Court of Appeal for Ontario R. v. Playford Date: 19871207 Docket: 718/85

The judgment of the court was delivered by

GOODMAN J.A.: — This is an application by the appellant for leave to appeal and

if granted to appeal from his conviction on January 9, 1985, of first degree murder

of one David Roy Walz. He was sentenced to life imprisonment. The murder was

alleged to have occurred in or about the months of June and July, 1977.

Theory of the Crown

It was the theory of the Crown that the appellant killed Walz in June or July, 1977,

after luring him to Sauble Beach with the promise of a joint venture to retrieve

buried drugs and to sell them in western Canada. It was alleged that after Walz

had dug a hole in search of the secreted drugs he was shot to death by the

appellant and buried in the hole.

The alleged motive for the crime was that Walz and the appellant had been

charged with credit card offences in which they were jointly involved. Walz made

an inculpatory statement to the police which implicated the appellant and it was

anticipated that he would give evidence on behalf of the prosecution against the

appellant. In fact he did not appear in court on the date set for the appellant's trial

on the credit card charge in July, 1977, and the charge was withdrawn. It was the

theory of the Crown that the appellant killed Walz to prevent him from testifying.

The body of Walz has never been located. Evidence was led by the Crown

through members of his family and friends that he had disappeared and had not

been seen since the summer of 1977. There was some evidence that he planned

to go to western Canada.

The most cogent evidence relied on by the Crown to prove its case was evidence

given by one Brian Stevenson, a police informant, that the appellant in 1977

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admitted the killing to him and that the appellant had further admitted the killing to

him in February and March, 1985, in conversations recorded on tape pursuant to

a consent given by Stevenson and a judicial authorization to intercept private

communications given in February, 1985. In addition, the appellant was alleged to

have made an incriminatory statement to Ontario Provincial Police (O.P.P.)

Detective Inspector McCormick in the form of an offer to plead guilty to second

degree murder in response to that officer's request that the appellant disclose

where Walz was buried.

Facts preceding the appellant's arrest

In January, 1984, a detective from the Waterloo Regional Police Force

approached Stevenson to act as an informant in drug investigations. After several

meetings they were unable to agree on the amount of compensation to be paid to

him for such assistance. He did, however, tell the officer that the appellant had

told him about killing a man in 1976 or 1977 to "beat" a credit card charge that the

appellant said would have put him in jail for five years. He agreed to co-operate

with the police to obtain proof against the appellant and consented to the

interception by the O.P.P. of his private communications by electronic, acoustic,

mechanical or other devices. He gave his written consent by document dated

February 20, 1984. It was understood between them that the "bug" would be

planted in his home in Cambridge where he was living with his brother and the

appellant, and in a cottage owned by the appellant's parents in the Sauble Beach

area where it was anticipated he would go with the appellant in an effort to obtain

information with respect to the location of the body of Walz. He understood that

the police anticipated using the intercepted communications in connection with

the Walz murder.

On February 23, 1984, on application by the Attorney-General for Ontario, an

authorization was obtained pursuant to the provisions of s. 178.12 and s. 178.13

of the Criminal Code of Canada from the Honourable Judge F. Costello to

intercept the private communications of the appellant and Stevenson at the

appellant's and Stevenson's home in Cambridge, at the cottage of the appellant's

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parents, in a 1978 Cordoba automobile owned by the appellant, and a 1984 Buick

automobile being a rental automobile operated by Stevenson. The authorization

also contained a "basket" clause with respect to other persons and places.

At the suggestion of Stevenson it was agreed between him and McCormick, who

had taken charge of the investigation, that Stevenson arrange with the appellant

to participate in a concocted sale of drugs to undercover officers. The nature of

the scheme would be that Stevenson and the appellant would not plan to in fact

sell drugs to the undercover officers but Stevenson would lead the appellant to

believe that they were planning not in fact to sell drugs to these men, but to kill

them at the place agreed upon for the transaction, and steal the money which

was to have been paid for the drugs. It was hoped that he could induce the

appellant to discuss with him his previous experience in killing Walz during a

spurious drug deal.

Pursuant to his consent, a listening device was placed in Stevenson's residence

on February 22, 1984. Conversations were intercepted pursuant to this consent

and tendered as evidence at trial.

O.P.P. Corporal Smith was the officer who prepared the affidavit in support of the

application for the judicial authorization. By this time he had become aware of all

the circumstances including the fact that one Bevan had become involved as a

third party in the concocted drug purchase scheme. After obtaining the

authorization the police picked the lock of the appellant's parents' cottage and

surreptitiously entered the cottage and installed listening devices. Electricity was

taken from Bell Canada lines in order to energize the devices. The power used,

according to the evidence, had a value of $.0011 per month. The device was

removed on March 6, 1984.

The intercepted communications contained a number of statements by the

appellant which could be taken by the fact finders as an admission that the

appellant had killed a person by shooting him, and, considered along with other

evidence given at the trial, that that person was Walz.

Facts after the appellant's arrest

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On March 6, 1984, at approximately 7:30 p.m. the appellant was arrested at

Sauble Beach after a short pursuit by the police. Constable Olmstead of the

O.P.P. told him he was under arrest for first degree murder which had occurred in

1977 and that he had the right to retain and instruct counsel without delay.

Playford was asked if he understood this and he replied "yes". Olmstead then

gave the usual caution advising the appellant of his right to remain silent, asking

him whether he wished to say anything in answer to the charge and telling him

that he was not obliged to say anything but whatever he did say might be given in

evidence against him. At the time he was in Constable Olmstead's police cruiser

alone with him.

Several minutes later another police cruiser arrived at the scene of the arrest. The

appellant was placed in the other cruiser and Constable Olmstead, along with

another constable and the appellant started towards Wiarton. En route, as a result

of a radio message received, they proceeded to the rear of a motel where

Constable Olmstead spoke to Detective Inspector McCormick. McCormick had

previously at the scene of the arrest asked Constable Olmstead if he had read the

appellant his rights and cautioned him and was told that he had. The appellant

was taken to the O.P.P. detachment station at Wiarton. Constable Olmstead

asked the appellant if he wanted to make a telephone call. He said yes. He was

given a telephone in the general office. He was told by Constable Olmstead that

there was not a proper office for him to use to make the call. He telephoned a

friend. It was his evidence that he did not call his lawyer because it was Sunday

night and he did not know his lawyer's residence telephone number. The

telephone call was made in the presence of Constable Olmstead and O.P.P.

Constable Wescott both of whom overheard the conversation of the appellant.

Constable Wescott made notes of the conversation.

At approximately 9:30 a.m. on the following morning the appellant requested and

was granted the use of a telephone for the express purpose of calling his lawyer.

He called his lawyer's office. The lawyer was not in but his secretary told him not

to speak to anyone until he had an opportunity to speak to his lawyer. He agreed

to remain silent. This telephone call was made from the breathalyzer office, the

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door to which led to the general office and was left open. O.P.P. Constable

Smethurst was seated at a desk in the general office area from where he could

watch and hear the appellant. He overheard the appellant's conversation and

made notes. He did not know to whom the appellant was speaking but he knew

that he had made a request to telephone his lawyer. The appellant did not make a

specific request for privacy and acknowledged that if he had wanted more privacy

he could have turned from the doorway and spoken in a lower voice. At one point

he asked Officer Smethurst for the telephone number of the Owen Sound jail to

which he was to be taken.

