dain*, La Forest and L'Heureux‑Dubé JJ.

on appeal from the court of appeal for british columbia

Criminal law -- Wiretap authorization or renewal -- Application to set aside renewal (Wilson application) to prevent admission of wiretap evidence -- Whether a right of appeal exists from a Wilson application -- Whether Wilson v. The Queen correctly decided -- Whether Charter of Rights guarantees a right of appeal.

Appellant petitioned the British Columbia Supreme Court to set aside the renewal of an application to intercept private communications -- Wilson application -- in an attempt to prevent the admission of the wiretap evidence. Notwithstanding the allegations made in the petition, there was no evidence to suggest that the renewal was irregular or improper; no application was made to have the packet opened. The petition was dismissed and the Court of Appeal declined to hear an appeal from that decision for want of jurisdiction. Three issues were before the Court: (1) whether a "Wilson" application had a civil as well as a criminal nature which would extend jurisdiction to the Court of Appeal under s. 6 of the Court of Appeal Act; (2) whether this Court's decision in Wilson v. The Queen should be reconsidered; and (3) whether a right of appeal exists from orders granting authorizations and renewals if Charter rights could be affected.

Held: The appeal should be dismissed.

A motion for review of an authorization rests solely upon the provisions of the Criminal Code. The adoption of a procedure derived from the civil law for a review of an authorization did not have the effect of severing the motion from the criminal process and making it civil in nature.

There was no need to reconsider Wilson v. The Queen. That case merely applied established principles of law and any other course would offend well established rules of judicial review. It is the Code that gives rise to any confusion and delay and the Code that does not provide for a right of appeal.

The Charter does not provide for an appeal where none is provided for by law. An interlocutory appeal in criminal cases, such as the appeal at issue, has no basis in law.

Cases Cited

Considered: Wilson v. The Queen, 1983 35 (SCC), [1983] 2 S.C.R. 594; referred to: Re Turangan and Chui and The Queen (1976), 1976 1405 (BC SC), 32 C.C.C. (2d) 249; R. v. Cass (1985), 1985 ABCA 128, 71 A.R. 248; R. v. Storgoff, 1945 17 (SCC), [1945] S.C.R. 526; Mills v. The Queen, 1986 17 (SCC), [1986] 1 S.C.R. 863.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 8.

Constitution Act, 1867, ss. 91(27), 92(14).

Court of Appeal Act, S.B.C. 1982, c. 7, s. 6.

Criminal Code, R.S.C. 1970, c. C‑34, ss. 178.13(3), 178.14(1)(a)(ii), 482, 602, 603, 605, 618, 719, 748.

APPEAL from a judgment of the British Columbia Court of Appeal (1986), 1986 1172 (BC CA), 29 C.C.C. (3d) 266, dismissing on a preliminary objection as to jurisdiction an appeal from a judgment of Meredith J. dismissing a petition to review an authorization for interception of private communications. Appeal dismissed.

Leonard T. Doust and Donald McKay, for the appellant.

No one appeared for the respondent Harry Laison.

A. G. Henderson and M. J. Carstairs, for the respondent Her Majesty The Queen.

//McIntyre J.//

The judgment of the Court was delivered by

MCINTYRE J. -- This appeal is against a judgment of the British Columbia Court of Appeal which held that the appellant had no right of appeal from the refusal of what has come to be known as a Wilson review of an authorization to intercept private communications: see Wilson v. The Queen, 1983 35 (SCC), [1983] 2 S.C.R. 594.

By an information sworn on August 25, 1983, the appellant was charged with one Laison with various criminal offences in connection with a company known as Palliser Resources Incorporated. They were committed to stand trial after a preliminary hearing during which the Crown put in evidence a number of interceptions of private communications. Authorization to intercept the private communications of the appellant Meltzer had been given on June 6, 1980. It was renewed on July 17, 1980 and a further renewal was granted on September 10, 1980. Most of the intercepted private communications were intercepted under the renewal granted on September 10, 1980. It is the validity of this renewal which the appellant attacks in this appeal.

