R. v. Heikel, [1989] 1 S.C.R. 1776

Paul Ferdinand Heikel, Janet Eva Heikel, Jack Donald Heikel, Lawrence Alfred Heikel, David Phillip Richard, Robert David Heikel and Norman Paul Brazel Appellants

v.

Her Majesty The Queen Respondent

indexed as: r. v. heikel

File No.: 20017.

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 alberta

Criminal law -- Wiretap authorization -- Application to set aside authorization (Wilson application) -- 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 -- Whether continued interception after targets arrested infringing right to privacy and Charter rights against self-incrimination, to retain counsel, and to trial by an independent and impartial tribunal.

Appellants, by notice of motion, sought an order setting aside authorizations to wiretap (a Wilson application) before a new trial took place. The trial had been ordered by the Court of Appeal when it set aside the acquittal of the accused. The decision dismissing the application was appealed to the Court of Appeal which dismissed the appeal for want of jurisdiction. The issues before the Court were: (1) whether a "Wilson" application had a civil nature which would support an appeal; (2) whether this Court's decision in Wilson v. The Queen should be reconsidered; (3) whether the Charter required that an appeal be available on a denial of a Charter remedy, and (4) whether an authorization to wiretap may not be given after the arrest of the target because it could result in the violation of the accused's right to privacy and of his Charter rights against self-incrimination, to retain counsel, and to trial by an independent and impartial tribunal.

Held: The appeal should be dismissed.

The first three issues on appeal should be answered in the negative for the reasons given in R. v. Meltzer, [1989] 2 S.C.R. 000. The fourth was one to be dealt with at trial and, for the reasons expressed in R. v. Meltzer, must fail.

Cases Cited

Applied: R. v. Meltzer, [1989] 1 S.C.R. 000; referred to: Wilson v. The Queen, 1983 CanLII 35 (SCC), [1983] 2 S.C.R. 594.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C-34, s. 178.16(2).

APPEAL from a judgment of the Alberta Court of Appeal dismissing an appeal from a judgment of O'Byrne J. in chambers dismissing an application to set aside authorizations to intercept private communications. Appeal dismissed.

Howard Rubin, for the appellants Paul Ferdinand Heikel, Janet Eva Heikel and Jack Donald Heikel.

Robert Sachs, for the appellant Robert David Heikel.

Murray Stone, for the appellant David Phillip Richard.

Richard Gariepy, for the appellant Lawrence Alfred Heikel.

Paul Solotki, for the appellant Norman Paul Brazel.

S. R. Fainstein, Q.C., and Kirk N. Lambrecht, for the respondent.

//McIntyre J.//

The judgment of the Court was delivered by

MCINTYRE J. -- This appeal raises the same questions which were raised in the appeal of R. v. Meltzer, [1989] 1 S.C.R. 000, and, in addition, a ground based on the fact that an authorization to intercept private communications was granted after the arrest of the intended targets.

The appellants were arrested as a result of an investigation by the Edmonton police, carried out in the summer and fall of 1982, and were charged with conspiracy to traffic in narcotics. At trial, the Crown sought to tender wiretap evidence and a voir dire was commenced to determine admissibility. Before the Crown had concluded its evidence on the voir dire, counsel for the defence moved to have the wiretap evidence excluded for violation of the Canadian Charter of Rights and Freedoms. After argument and a two-day adjournment, the trial judge held the wiretap evidence to be inadmissible, not by reason of any consideration of the Charter but by the application of s. 178.16(2) of the Criminal Code, which provides:

178.16 (1) . . .

(2) Notwithstanding subsection (1), the judge or provincial court judge 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.

No mention of this provision had been made in argument and no reliance had been placed upon it. No opportunity had been given to the Crown to conclude its voir dire or to address the question of the applicability of s. 178.16(2) before the judge ruled the evidence inadmissible. The Crown called no further evidence and the accused were accordingly acquitted. The Alberta Court of Appeal allowed the Crown appeal, set aside the acquittal, and directed a new trial, which at this date has not taken place.

The appellants then launched proceedings by notice of motion in the Alberta Court of Queen's Bench, dated March 22, 1986. They sought an order setting aside the authorizations under which the interceptions referred to above had been made. Various grounds were alleged and the application clearly sought what has become known as a Wilson review of the authorization: see Wilson v. The Queen, 1983 CanLII 35 (SCC), [1983] 2 S.C.R. 594. The motion was heard by O'Byrne J. in Chambers. He heard viva voce evidence and extensive argument and dismissed the motion. An appeal was taken to the Alberta Court of Appeal and, on July 30, 1986, was dismissed on the basis that the Court of Appeal had no jurisdiction to entertain the appeal. Laycraft C.J.A., speaking for the Court of Appeal, said:

We have not considered the appeals on their merits because we consider ourselves bound to follow our decision in R. v. Cass (May 16, 1985 unreported (Alta. C.A.)) that there is no right of appeal from the order of the learned Chambers Judge.

The appeal to this Court is by leave granted November 6, 1986.

The appellants raised three grounds of appeal in this Court. It was argued that the Court of Appeal was in error, in holding that there was no right of appeal from the refusal of the application to review the authorizations, because it would be supportable as an appeal in a civil matter. It was argued, as well, that this Court's decision in Wilson v. The Queen, supra, should be reconsidered. The appellants associated themselves also with the general argument raised in R. v. Meltzer, to the effect that the Charter required that an appeal be available on a denial of a Charter remedy. These grounds were raised in the case of R. v. Meltzer and disposed of. For the reasons there given, I would conclude that these arguments are without merit.

It was further contended that an authorization may not be given for an interception after the target has been arrested, because to do so would permit the violation of the accused's Charter rights against self-incrimination: to retain counsel, to trial by an independent and impartial tribunal, and to privacy. What the appellants seek in this interlocutory appeal is an in futuro ruling against the admissibility of evidence to be tendered at trial. The issue raised is one to be dealt with at trial, and again for the reasons expressed in R. v. Meltzer this ground must fail.

I would therefore dismiss the appeal.

Appeal dismissed.

Solicitor for the appellants Paul F. Heikel, Janet E. Heikel and Jack D. Heikel: Howard Rubin, Vancouver.

Solicitor for the appellant Robert David Heikel: Robert Sachs, Edmonton.

Solicitor for the appellant David Phillip Richard: Murray Stone, Edmonton.

Solicitor for the appellant Lawrence Alfred Heikel: Richard R. Gariepy, Edmonton.

Solicitor for the appellant Norman Paul Brazel: Paul R. Solotki, Edmonton.

Solicitor for the respondent Her Majesty The Queen in right of Canada: Frank Iacobucci, Ottawa.

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

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