After the telephone call was made he was returned to his cell located just off the

general office. Within a matter of several minutes Detective Inspector McCormick

entered the cell area and initiated a conversation with the appellant. According to

McCormick he said to the appellant: "Why don't you do something for the family?

Show us where the body is so that it can have a proper funeral and burial." He

said that the appellant replied: "For second degree murder charge." McCormick

stated he then said: "No way. Maybe we won't do you for habitual."

The appellant gave evidence indicating a somewhat different version of the

conversation which was more favourable to him. The particulars of his version are

not important for the appeal. The jury had to decide which version they accepted,

if any, and there is no way of knowing their finding in this regard. For the

purposes of the appeal, since the jury convicted, it must be taken that they took

the version most unfavourable to the appellant and that was McCormick's version.

It was the evidence of McCormick that he had not expected to obtain a statement

but that on coming into the detachment office he noticed the appellant in the cell

and on the spur of the moment went into the cell area and asked the question. He

had not been advised that the appellant had requested and had been allowed to

call a lawyer nor did he inquire of the appellant whether he had retained or

instructed counsel or desired to make a statement.

Issues on voir dire

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At the outset of the trial on consent of counsel a voir dire was held prior to the

arraignment of the appellant to determine the following matters:

(1) Was the utterance allegedly made by the appellant to Detective

Inspector McCormick admissible in evidence?

(2) Was the consent given and signed by Stevenson on February 20, 1984,

a valid consent to intercept communications?

(3) Was the authorization given by the Honourable Judge Costello on

February 23, 1984, improperly obtained and accordingly the evidence

obtained pursuant thereto inadmissible at trial?

There were other matters dealt with on the voir dire which are not relevant to this

appeal.

The learned trial judge answered the first question in the affirmative. He answered

the second question in the affirmative. He answered the third question in the

negative.

Grounds of appeal

The grounds of appeal relied upon by the appellant are as follows:

(1) The trial judge erred in allowing McCormick to state in evidence the

utterance of the appellant.

(2) The trial judge erred in finding that there was a valid consent to intercept

private communications with Stevenson at the Sauble Beach cottage and in

failing to find that a valid authorization was required to satisfy the

requirements of the admissibility of evidence obtained through the

intercepted private communications at the cottage. It was further submitted

that in reaching these conclusions the trial judge erred in finding that s.

178.11(2)(a) of the Criminal Code was constitutionally valid and did not

offend the provisions of s. 8 of the Canadian Charter of Rights and

Freedoms.

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(3) The trial judge erred in not reviewing and permitting appellant's counsel

to review the contents of the sealed packet before ruling that the

authorization given by the Honourable Judge F. Costello was valid.

(4) The trial judge erred in instructing the jury to compare the appellant's

alleged motive for murdering Walz (imprisonment if Walz testified against

him), with the likelihood of Walz receiving a term of imprisonment if he

appeared in court to answer his own charges.

(5) The learned trial judge erred in failing to caution the jury that they should

proceed with great care having regard to the absence of evidence with

respect to the existence or disposition of the body of the alleged victim

because cases have occurred where a person has been executed for

murdering another who has afterwards been found alive.

I propose to deal with these five grounds of appeal seriatim.

I Admissibility of the conversation between appellant and McCormick

The appellant sought to have his statement made to McCormick excluded under

s. 24(2) of the Charter on the ground that it was obtained in a manner which

constituted an infringement of his rights under s. 10(b) of the Charter. Section

10(b) reads as follows:

10. Everyone has the right on arrest or detention (b) to retain and instruct counsel without delay and to be informed of that right ...

There is no suggestion that the right to be informed of his right to retain and

instruct counsel without delay has been infringed. The appellant was informed of

that right shortly after his arrest and it is clear he understood that right.

The appellant claims, however, that there was a violation of his substantive right

to retain and instruct counsel without delay. It was his submission that s. 10(b)

imposed two duties on the police in addition to the duty to inform. Those duties

are firstly, to provide the detainee with a reasonable opportunity to exercise the

right to retain and instruct counsel without delay, and secondly to cease

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questioning or otherwise attempting to elicit evidence from the detainee until he

has had a reasonable opportunity to retain and instruct counsel. Those duties are

now beyond question. Since the hearing of this appeal the Supreme Court of

Canada rendered judgment on June 25, 1987 in R. v. Manninen (1987), 34

C.C.C. (3d) 385, 41 R L. R. (4th) 301, 58 C.R. (3d) 97, and expressly stated that

s. 10(b) imposes those two duties on the police.

With respect to the first duty Lamer J. said in delivering the judgment of the court

at p. 391 C.C.C., p. 103 C.R.: "The detainee is in the control of the police and he

cannot exercise his right to counsel unless the police provide him with a

reasonable opportunity to do so." With respect to the second duty he said at p.

392 C.C.C., p. 104 C.R.:

The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights.

It was a further submission of the appellant that the right to retain and instruct

counsel cannot be waived by silence or by acquiescence by replying to a question

asked. He took the position that a detainee can be found to have waived his

constitutional right only if he expressly waived such right.

Finally, the appellant submitted that the right to privacy is inherent in the right to

retain and instruct counsel. It was his submission that this right had been

infringed.

The trial judge distinguished the case at bar from Manninen on the facts. He said

that, unlike the accused in Manninen, the appellant was given access to a

telephone immediately upon arrival at the Wiarton detachment office on the day of

his arrest and again on the following morning on his request to use a telephone to

call his lawyer. At no time did he say, as did the accused in Manninen, that he

wished to remain silent until he had seen a lawyer. In addition, he was a man well

versed in his rights who knew and understood the charge against him and who

had been advised by his lawyer's secretary moments before his conversation with

McCormick not to say anything to the police. The trial judge concluded that in

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those circumstances the question asked by McCormick did not infringe upon the

appellant's rights under s. 10(b).

The trial judge also dealt with the matter of privacy. In so doing he disregarded

the circumstances surrounding the appellant's first telephone call on the ground it

had nothing to do with retaining and instructing counsel. With respect to the

second telephone call he pointed out that the appellant did not complain that the

door was open in the office from which he telephoned nor did he attempt to obtain

privacy by moving further away and lowering his voice. He concluded that the

appellant "could easily have kept his words out of hearing range of the officer". He

then ruled that the appellant's utterance was admissible.