By petition, the appellant sought to have the Supreme Court of British Columbia set aside the renewal. The grounds of the application were set out in this form:

(1) THAT the Renewal was granted upon an ex parte application without full disclosure of all offences or transactions being investigated and/or intercepted;

(2) THAT the Renewal was granted without full compliance with Section 178.13(3)(b) of the Criminal Code of Canada namely, an affidavit by a peace officer deposing:

"full particulars, together with times and dates, when interceptions, if any, were made or attempted under the authorization, and any information that has been obtained by any interception . . . ."

The petition was entitled "In the Matter of Section 178.13(3) of the Criminal Code of Canada" and it referred specifically to the authorization granted on the 10th day of September A.D. 1980. It was heard by Meredith J., of the Supreme Court of British Columbia, and on July 17, 1985 it was dismissed. On the hearing, the appellant did not apply to open the packet concerning the renewal and no request was made to open it. In dismissing the petition, Meredith J. said:

There are no grounds to suspect that the renewal was anything but regular and proper. Thus it seems to me that the Order to set aside or discharge the renewal would not be appropriate on either of the grounds alleged. There is nothing to suggest that the renewal was granted without full disclosure of the transactions under investigation or that it did not comply with the provisions of the section.

An appeal was taken to the Court of Appeal. The Crown made a preliminary objection that the Court of Appeal lacked jurisdiction to hear it. By judgment dated June 18, 1986, the Court of Appeal gave effect to the preliminary objection and dismissed the appeal (see (1986), 1986 1172 (BC CA), 29 C.C.C. (3d) 266). Three sets of reasons were written in each of which all arguments of the appellants were rejected.

The appellant has raised three grounds of appeal in this Court. They are set out below:

A. The Court of Appeal erred in holding that a "Wilson" application to review an Order or renewal of an Order authorizing the interception of private communications was not properly characterized as civil in nature, and therefore, that the Court did not have jurisdiction to hear an Appeal to the Court of Appeal pursuant to s. 6 of the Court of Appeal Act, R.S.B.C. 1982 [sic], c. 7 and amendments thereto.

B. In the alternative, if the Court of Appeal did not err in holding that the court did not have jurisdiction to hear an appeal from final orders of an authorizing or renewing judge, then the appellant asks this Honourable Court to reconsider this Court's decision in Wilson v. The Queen 1983 35 (SCC), [1983] 2 S.C.R. 594, 37 C.R. 3d, 97.

C. In the further alternative, authorizing and renewing judges are entrusted with the function of ensuring that the Constitutional right of citizens to be free from unreasonable search and seizure is protected; accordingly, a right of appeal must exist from orders granting authorizations and renewals.

Dealing with the first ground, it was argued that the adoption by this Court in Wilson v. The Queen, supra, of a procedure derived from civil practice for the making of an application for a review of an authorization had the effect of severing the motion from the criminal process and making it civil in nature. Its validity as a proceeding would not, therefore, rest solely upon the provisions of the Criminal Code and the constitutional authority of s. 91(27) of the Constitution Act, 1867. Rather, it would be supportable as a civil proceeding constitutionally based on s. 92(14) of the Constitution Act, 1867. The admitted fact that no such appeal is authorized in the Criminal Code would not bar the proceeding for the reason that avenues of appeal are provided in civil matters by provincial legislation. It was argued that the Court of Appeal was in error in following its earlier judgment in Re Turangan and Chui and The Queen (1976), 1976 1405 (BC SC), 32 C.C.C. (2d) 249, and the decision of the Alberta Court of Appeal in R. v. Cass (1985), 1985 ABCA 128, 71 A.R. 248 (Alta. C.A.) Both of these cases considered the matters before them as criminal in nature. Therefore, the Court of Appeal in the case at bar should have distinguished and not followed the Turangan and Cass cases because they were in error in characterizing as criminal a review of authorizations. R. v. Storgoff, 1945 17 (SCC), [1945] S.C.R. 526, was also distinguished. It was argued that the ratio in R. v. Storgoff, a case dealing with a habeas corpus application arising directly out of a criminal proceeding, could not be applicable to a Wilson review which, it was asserted, could be a proceeding entirely separate from and not necessarily linked to the criminal proceeding. The Wilson review would therefore be subject to appeal in accordance with s. 6 of the Court of Appeal Act, S.B.C. 1982, c. 7.

