R. v. Zito, [1990] 2 S.C.R. 1520

The Attorney General of Canada Appellant

v.

Vincent Zito Respondent

indexed as: r. v. zito

File No.: 21078.

1989: October 3; 1990: November 22.

Present: Dickson C.J.* and Lamer C.J.** and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and McLachlin JJ.

on appeal from the court of appeal for quebec

Criminal law -- Interception of private communications -- Access to sealed packet -- Whether accused entitled to inspect affidavit filed in support of wiretap authorization -- Criminal Code, R.S.C. 1970, c. C‑34, s. 178.14 ‑‑ Canadian Charter of Rights and Freedoms, ss. 7, 8.

Respondent was charged with trafficking in narcotics. The evidence against him consisted partly of intercepted private communications. During the voir dire to determine the admissibility of the wiretap evidence, the trial judge denied respondent's motion seeking to examine the affidavits filed in support of the wiretap authorizations. He found the wiretap evidence to be admissible and convicted respondent. The Court of Appeal found that respondent should have been granted access to the sealed packet, on the ground that an accused should be granted access on request, and ordered a new trial.

Held: The appeal should be dismissed.

Per Dickson C.J. and Lamer C.J. and La Forest, Sopinka and Gonthier JJ.: For the reasons given in Dersch, the Court of Appeal was correct in allowing the respondent's appeal and ordering a new trial.

Per L'Heureux‑Dubé and McLachlin JJ.: The question of whether the packet should be opened is a matter within the discretion of the judge hearing the application, who must balance the interests of the accused in the protection of privacy and a fair trial, including the right to make full answer and defence, with the public interest in the administration of justice. Given the importance of the accused's right to make full answer and defence, the balance will generally fall in favour of opening the packet, subject to editing and special concerns for the administration of justice which may arise in particular cases. Here there should be a new trial and access to the packet will be a matter within the discretion of the judge hearing the application for access. Absent special concerns for the administration of justice, it may be predicted that the balance between the interests of respondent and the public interest in the administration of justice will result in the granting of access.

Cases Cited

By Sopinka J.

Applied: Dersch v. Canada (Attorney General), [1990] 3 S.C.R. 000; referred to: R. v. Rowbotham (1988), 41 C.C.C. (3d) 1; R. v. Garofoli, [1990] 3 S.C.R. 000; R. v. Lachance, [1990] 3 S.C.R. 000.

By McLachlin J.

Referred to: R. v. Garofoli, [1990] 3 S.C.R. 000; Dersch v. Canada (Attorney General), [1990] 3 S.C.R. 000; R. v. Lachance, [1990] 3 S.C.R. 000.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C‑34, Part IV.1 [ad. 1973‑74, c. 50, s. 2], s. 613(1)(b)(iii).

APPEAL from a judgment of the Quebec Court of Appeal, [1988] R.J.Q. 1539, 17 Q.A.C. 35, 42 C.C.C. (3d) 565, 63 C.R. (3d) 295, allowing the respondent's appeal from his conviction on a charge of trafficking in narcotics and ordering a new trial. Appeal dismissed.

Jacques Malb{oe}uf, Q.C., for the appellant.

Francis Brabant, for the respondent.

//Sopinka J.//

The judgment of Dickson C.J. and Lamer C.J. and La Forest, Sopinka and Gonthier JJ. was delivered by

SOPINKA J. -- The respondent was convicted of trafficking in narcotics by a judge of the Court of Sessions of the Peace. His appeal to the Quebec Court of Appeal was allowed, and a new trial was ordered. The Crown's appeal to this Court was heard as part of a series of wiretap cases together with Dersch v. Canada (Attorney General), [1990] 3 S.C.R. 000; R. v. Garofoli, [1990] 3 S.C.R. 000; and R. v. Lachance, [1990] 3 S.C.R. 000. The issue in this case is substantially the same as the issue raised in Dersch: whether the accused is entitled to access to the sealed packet containing the information which forms the basis for a wiretap authorization.

The evidence against the respondent mainly consisted of intercepted private communications and the testimony of certain police officers who saw the respondent meet with one Picard minutes before Picard removed bags containing approximately 10 kilograms of cocaine from a locker in a shopping mall.

During the voir dire to determine the admissibility of the wiretaps, the trial judge denied the respondent's motion seeking to examine the affidavits which were filed in support of the wiretap authorizations. The Court of Appeal per McCarthy J.A. adopted the reasoning of the Ontario Court of Appeal in R. v. Rowbotham (1988), 41 C.C.C. (3d) 1, to the effect that an accused person should be granted access to the sealed packet upon request. McCarthy J.A. declined to invoke s. 613(1)(b)(iii) of the Criminal Code, R.S.C. 1970, c. C-34, because he was not satisfied that the verdict would necessarily have been the same in the absence of the wiretap evidence. The Court of Appeal did not itself open the sealed packet because the respondent made no such request. It therefore allowed the appeal and ordered a new trial: [1988] R.J.Q. 1539, 17 Q.A.C. 35, 42 C.C.C. (3d) 565, 63 C.R. (3d) 295.

For the reasons I express in Dersch and the reasons of McCarthy J.A., I conclude that the Court of Appeal was correct in its judgment. I would dismiss the appeal, and affirm order of the Court of Appeal directing a new trial.

//McLachlin J.//

The reasons of L'Heureux-Dubé and McLachlin JJ. were delivered by

MCLACHLIN J. -- This is another in a series of wiretap cases which also includes R. v. Garofoli, [1990] 3 S.C.R. 000; Dersch v. Canada (Attorney General), [1990] 3 S.C.R. 000; and R. v. Lachance, [1990] 3 S.C.R. 000. I have read the reasons of Justice Sopinka in each of these appeals, and I explained in my reasons in Garofoli how my approach to the interpretation of Part IV.1 of the Criminal Code, R.S.C. 1970, c. C-34, differs from his. Consistent with the position I adopt in Garofoli, I must make a brief comment on the issue raised by this case.

The issue in this case is whether an accused is entitled to access to the sealed packet, the contents of which form the basis of an authorization to wiretap private communications. As I explained in my reasons in Garofoli, the question of whether or not the packet should be opened is within the discretion of the judge hearing the application. The fundamental considerations are the interests of the accused in protection of privacy and a fair trial, including the right to make a full answer and defence, on the one hand; and the public interest in the administration of justice on the other. The judge in exercising his or her discretion must balance these considerations. Given the importance of the accused's right to make a full answer and defence, the balance will generally fall in favour of opening the packet, subject to editing and special concerns for the administration of justice which may arise in particular cases.

In this case, the trial judge denied the respondent's motion for access to the packet. The Court of Appeal, however, held that an accused person should be granted access to the sealed packet upon request. It therefore allowed the appeal and ordered a new trial; it did not itself open the sealed packet because it had not been requested to do so. I agree that there should be a new trial. I add, however, that for the new trial access to the packet will be a matter within the discretion of the judge hearing the application for access. Nevertheless, absent special concerns for the administration of justice, it may be predicted that the balance between the interests of the respondent and the public interest in the administration of justice will result in the granting of access.

I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: John C. Tait, Montréal.

Solicitors for the respondent: Leithman, Goldenberg & Girouard, Montréal.

• Chief Justice at the time of hearing.

** Chief Justice at the time of judgment.