In my opinion, the right to retain and instruct counsel without delay carries with it

the right to do so in privacy. It would defy common sense to expect an accused

person to instruct counsel properly when his instructions can be overheard by

other persons and in particular by police officers. Such lack of privacy might even

seriously prejudice his ability to retain counsel. Retention of counsel usually

requires some explanation by the accused of the circumstances which have led to

his arrest. This matter was dealt with by the Appellate Division of the Nova Scotia

Supreme Court in R. v. LePage (1986), 32 C.C.C. (3d) 171, 54 C.R. (3d) 371, 73

N.S.R. (2d) 322. I agree with the view expressed by Jones IA. in delivering

judgment for the court where he said at pp. 176-7 C.C.C., pp. 376-7 C.R.:

In Jumaga v. The Queen (1976), 29 C.C.C. (2d) 269, 68 D.L.R. (3d) 639, [1977] 1 S.C.R. 486, in a split decision, the Supreme Court of Canada held that the accused had not been deprived of his right to retain and instruct counsel under the Canadian Bill of Rights where he was not permitted to speak to counsel on the telephone in private. Section 2(c)(ii) of the Bill of Rights provided that,

"2. ... no law of Canada shall be construed or applied so as to (c) deprive a person who has been arrested or detained

(ii) of the right to retain and instruct counsel without delay," While that section was framed as an interpretative provision, it is now clear that a person arrested or detained has an absolute right to retain and instruct counsel without delay subject to the provisions of s. 1 of the Charter. The purpose is to protect the rights of an accused. In order to fulfil that purpose under the Charter, with respect, the reasoning of the minority in

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Jumaga should be applied to s. 10(b). Chief Justice Laskin, in delivering the judgment of the minority, reviewed the authorities including the judgment of this court in R. v. Doherty (1974), 16 C.C.C. (2d) 494, 25 C.R.N.S. 289, 8 N.S.R. (2d) 172, and concluded [p. 275]:

"Certainly, as was said in Balkan [13 C.C.C. (2d) 482, 25 C.R.N.S. 109, [1973] 6 W.W.R. 617], in Bond [14 C.C.C. (2d) 497, 24 C.R.N.S. 273, 6 N.S.R. (2d) 512], and in Doherty, all circumstances must be considered in determining how far privacy can go; but the fact that it may have to be limited in some cases does not call for an unqualified denial of any privacy in all cases. I do not think that it can reasonably be made a condition that an accused be shown to have asked for it before consideration is given to providing it. Once an accused has requested that he be permitted to consult counsel, that should carry with it, to the knowledge of the police, a right to have the consultation in private, so far as circumstances permit. The right to counsel is diluted if it can only be secured by adding request to request. I would not put the police in an adversary position on this question; they are better placed than the ordinary person (who has been detained or arrested and is in police custody) to recognize what the right to counsel imports, and they should be alert to protect that right as an important element in the administration of justice through law, for which they are as much accountable as any others involved in the judicial process."

Even to obtain the minimal advice by means of a telephone a person detained or arrested must be free to discuss the circumstances of his detention with counsel. If he cannot do so for fear of making admissions in the presence of the police then, obviously, his right to instruct counsel has been limited. In such circumstances the right under the Charter has been violated. In my view, the right to privacy is inherent in the right to retain and instruct counsel under s. 10(b) of the Charter.

In R. v. Rudolph, a case tried in the court of Queen's Bench of Alberta

(unreported, reasons released October 10, 1986 [since reported 32 C.C.C. (3d)

179, 73 A.R. 281, 44 M.V.R. 14]), the Honourable Mr. Justice J.B. Dea said [at p.

182]:

Without privacy, a person arrested or detained cannot exercise his right to retain and instruct counsel. On the other hand, the amount of privacy required need not be great. At minimum, a person must be able to speak to and listen to a lawyer without the conversation being overheard. Without that minimum, the right to retain and instruct counsel without delay is infringed.

In R. v. Ginther (unreported, heard December 3, 1986, Sask. C. A. [since reported

54 Sask. R. 303, 27 C.R.R. 242]), the following paragraph appears in the

endorsement on the record [at p. 304]:

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In cross-examination the investigating officer conceded that the appellant was not accorded privacy when instructing his counsel and obtaining advice. The officer remained in the room with him and took the position that he did not leave because he was not requested to do so. The officer knew that the appellant was discussing the matter with his counsel. Such conduct, in the circumstances of this case, is a violation of the appellant's right under s. 10(b) of the Charter: See R. v. Panchyshyn (1985), 38 Sask. R. 239; 16 C.R.R. 75.

R. v. Rees (unreported, reasons delivered December 31, 1986 [since reported 27

C.R.R. 226]), was a case tried in the Supreme Court of British Columbia, which

dealt with the issue whether the right to retain and instruct counsel carried with it

the essential element of privacy, even when such privacy is not expressly

requested. In dealing with this issue the Honourable Mr. Justice Wood said [at p.

233]:

I do not believe that the framers of the Charter intended to assert the right of every person in this country to anything less than proper legal advice and effective legal assistance when they drafted s. 10(b). In the absence of any clear language to the contrary, I conclude that the quality of legal advice and assistance to which we are all entitled under s. 10(b) of the Charter ought not to vary from individual to individual depending on which accused persons are sophisticated enough to ask for privacy when consulting with counsel. I adopt what was said by Laskin C.J.C., in dissent, in Jumaga at pp. 494-95 S.C.R. of the report ...

This court has recently considered the right to privacy in retaining and instructing

counsel in R. v. McKane (1987), 35 C.C.C. (3d) 481, 58 C.R. (3d) 130, 49 M.V.R.

1. In that case the accused was charged with impaired driving. He was informed

of his right to counsel and transported to the police station. At the station he told

the police the name of his lawyer and that he was going to telephone him. The

police were very co-operative in assisting the accused to contact his lawyer. An

officer was seated behind a desk when the lawyer telephoned the accused. The

officer passed the telephone to the accused who was seated directly across the

desk from him. During the telephone conversation the accused asked the officer if

he could "have some room". The officer then moved about eight feet away by a

doorway which was about ten feet from the desk. He heard the accused explain

to the lawyer that he was arrested for impaired driving but did not remember

anything else about the conversation. The police demanded a breath sample.

After a number of abortive attempts the accused gave a proper sample. At trial,

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the trial judge refused to admit the results of the breathalyzer test as evidence but

convicted the accused of impaired driving on the evidence of the police with

respect to the physical condition of the accused, some of which evidence resulted

from a test performed by the accused at the request of the police after the

telephone call.

The accused appealed. On those facts the summary conviction appeal court

judge held that the accused had asked for privacy which was not granted to him

and that the rights of the accused under s. 10(b) had been violated, and ruled that

none of the evidence obtained following the call was admissible. The Crown

thereupon appealed to this court. In dealing with the issues in the appeal, Martin

J.A., in delivering judgment for the court, said at p. 486 C.C.C., p. 134 C.R., p. 7

M.V.R.:

Crown counsel conceded that the respondent's rights under s. 10(b) of the Charter had been contravened. I think she was correct in making that concession. I would, however, make this additional observation. The learned summary conviction appeal court judge held that the respondent had, in substance, requested an opportunity to speak to his lawyer in private and, on the evidence, he was entitled to make that finding. I do not wish, however, to be taken as holding that a request by an accused for privacy is essential. In my view, the right to privacy is inherent in the right to retain and instruct counsel secured by s. 10(b) of the Charter: see R. v. LePage (1986), 32 C.C.C. (3d) 171, 54 C.R. (3d) 371, 44 M.V.R. 167 (N.S.S.C., A.D.). I hasten to add that I leave aside until it is necessary to answer the question of the extent to which, if any, a limitation on the right of an accused to consult in private with his counsel may be justified by the dangerousness of the offender and the nature of the facilities available, e.g., an officer keeping the accused in view while remaining out of hearing. This situation did not arise in this case.

(Emphasis added.)

The reasons of the summary conviction appeal court judge did not indicate

whether he was asked to sustain the conviction on the basis of evidence which

existed prior to the Charter breach, although there was such evidence for

consideration by the judge, or whether he considered the question and found, on

the basis of that evidence that the charge was not proved with the requisite

degree of certainty. The court refused leave to appeal on the ground that an

appeal lay only with leave upon a question of law and as the Crown failed to

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satisfy the court that the summary conviction appeal court committed any error of

law, leave to appeal was refused.