I would reject this argument. The question was dealt with in the Court of Appeal and I am in agreement with its treatment of the subject. Hutcheon J.A. said, at p. 275:

The decision of Mr. Justice Meredith was a judicial determination of questions of fact and law arising in proceedings under Part IV.1 of the Criminal Code (Invasion of Privacy) and in relation to the charges of indictable offences then pending against Meltzer and Laison. Without doubt, the application before him raised questions within the criminal law. I agree with this statement of Chief Justice Laycraft in R. v. Cass, Alberta Court of Appeal, May 16, 1985 (unreported), in its application to the present case: "In my view it cannot be argued that a wire tap authorization, or a review of it, or an appeal from such a review, is anything other than a criminal matter."

Seaton J.A., with whom Cheffins J.A. agreed, said, at p. 271:

I think that the application before Meredith J. was an application in the Part IV.1 proceeding in which the authorization and renewal were granted. The application had to be in that proceeding to escape being collateral. The subject matter of the application was an order made under the Criminal Code. The order was being reconsidered in the light of new evidence. The criteria for reconsideration, as for the original authorization and the renewals, is found in the Criminal Code. This application cannot be described as a civil proceeding to which the Court of Appeal Act would apply.

He then referred to the disposition made of this argument in the Alberta Court of Appeal in R. v. Cass, supra, and quoted the following passage from the words of Laycraft C.J.A. in that case:

Indeed, it is also to be observed that, while the granting of an authorization, because of its ex parte nature, may be reviewed by the court granting it, no right of appeal exists under the Criminal Code against either the grant or refusal of an authorization. That point was made by Mr. Justice McIntyre in Wilson at p. 123 [(1983), 1983 35 (SCC), 9 C.C.C. (3d) 97]. It is not surprising that if the grant of an authorization cannot be appealed, the review of that process is also not the subject of an appeal.

It is urged that in Wilson, Mr. Justice McIntyre held that an appeal from a review of the authorization is a civil matter and that the civil appeal rules therefore apply. At p. 123 in Wilson he did refer to the body of jurisprudence to be found in the law relating to civil matters but that was merely to derive assistance in formulating rules for the criminal matter before him. In my view it cannot be argued that a wire tap authorization, or a review of it, or an appeal from such a review, is anything other than a criminal matter. Indeed, Parliament's authority in the field of interception of private communications derives from its criminal law jurisdiction. An Alberta statute or rule of court relating to civil matters purporting to govern an appeal from the review of an authorization would be ultra vires: Poje et al. v. A.-G. B.C. (1953), 1953 34 (SCC), 105 C.C.C. 311, [1953] 2 D.L.R. 785, [1953] 1 S.C.R. 516; R. v. Storgoff (1945), 1945 17 (SCC), 84 C.C.C. 1, [1945] 3 D.L.R. 673, [1945] S.C.R. 526.

In the view of Seaton J.A., with which I agree, R. v. Cass cannot be distinguished.

I have referred to the judgments in the courts below in some detail because, in my view, they aptly dispose of this argument. I would add that this application to review the renewal of the authorization was simply an interlocutory motion in a criminal proceeding aimed at the exclusion of evidence in that proceeding. Section 178.14(1)(a)(ii) of the Criminal Code envisages an opening of the sealed packet. The Criminal Code provides no procedural guide for this purpose and limits the power to open to a judge of a superior court of criminal jurisdiction or a judge as defined in s. 482 of the Criminal Code. The fact that a procedural step deriving from civil practice was employed to meet this problem cannot be said to have converted the matter into anything approaching a civil appeal. It was not contended that the Criminal Code provided a statutory base for an appeal from the refusal of the review and, in my view, then this ground of appeal must fail.