It seems clear that, so far as circumstances permit, an accused should not be

questioned by police until he has had the right to retain and instruct counsel and

that right is one that is to be afforded to him without delay in so far as

circumstances permit. Privacy is a matter which is inherent in that right. In my

opinion, proof that an accused could instruct and consult counsel in private only

by whispering or by some other unusual device does not meet the test of privacy.

An accused who believes that his conversation will be overheard by the police will

of course be substantially prejudiced in making use of his right to retain and

instruct counsel. That does not mean, of course, that every accused who has

such belief no matter how unreasonable, can assert that his right to retain and

instruct counsel has been infringed. Where the circumstances are such that an

accused would reasonably believe that his conversation to retain or instruct

counsel could be overheard by police, it cannot be said that his right to privacy

has not been infringed unless it can be shown that he was in fact able to retain

and instruct counsel privately.

It is my view that the learned trial judge, in considering the matter of privacy erred

when he in effect disregarded the facts surrounding the appellant's first telephone

call. He said: "No Charter complaint, in any event, is justified with respect to the

first call, because it had nothing to do with retaining and instructing counsel." That

statement is not accurate. The first telephone call was made as a result of a

police officer asking the appellant whether he wished to make a telephone call.

This occurred a short time after his arrest and almost immediately after his arrival

at the O.P.P. Wiarton detachment office. The availability and the use of a

telephone in private by the appellant at this time would comply with the

requirements of s. 10(b), that he have the right to retain and instruct counsel

without delay. The police did not know that the accused felt that he would be

unable to locate his counsel on that night and it was their duty to enable him to

retain and instruct without delay in so far as circumstances permitted. It is

apparent from the evidence of Constable Wescott that he was of the opinion that

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the physical characteristics of the detachment office were such that he could not

give privacy to the appellant during his telephone call. The building consisted of a

general office with four desks on one of which was a telephone that was used by

the accused for his first telephone call. There were four small adjoining offices

with doors leading in to the central office. Wescott stated that it would not have

been safe to allow the appellant into any of these offices which had a telephone in

it because of the equipment kept in the offices. Other evidence indicated it would

have been unsafe to leave the appellant in any of those offices with the door

closed.

At the time the appellant made his first telephone call Wescott was only three feet

away from the appellant. He overheard every-thing that was said by the appellant

and made notes thereof. According to Wescott the appellant made no request for

privacy prior to the telephone call but after the telephone call commented upon

the fact that Wescott was listening and "that I [Wescott] was pretty interested in

everything he said". It was the evidence of the appellant that the police indicated

to him which telephone he was to use and that he sat down and was talking to the

operator to make the call when he looked over the desk and saw the officer sitting

there with his note pad open at which time he said, "Can I have some privacy?"

The officer was said to have replied: "I can't leave you." He further stated that

when he requested and was given the opportunity to call his lawyer on the

following morning "... I never bothered to ask him for privacy again because the

other officer, the night before, told me I couldn't have it".

The trial judge did not make a finding on the voir dire as to which version of the

evidence he believed with respect to the first telephone call. It is important to

consider all of the evidence relating to the appellant's conversations with the

police and the circumstances surrounding the making of the telephone calls in

order to determine whether the appellant was given the right to privacy in

retaining and instructing counsel, whether it was reasonable in the circumstances

for him not to have requested privacy on the occasion of the second telephone

call, if indeed such a request is relevant, and whether it was reasonable for him to

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believe that his call could not be made in private even if in fact he could have by

whispering or turning his back.

It is of course, beyond dispute that the two telephone calls were not made in

private. Police constables were in full view of and close to the appellant and

overheard and made notes of what he said during the telephone conversations. If

the evidence of the appellant is believed he was under the impression at the time

of the conversations that the police would not permit him to have a private

telephone conversation. The trial judge found, however, that the appellant "could

easily have kept his words out of hearing range of the officer". The officer was of

course only 15 ft. away and in full view of the appellant. That finding was at least

in part based on the answers given by the appellant on the voir dire which the trial

judge referred to in his ruling on the voir dire as follows:

In cross-examination Mr. Playford agreed with the Crown that had his lawyer been reached he could have moved away or turned his back to the officer and possibly carried on a conversation in a softer voice that would not be heard by the officer.

The cross-examination referred to consisted of a question and an answer given

by the appellant while testifying on the voir dire as follows:

Q. So, presumably, if you had wanted to, you could have turned your body away and spoken softly enough that the constable out the door, out there in the general office who must keep an eye on you could not hear what you were saying, is that not so? A. Possible.

In my opinion, the fact that an accused concedes in hindsight approximately nine

months later that it was possible that he could have had a private conversation

does not meet the test of privacy required under s. 10(b). It does not prove that he

could have had privacy nor that he did not reasonably believe that he was not

being given the right to privacy. Although it was argued that the police did the best

that they could to protect the rights of the appellant having regard to the physical

limitations of the Wiarton detachment office it is my opinion that, if the physical

layout was such that it was not possible for the appellant to have a private

telephone conversation while preserving police security, no questioning of the

appellant should have taken place until he had been taken to a place where he

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could and did have the opportunity to have privacy in retaining and instructing

counsel. On the other hand if it was possible for the appellant to have privacy for

his telephone call at the detachment office, as the trial judge found, the police

should have afforded such privacy to him. It is clear that police officers remained

in locations during each of the telephone conversations where they could

overhear and make notes of the appellant's utterance when they could have at

least distanced themselves from him in an endeavour to provide privacy. I

conclude that there was an infringement of the right of the appellant to retain and

instruct counsel by reason of the failure to give him privacy.

Assuming that the appellant's right to retain and instruct counsel has been

infringed, what effect does that have upon the admissibility of any statement

made by the appellant to McCormick in answer to his question and request? In

Clarkson v. The Queen (1986), 25 C.C.C. (3d) 207, 26 D.L.R. (4th) 493, [1986] 1

S.C.R. 383, Wilson J. said in delivering the majority judgment of the court at pp.

217-8 C.C.C., p. 394 S.C.R.:

The question whether the appellant's right to counsel has been violated may well provide an acceptable alternative approach to the problem posed by the police extraction of an intoxicated confession. This right, as entrenched in s. 10(b) of the Canadian Charter of Rights and Freedoms is clearly aimed at fostering the principles of adjudicative fairness. As Lamer J. indicated in R. v. Therens (1985), 18 C.C.C. (3d) 481 at p. 490, 18 D.L.R. (4th) 655 at p. 665, [1985] 1 S.C.R. 613 at p. 624,

"where a detainee is required to provide evidence which may be incriminating ... s. 10(b) also imposes a duty not to call upon the detainee to provide that evidence without first informing him of his s. 10(b) rights and providing him with a reasonable opportunity and time to retain and instruct counsel." This constitutional provision is clearly unconcerned with the probative value of any evidence obtained by the police but rather, in the words of Le Dain J. in Therens, supra, pp. 503-4 C.C.C., p. 678 D.L.R., pp. 641-2 S.C.R., its aim is "to ensure that in certain situations a person is made aware of the right to counsel" where he or she is detained by the police in a situation which may give rise to a "significant legal consequence".

In the case at bar the question was asked by McCormick less than 15 hours after

the arrest of the appellant including his overnight hours of sleep in the cell. There

is no evidence to suggest that McCormick was aware that the appellant had been

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given an opportunity to retain or instruct counsel. He did not inquire of the

appellant whether such was the case. The arrest had taken place on a Sunday

and it might reasonably be anticipated that there would be some difficulty in the

appellant being able to promptly retain and instruct counsel. The charge against

the appellant was the most serious one in the Criminal Code. Unlike some

investigations where time requirements in the Code make it impractical for police

to allow an accused more than a short time to retain and instruct counsel, for

example - in proceedings to obtain a breath sample under s. 235(1) of the Code

when an offence under ss. 234 or 236 is suspected, there was no urgent situation

confronting the police in the present case. The alleged killing had taken place

about seven years prior to the appellant's arrest. There was no suggestion of any

imminent destruction of physical evidence nor any pressing need to take physical

samples from the body of the appellant. The police had already obtained the

relevant admissions from the appellant sufficient for his arrest and for his

subsequent conviction, assuming they were admissible in evidence and believed

by the jury. In my opinion, even aside from any question of privacy, the appellant

had not been given a reasonable opportunity and time to retain and instruct

counsel before being required to provide evidence which might be incriminating. It

is true of course that in R. v. Therens (1985), 18 C.C.C. (3d) 481, 18 D.L.R. (4th)

655, [1985] 1 S.C.R. 613, the court was dealing with a demand for a breath

sample. In my opinion the same reasoning applies to a request for a statement or

answer to a question which may incriminate an accused even though it is not

phrased in the form of a demand: see R. v. Manninen, supra, per Lamer J. at pp.

392-3 C.C.C., p. 105 C.R.

Waiver

The Crown took the position that, as the questioning by McCormick took place

after the appellant had been informed of his rights under s. 10(b) and as the

appellant had not expressly refused to speak to the police but on the contrary,

had proceeded to respond to the question voluntarily with full knowledge of his

rights, there was no violation of s. 10(b) of the Charter. The Crown relied on

decisions of this court in R. v. Anderson (1984), 45 O.R. (2d) 225, 10 C.C.C. (3d)

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417, 7 D.L.R. (4th) 306; R. v. Esposito (1985), 53 O.R. (2d) 356, 24 C.C.C. (3d)

88, 49 C.R. (3d) 193, and R. v. Ferguson (1985), 20 C.C.C. (3d) 256, 16 C.R.R.

21.

In Anderson the issue was whether an accused must not only be advised of his

right to counsel, but must also be asked whether he understands the meaning of

the right and whether he wished to retain counsel, and that unless there is a clear

waiver of this right by the accused he must be given the facility or opportunity to

exercise it. There was no evidence that the accused expressed a desire to call

counsel or that he made a request to do so at any time between the time of his

arrest and the time he made a statement to the police one hour and fifty minutes

later. The court concluded that absent proof of circumstances indicating that the

accused did not understand his right to retain counsel when he was informed of it,

the onus had to be on him to prove that he asked for the right but it was denied or

he was denied any opportunity to even ask for it and there was no such evidence

put forth in that case. The court did not deal with the question whether the

accused was given a reasonable opportunity to retain and instruct counsel nor did

it deal specifically with the manner in which a waiver of an accused's s. 10(b)

rights can be given. It was a case where the accused did not indicate that he

wished to consult a lawyer and gave a statement to the police after his co-

accused assured him he had made an incriminating statement in writing which

was shown to the accused by the police.

In the Esposito case the questioning of the accused took place prior to his arrest

at his home. This court, on the facts of the case, found that the accused had not

been arrested or detained within the meaning of s. 10 and accordingly the

provisions of s. 10(b) were not applicable to statements which he made prior to

his arrest. After his arrest the accused was duly informed of his rights before he

made a statement to the police. With respect to the statement Martin J.A. said at

p. 365 O.R., p. 97 C.C.C., in delivering judgment for the court:

If the suspect states that he wishes to retain counsel all questioning must cease until he has been afforded the opportunity of consulting counsel: see R. v. Manninen (1983), 43 O.R. (2d) 731 at p. 737, 8 C.C.C. (3d) 193 at p.

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198, 3 D.L.R. (4th) 541 (Ont. C.A.). There was no contravention of that principle in this case. The crucial question is whether the appellant was detained prior to his arrest while he was being questioned by the police, thereby bringing into play the provisions of s. 10(b).

The Ferguson case involved an accused charged with unlawful possession of a

weapon, possession of a weapon for a purpose dangerous to the public peace,

carrying a concealed weapon and possession of stolen property of a value not

exceeding $200. He was arrested at 10:03 a.m. He was informed of his rights at

10:05 a.m. At 10:41 a.m. he asked to call his lawyer and received full co-

operation from the officers. He eventually called a friend to get a lawyer for him

having stated he had nothing to say until he talked to his lawyer. The officer in

charge stated that it was not clear that the appellant wanted to wait for the lawyer.

A conversation took place at 1:00 p.m. at which little was said and later at 2:47

p.m. Further conversation took place without caution in which the accused

admitted the theft of the stolen goods and the purchase of a gun. The trial judge

found that the accused was not a neophyte and that there were no threats,

promises or inducements. He had been informed of his rights immediately after

his arrest. In those respects the facts in Ferguson correspond with the facts in the

case at bar. In Ferguson, however, the trial judge found that "the appellant, for his

own reasons, saw fit to make voluntary replies to routine investigation questions".

The statement made by the accused was made several hours after he had

indicated he wished to call his lawyer. In the case at bar the utterance of the

appellant was made in answer to a question posed by McCormick less than one-

half hour after he had requested a lawyer and within several minutes after he had

made a telephone call to his lawyer's office. The utterance was not made in reply

to a routine investigation question. It was made in answer to a question which

was obviously a "trick" question posed by an officer who did not expect to get a

statement from the accused by routine questioning. There is of course no

impropriety in police obtaining evidence by conduct which is in the nature of a

trick but is otherwise lawful: see Rothman v. The Queen (1981), 59 C.C.C. (2d)

30, 121 D.L.R. (3d) 578, [1981] 1 S.C.R. 640. In my opinion, however, the fact

that a statement is obtained from an accused by a "trick" is relevant in

determining whether such accused has waived his rights under s. 10(b). The

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charge in the case at bar was, of course, much more serious than in Ferguson

and the request made by McCormick presumed the appellant's guilt.

In Ferguson, Lacourcière J.A. said at p. 259 in delivering the judgment for the

court:

A suspect who has been made aware of his constitutional rights under the Charter is, of course, free to remain silent but is also free to talk if he thinks that it will serve his purpose to do so... we have not been persuaded that the learned trial judge erred in finding that the appellant's rights under s. 10(b) of the Charter had not been infringed, nor did he err in admitting the statements into evidence.

Although the circumstances in Ferguson are somewhat similar to those in the

present case, there are, as noted, important dissimilarities. The decision in

Ferguson was delivered after the Ontario Court of Appeal decision in Manninen

but before the decisions of the Supreme Court of Canada in Therens, Clarkson

and Manninen to which reference has already been made and in Collins v. The

Queen (1987), 33 C.C.C. (3d) l, 38 D.L.R. (4th) 508, [1987] 1 S.C.R. 265.

In dealing with the question of waiver Wilson J. said in Clarkson at p. 218 C.C.C.,

pp. 394-5 S.C.R.:

Given the concern for fair treatment of an accused person which underlies such constitutional civil liberties as the right to counsel in s. 10(b) of the Charter, it is evident that any alleged waiver of this right by an accused must be carefully considered and that the accused's awareness of the consequences of what he or she was saying is crucial. Indeed, this Court stated with respect to the waiver of statutory procedural guarantees in Korponey v. A.-G. Can. (1982), 65 C.C.C. (2d) 65 at p. 74, 132 D.L.R. (3d) 354 at p. 363, [1982] 1 S.C.R. 41 at p. 49, that any waiver

"... is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process."