The second ground advanced as an alternative, in the event that the first ground fails, asks this Court to reconsider its judgment in Wilson v. The Queen. In that case, this Court by a majority held that an authorization given by a judge with jurisdiction to do so, that is, a judge of a superior court of criminal jurisdiction or a judge as defined in s. 482 of the Criminal Code, was not subject to collateral attack before a trial judge and that the authorization must receive full effect according to its terms, save for errors or defects apparent on its face. Any application for the review of the order, and it would appear that a review was contemplated in view of the provisions of s. 178.14(1)(a)(ii) allowing the opening of the packet, should be made to the judge who made the order or a judge of the same court. It has been said that this has led to a confusion and delay and that the trial judge should, in his capacity as trial judge, have full power to open the sealed packet and review the High Court order, regardless of the status of the trial judge, and make any necessary rulings. That this procedure would probably expedite matters and remove some confusion may well be true. It is not, however, a procedure provided by Parliament, and subject to arguments relating to the application of the Canadian Charter of Rights and Freedoms** it is not, in my opinion, open to the courts to disregard the statutory provisions of Part IV.1 of the Criminal Code. If there is confusion and delay in this matter it arises from the Criminal Code itself and, subject as aforesaid, it will be for Parliament to change.

As to the confusion and delay and as to alleged procedural problems, it is my opinion that these concerns are much exaggerated. The requirement that an application to open the sealed packet, a necessary step in any application for a review, be made to a judge of a superior court of criminal jurisdiction or a judge, as defined in s. 482 of the Criminal Code, does not stem from this court's judgment in Wilson v. The Queen. It is clearly provided in s. 178.14(1)(a)(ii) that the packet shall not be opened except:

178.14 (1)

(a) . . .

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

It is evident, then, that anyone wishing to have a review of the authorization must, in any event, go to the higher court for that purpose. This step may well -- in fact certainly will -- be a source of delay in some proceedings. It need not, however, be a source of undue confusion. All courts in the land have rules which fix procedures for applications of this nature and it is not a step involving a strange practice which should confuse the profession. Once before the reviewing judge, the matter may be dealt with. It has been suggested that the sole function of the judge under s. 178.14(1)(a)(ii) is to open the package and make available its contents to the trial judge. I reject any such suggestion. It is my view that the power to open the packet and the power to review and pass upon its contents go together. Any other course would offend well established rules of judicial review, forbidding collateral attacks on orders in judgments, and would deprive the higher courts of control of the granting and reviewing of authorizations and renewals clearly conferred upon them by Parliament.

As to the complaint that no right of appeal exists from the review of such an authorization, it may be said that this is not because of the judgment in Wilson v. The Queen but simply because Parliament did not provide such right of appeal. If there is confusion and difficulty in this field it is not because of the Wilson judgment, which merely applies established principles of law, but because of the provisions of the Criminal Code. I would adopt and agree with the words of Seaton J.A. in the Court of Appeal when he said. at p. 272:

These provisions deal primarily with protection of privacy, not with evidence. Parliament designed them to protect people from unreasonable invasion of privacy by making particular invasions a criminal offence. The scheme accepts that in some cases it will be necessary for the police to breach the privacy of certain individuals. To avoid unwarranted interceptions, Parliament has required that the police first go to a judge and get his authorization. Parliament entrusted that function to county and superior court judges without a provision for an appeal. I am not persuaded Parliament erred in so doing.

I am not persuaded that there is any basis or need for a reconsideration of this Court's judgment in Wilson v. The Queen.

The third ground of appeal was set out in these terms in the appellant's factum:

C. In the further alternative, authorizing and renewing judges are entrusted with the function of ensuring that the Constitutional right of citizens to be free from unreasonable search and seizure is protected; accordingly, a right of appeal must exist from orders granting authorizations and renewals.