(Emphasis in original.)

She said further at p. 219 C.C.C., p. 396 S.C.R.:

Rather, the purpose of the right [right to counsel], as indicated by each of the members of this Court writing in Therens, supra, is to ensure that the accused is treated fairly in the criminal process. While this constitutional

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guarantee cannot be forced upon an unwilling accused, any voluntary waiver in order to be valid and effective must be premised on a true appreciation of the consequences of giving up the right.

The most recent decision in the Supreme Court of Canada dealing with rights

under s. 10 of the Charter and the waiver thereof is R. v. Manninen, supra. The

case is clearly distinguishable from the case at bar on its facts in that a statement

was made in response to questioning by the police after they had informed the

accused of his rights and cautioned him. He then indicated that he would say

nothing until he saw his lawyer and that he desired to see him. Without giving the

accused the opportunity to retain, instruct or see his lawyer an officer questioned

him and obtained an incriminatory response. The principles applied in that case

are, however, applicable to the present case. Lamer J. in delivering a unanimous

judgment for the court said at p. 391 C.C.C., p. 103 C.R.:

In my view s. 10(b) imposes at least two duties on the police in addition to the duty to inform the detainee of his rights. First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay. The detainee is in the control of the police and he cannot exercise his right to counsel unless the police provide him with a reasonable opportunity to do so.

At p. 392 C.C.C., p. 104 C.R., he qualified this statement by saying:

Of course, there may be circumstances in which it is particularly urgent that the police continue with an investigation before it is possible to facilitate a detainee's communication with counsel. There was no urgency in the circumstances surrounding the offences in this case.

He continued by saying:

Further, s. 10(b) imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel. The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights.

He then quoted from his judgment in R. v. Therens, supra, where he discussed

the duty imposed on the police in the context of a breathalyzer demand and

where he said at p. 490 C.C.C., p. 624 S.C.R.:

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... s. 10(b) also imposes a duty not to call upon the detainee to provide that evidence without first informing him of his s. 10(b) rights and providing him with a reasonable opportunity and time to retain and instruct counsel.

At pp. 392-3 C.C.C., p. 105 C.R., Lamer J. then, in referring to the judgments of

Wilson J. in Clarkson, supra, and of the Ontario Court of Appeal in Anderson and

Esposito, supra, said the following:

This passage was cited by Wilson J. in Clarkson v. The Queen (1986), 25 C.C.C. (3d) 207 at p. 217, 26 D.L.R. (4th) 493 at p. 504, [1986] 1 S.C.R. 383 at p. 394 in the context of confessions, and I agree that this duty is equally applicable in that context. The Ontario Court of Appeal came to the same conclusion in Anderson, supra, and in R. v. Esposito (1985), 29 C.C.C. (3d) 88 at p. 97, 53 O.R. (2d) 356, 49 C.R. (3d) 193: "If the suspect states that he wishes to retain counsel all questioning must cease until he has been afforded the opportunity of consulting counsel."

He then reiterated at p. 393 C.C.C., p. 105 C.R.:

Again, there may be circumstances in which it is particularly urgent that the police proceed with their questioning of the detainee before providing him with a reasonable opportunity to retain and instruct counsel, but there was no such urgency in this case.

As I have previously stated in these reasons the fact that the appellant herein was

not given adequate privacy, that he had requested the right to consult with

counsel, that questioning by McCormick took place almost immediately after the

appellant attempted to consult counsel, that although the appellant knew that he

was not obliged to answer questions, he may not have realized plea bargaining

by him might incriminate him and he had no opportunity to obtain advice from his

counsel, that there was nothing urgent to require the police to proceed with

questioning of the appellant, all lead to the inevitable conclusion that the appellant

was not given a reasonable opportunity to retain and instruct counsel.

The Crown, in the case at bar argued, as it argued in Manninen, that there was no

infringement of the right to counsel because the accused had waived his right by

answering the questions of the police officer. In dealing with this argument in

Manninen, Lamer J. said at p. 393 C.C.C., pp. 105-6 C.R.:

While a person may implicitly waive his rights under s. 10(b), the standard will be very high (Clarkson, supra, at pp. 217-8 C.C.C., pp. 504-5 D.L.R., pp. 394-5 S.C.R.). In my view the respondent's conduct did not constitute an

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implied waiver of his right to counsel ... Rather, the form of the questioning was such as to elicit involuntary answers. The police asked two innocuous questions followed by a baiting question which led the respondent to incrim-inate himself... Finally, the respondent had a right not to be asked questions, and he must not be held to have implicitly waived that right simply because he answered the questions. Otherwise, the right not to be asked questions would only exist where the detainee refused to answer and thus where there is no need for any remedy or exclusionary rule.

In Clarkson, supra, Wilson J., in dealing with waiver made reference to Korponey

v. A.-G. Can. (1982), 65 C.C.C. (2d) 65, 132 D.L.R. (3d) 354, [1982] 1 S.C.R. 41,

in the passage quoted above. That case discussed the waiver by an accused of

the re-election requirements of s. 492 of the Criminal Code and the waiver of the

two-part trial under s. 8 of the Narcotics Control Act as then required by the Code

with respect to a charge of possession of drugs for the purpose of trafficking. It

also discussed the decision of the Supreme Court of Canada in Park v. The

Queen (1981), 59 C.C.C. (2d) 385, 122 D.L.R. (3d) l, [1981] 2 S.C.R. 64. In my

opinion the decision of the court in Korponey does not mean that a waiver of

procedural rights can only take place where an accused has expressly stated in

words "I am waiving my rights" or words of a similar nature. It simply means that

the circumstances surrounding the failure to comply with procedural safeguards,

including words, if any, spoken by or on behalf of an accused, must be such that it

is clear and unequivocal that the person is waiving the procedural safeguard and

is doing so with full knowledge of the rights the procedure was enacted to protect

and of the effect the waiver will have on those rights in the process.

That decision also makes clear that mere silence or lack of objection does not

constitute a lawful waiver of a procedural safeguard contained in a statute.

In Manninen, supra, it is made clear that the law with respect to waiver of a

procedural safeguard contained in a statute is equally applicable to waiver of a

right enshrined in the Canadian Charter of Rights and Freedoms.

The circumstances surrounding the statement made by the appellant to

McCormick were that it was made during a conversation initiated by a police

officer shortly after the appellant's endeavour to contact his lawyer was

unsuccessful. The nature of the request made by the officer was that of a trick. It

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was a baiting question of an accusatory nature likely to elicit an involuntary

answer. The fact that the appellant answered the question without objection and

without having stated that he wished to speak to a lawyer before answering

questions and the fact that he was a person familiar with criminal procedure are

circumstances to be considered along with the other circumstances mentioned in

determining whether as a matter of law the appellant waived his rights under s.

10(b). In my opinion, having regard to all the circumstances, the Crown has failed

to satisfy the onus of showing that the appellant has waived his rights under s.

10(b).

It must be kept in mind that the question of waiver arises only if the accused has

not been given a reasonable opportunity to regain and instruct counsel without

delay. The matter of police questioning of an accused after an accused has been

informed of his rights is relevant with respect to the question as to whether the

accused has been denied his right under s. 10(b). Questioning of an accused by

police before he has a reasonable opportunity to retain and instruct counsel

constitutes an infringement of the rights unless he has waived his rights. On the

other hand, the police are entitled to question an accused without asking for and

obtaining his consent, if he has had a reasonable opportunity to retain and

instruct counsel. The usual principles with respect to the admissibility of

statements made to persons in authority would still apply.

Should the conversation between the appellant and McCormick be excluded

pursuant to the provisions of s. 24(2) of the Charter?

Having reached the conclusion that a Charter right has been infringed and that

the appellant did not waive such right, it is necessary to consider whether the

appellant has established, on a civil standard, that its admission could bring the

administration of justice into disrepute: see Collins, supra, at pp. 21-2 C.C.C., p.

287 S.C.R. The Supreme Court of Canada has enunciated the principles to be

applied in considering the exclusion of evidence obtained in such circumstances

in Therens, Clarkson and in Collins, supra.

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After stating a number of factors which have been considered frequently by the

courts in determining whether the admission of evidence in the proceedings

would bring the administration of justice into disrepute Lamer J. said in Collins, at

pp. 19-20 C.C.C., pp. 284-5 S.C.R.:

Certain of the factors listed are relevant in determining the effect of the admission of the evidence on the fairness of the trial. The trial is a key part of the administration of justice, and the fairness of Canadian trials is a major source of the repute of the system and is now a right guaranteed by s. 11(d) of the Charter. If the admission of the evidence in some way affects the fairness of the trial, then the admission of the evidence would tend to bring the administration of justice into disrepute and, subject to a consideration of the other factors, the evidence gradually should be excluded. It is clear to me, that the factors relevant to this determination will include the nature of the evidence obtained as a result of the violation and the nature of the right violated and not so much the manner in which the right was violated. Real evidence that was obtained in a manner that violated the Charter will rarely operate unfairly for that reason alone. The real evidence existed irrespective of the violation of the Charter and its use does not render the trial unfair. However, the situation is very different with respect to cases where, after a violation of the Charter, the accused is conscripted against himself through a confession or other evidence emanating from him. The use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self-incrimination. Such evidence will generally arise in the context of an infringement of the right to counsel. Our decisions in R. v. Therens (1985), 18 C.C.C. (3d) 481, 18 D.L.R. (4th) 655, [1985] 1 S.C.R. 613, and Clarkson v. The Queen (1986), 25 C.C.C. (3d) 207, 26 D.L.R. (4th) 493, [1986] 1 S.C.R. 383, are illustrative of this. The use of self-incriminating evidence obtained following a denial of the right to counsel will, generally, go to the very fairness of the trial and should generally be excluded. Several Courts of Appeal have also emphasized this distinction between pre-existing real evidence and self-incriminatory evidence created following a breach of the Charter: see R. v. Dumas (1985), 23 C.C.C. (3d) 366, 41 Alta. L.R. (2d) 348, 66 A.R. 137 (Alta. C.A.); R. v. Strachan (1986), 24 C.C.C. (3d) 205, 25 D.L.R. (4th) 567, 49 C.R. (3d) 289 (B.C.C.A.), and R. v. Dairy Supplies Ltd., Man. C.A. (January 13, 1987), unreported [since reported [1987] 2 W.W.R. 661, 44 Man. R. (2d) 275]. It may also be relevant, in certain circumstances, that the evidence would have been obtained in any event without the violation of the Charter. There are other factors which are relevant to the seriousness of the Charter violation and thus to the dispute that will result from judicial acceptance of evidence obtained through that violation. As Le Dain J. wrote in Therens, supra, at p. 512 C.C.C., p. 686 D.L.R., p. 652 S.C.R.:

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"The relative seriousness of the constitutional violation has been assessed in the light of whether it was committed in good faith, or was inadvertent or of a merely technical nature, or whether it was deliberate, wilful or flagrant. Another relevant consideration is whether the action which constituted the constitutional violation was motivated by urgency or necessity to prevent the loss or destruction of the evidence."

After considering that, in cases where there was trivial breach of the Charter, the

exclusion of evidence essential to the charge would bring the administration of

justice into disrepute and all the more so if the offence was a more serious one,

he said at p. 21 C.C.C., p. 286 S.C.R.:

I hasten to add, however, that if the admission of the evidence would result in an unfair trial, the seriousness of the offence could not render that evidence admissible. If any relevance is to be given to the seriousness of the offence in the context of the fairness of the trial, it operates in the opposite sense: the more serious the offence, the more damaging to the system's repute would be an unfair trial.

In weighing the various circumstances present in the case at bar which the courts

have held to be relevant in considering whether evidence shall be excluded under

s. 24(2) the following facts must be taken into account. The charge is one of the

most serious in the Criminal Code. The right denied is that of the right to counsel.

There was no urgency involved in questioning the appellant. The impugned

evidence was not real evidence in the sense that term was used in Therens and

Collins. It is a case where "the accused is conscripted against himself through a

confession or other evidence emanating from him" which arose "in the context of

an infringement of the right to counsel". The accusatory nature of McCormick's

question and request and the timing of the question have the characteristics of a

deliberate breach of the appellant's rights rather than an inadvertent or technical

breach.

The statement "For second degree murder charge" allegedly made by the

appellant is one from which a jury could reasonably infer that Walz had been

killed and that the appellant had killed him. Both of these matters were seriously

in issue as part of the defence.

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In his address to the jury Crown counsel dwelt on the appellant's conversation

with McCormick for a considerable period of time. He emphasized the importance

of this evidence with remarks such as: "We then get to Inspector McCormick. In

respect of that most key element of the case, the utterance made by Playford in

the cells, what was McCormick's version?" and later:

Now, this is important stuff and you may as well ask yourself why would Playford say these things ... that response was such as no innocent person would ever say ... The question was popped at Playford and he gave an unguarded reply and that's why he did it.

The trial judge in his charge to the jury said: "In addition, the Crown relies on the

utterance made by Mr. Playford to Detective Inspector McCormick the day after

Mr. Playford's arrest." and later:

There are two other matters I wish to deal with, with respect to the evidence. The utterance made to Detective McCormick that the Crown says is important. You will be the judge of how important that is, and as I have said earlier, of what was said and in what circumstances.

In my view, on the basis of the principles of law set forth in Therens, Clarkson and

Collins, supra, the admission of the appellant's utterances to McCormick as

evidence at trial would result in an unfair trial and would bring the administration

of justice into disrepute having regard to all the circumstances and, accordingly,

the learned trial judge erred in admitting this evidence.

I am not satisfied that the verdict would necessarily have been the same if the

error had not occurred and accordingly the appeal cannot be dismissed on the

ground that no substantial wrong or miscarriage of justice has occurred.

On the other hand, there is a substantial body of evidence consisting of

statements allegedly made by the appellant to Stevenson in 1977 and intercepted

communications between the appellant and Stevenson in Stevenson's residence

on February, 1984 (which, in my view, were properly admissible for reasons

hereinafter stated), which, if believed, was sufficient for a properly instructed jury

to return a verdict of guilty of first degree murder.

Accordingly, I would on this ground allow the appeal, quash the conviction and

order a new trial.

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II Was the consent given by Stevenson an February 20, 1984, a valid consent to

intercept the communications of the appellant with Stevenson?