The argument in support of this ground, simply put, is that the rights protected or guaranteed in the Charter are of such significance that an appeal should be available where relief under the Charter is denied at first instance. In short, what is asserted is that the Charter makes obligatory a right of appeal from any legal proceeding at first instance.

At common law there were no appeals. All appeals have been the creature of statute. It has not been argued that the Criminal Code in any of its appeal sections (602, 603, 605, 618, 719, 748) provides specifically for an appeal from a refusal of a Charter remedy. Therefore, if any such specific right exists it must be found in the Charter. The question facing the Court then is: Does the Charter, because of the importance of the interests it protects, provide an appeal against a refusal of a Wilson application for review despite the fact that neither the Criminal Code nor any other legislative enactment so provides? I assume -- but do not decide -- for the purposes of dealing with this question, that s. 8 of the Charter is engaged by the interception of private communications.

I would say at the outset that in my view the Charter does not provide such an appeal. In argument, the appellant referred to what I said in Mills v. The Queen, 1986 17 (SCC), [1986] 1 S.C.R. 863, at pp. 958-59:

Again, it must be observed that the Charter is silent on the question of appeals and the conclusion must therefore be that the existing appeal structure must be employed in the resolution of s. 24(1) claims. Since the Charter has conferred a right to seek a remedy under the provisions of s. 24(1) and since claims for remedy will involve claims alleging the infringement of basic rights and fundamental freedoms, it is essential that an appellate procedure exist. There is no provision in the Code which provides a specific right to appeal against the granting, or the refusal, of a Charter remedy under s. 24(1), but appeals are provided for which involve questions of law and fact. The Charter, forming part of the fundamental law of Canada, is therefore covered and the refusal of a claim for Charter relief will be appealable by a person aggrieved as a question of law, as will be the granting of such relief by the Crown. The appeal will follow the normal, established procedure. When the trial is completed, the appeal may be taken against the decision or verdict reached and the alleged error in respect of the claim for Charter relief will be a ground of appeal. [Emphasis added.]

I would, however, add that with the approval of two more of the seven judges sitting upon the appeal, I went on to say in Mills v. The Queen, at p. 959:

The question has been raised as to whether there can be something in the nature of an interlocutory appeal in which a claimant for relief under s. 24(1) of the Charter may appeal immediately upon a refusal of his claim and before the trial is completed. It has long been a settled principle that all criminal appeals are statutory and that there should be no interlocutory appeals in criminal matters. This principle has been reinforced in our Criminal Code (s. 602, supra) prohibiting procedures on appeal beyond those authorized in the Code.

The refusal of an application for a remedy or relief based on the Charter may well raise a question of law which could be the basis of an appeal under the Criminal Code against conviction or acquittal. Accepting this principle, however, will not assist the appellants in this case. They do not seek to appeal against a conviction under the Criminal Code appeal provisions. They seek to launch an interlocutory appeal concerning the admissibility of evidence which may be adduced at a future trial. There is no statutory basis for such an appeal and the law, as expressed in Mills v. The Queen, supra, and s. 602 of the Criminal Code, does not permit interlocutory appeals in criminal cases. I am, accordingly, satisfied that the Court of Appeal was correct in holding that it had no jurisdiction to entertain this interlocutory appeal. The appellants assert under this head of the argument that "a right of appeal must exist from orders granting authorizations and renewals" (ground of appeal "C", supra). I leave open the question of whether these words frame a question of law which would be cognizable as a ground of appeal against conviction upon the completion of the trial.

I would accordingly dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Doust & Smith, Vancouver.

Solicitors for the respondent Harry Laison: Dumoulin, Black, Vancouver.

Solicitor for the respondent Her Majesty The Queen: The Ministry of the Attorney General of British Columbia, Vancouver.

*Beetz and Le Dain JJ. took no part in the judgment.

** See Errata, [[1990] 2 S.C.R. iv and [[1991] 1 S.C.R.iv