The written consent reads as follows:

IN THE MATTER OF a consent to intercept the private communications of Brian Robert Stevenson, pursuant to the provisions of section 178-11(2)(a) of the CRIMINAL CODE. I Brian Robert Stevenson, 8 Grandview Ave. Galt, Cambridge, Ont. hereby expressly CONSENT to the interception, by means of an electromagnetic, acoustic, mechanical or other device, of any private communications to which I am a party either as an originator or an intended recipient by officers of the ONTARIO PROVINCIAL POLICE and such other persons as may be necessary to assist them in the interception of the aforementioned private communications.

This consent to intercept private communications extends from

20 February 1984

Date

until 20 April, 1984

Date

Brian Stevenson

Signature of consenting person

February 20, 1984.

Date

Connor

Signature of Witness

At trial the appellant took the position that the consent was invalid on the basis

that it had been obtained by fraud or coercion on the part of the police. In the

alternative it was submitted by the appellant that the evidence obtained under the

consent was inadmissible because he was not a party to the consent and that the

provision of s. 178.11(2)(a) of the Criminal Code in so far as it purports to make a

private communication admissible in evidence against a person who makes such

private communication to the consenting person, conflicts with the Canadian

Charter of Rights and Freedoms and is constitutionally invalid because it is an

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infringement of s. 8 of the Charter. After a voir dire the trial judge found as a fact

that there had been no fraud or coercion on the part of the police and that

evidence obtained pursuant to s. 178.11(2), even if it constituted a seizure within

the meaning of s. 8 of the Charter, cannot be said to be unreasonable within the

meaning of that word as used in the section.

On this appeal the appellant relied only upon the constitutional argument. The

same issue arose in R. v. Sanelli, Duarte and Fasciano, infra, an appeal which

was heard by the same panel of this court on May 20 and 21, 1987. It was agreed

by counsel in this case that the submissions made in the Duarte case would be

applicable to both appeals and that the findings in that case would be

determinative of the same issues in this appeal. In Duarte this court held, for the

reasons contained in a judgment released September 10, 1987 (not yet reported

[since reported 61 0. R. (2d) 385, 38 C.C.C. (3d) 1, 60 C.R. (3d) 142]), that s.

178.11(2)(a) of the Criminal Code does not contravene the provisions of s. 8 of

the Charter. I conclude, accordingly, that the communications of the appellant

with Stevenson intercepted at Stevenson's residence were lawfully intercepted

and were properly admitted in evidence.

The appellant submitted that regardless of such a finding, the interception of

communications from the Sauble Beach cottage belonging to the parents of the

appellant was unlawful and the evidence resulting therefrom inadmissible. This

argument was based on the assumption that the judicial authorization given by

the Honourable Judge F. Costello was invalid. The interceptions at the Sauble

Beach cottage were conducted by means of an electronic probe surreptitiously

installed at the cottage of the appellant's parents. This installation involved a

break and enter on the part of the installing officers and the use of an infinitesimal

amount of electrical power belonging to the telephone company. There was some

evidence to suggest that the police had implied permission to use such power. It

is clear that where there is a valid court authorization authorizing the interception

of private communications in a private residence by use of a radio device or

electromagnetic device, the police by necessary implication and inference have

the right to enter such premises to install and maintain such equipment and there

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is no trespass in law: Lyons v. The Queen (1984), 15 C.C.C. (3d) 417, 14 D.L.R.

(4th) 482, [1984] 2 S.C.R. 633.

It was the position of the appellant that, absent a valid authorization, the

interception of the appellants' private communication pursuant to Stevenson's

consent was unlawful because Stevenson could not consent to or authorize a

police entry into the private premises belonging to a third party and accordingly

the evidence obtained from the interception was inadmissible.

For reasons hereinafter set forth, it is not possible on this appeal to determine the

validity of the authorization given by the Honourable Judge F. Costello. It is only

in the event that it is invalid that the appellant's submission need be considered

and accordingly we do not have to deal with it at the present time. As the trial

judge found the authorization to be valid, he did not have to consider this

submission made by the appellant and he admitted as evidence the

communications intercepted at the Sauble Beach cottage.

III Did the trial judge err in not reviewing and permitting appellant's counsel to

review the contents of the sealed packet before ruling that the authorization given

by the Honourable Judge F. Costello was valid?

During the course of the voir dire to determine the admissibility of statements

made by the appellant, counsel for the appellant applied for a review of the

authorization granted by Judge Costello. The learned trial judge decided that, for

the purpose of review, he had jurisdiction to hear the application as a judge of the

same court as the authorizing judge. The application appears to have been -

based on the appellant's allegations that the police failed to disclose to the judge

hearing the application for the authorization the fact that the police had obtained

the consent from Stevenson, that the electronic probes had been installed in his

automobile and home prior to the authorization and the fact that guns were to be

used in the scam and a third party was involved. The reviewing judge was of the

opinion that it was necessary that the appellant make out a prima facie case of

fraud, non-disclosure or misleading disclosure before he could order that the

sealed packet containing the application and affidavit in support thereof be

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opened to determine whether in fact, fraud or substantial non-disclosure or

misleading disclosure existed. The officer who made the affidavit used in support

of the application for an authorization gave evidence and was cross-examined by

appellant's counsel.

In making his application counsel for the appellant stated that he was applying to

the judge to "look behind the authorization". He stated, however, that he was not

sure that it involved opening the sealed package. He stated it was a "Wilson

application", referring to Wilson v. The Queen (1983), 9 C.C.C. (3d) 97, 4 D.L.R.

(4th) 577, [1983] 2 S.C.R. 594, in which he sought to cross-examine the affiant

with respect to the contents of his affidavit but at no time asked for the production

of the affidavit. Counsel for the Crown opposed cross-examination of the affiant

on the contents of his affidavit on the grounds that "that is going into the packet".

The reviewing judge allowed cross-examination on the contents of the affidavit

but did not order that the affidavit be produced for examination. Defence counsel

was in effect cross-examining an affiant on the contents of an affidavit which he

had never had the opportunity of examining. He was obliged to rely on the

memory and truthfulness of the witness in order to ascertain its contents.

Although it cannot be determined whether the witness was truthful in his answers

with respect to those facts which he said he remembered as having been

included in the affidavit, it is clear that his memory was hazy with respect to the

contents of the affidavit. He had no notes of the affidavit. He did not remember

whether it disclosed that the police had Stevenson's consent to intercept

communications. He did not remember whether it disclosed that a "bug" had

already been planted in Stevenson's house. He could not remember what details

of the proposed drug scheme were mentioned or whether any mention was made

that the use of guns would be involved in the scheme.

On the basis of the evidence before him the reviewing judge found there was no

intent to mislead and no substantial non-disclosure on the part of the police and

upheld the validity of the authorization and held that the private communications

intercepted at the Sauble Beach residence were admissible. On the appeal, the

appellant took the position that the trial judge erred in ruling that the appellant was

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required to establish a prima facie case of fraud, non-disclosure or misleading

disclosure before access could be given to the application and supporting affidavit

contained in the packet sealed pursuant to s. 178.14 of the Criminal Code, and

erred in ruling on the validity of the judicial authorization purporting to authorize

the interceptions without first allowing the appellant an opportunity to review the

supporting affidavit, and to challenge the validity of the authorization if the

circumstances warranted such a challenge and without himself examining the

affidavit when the authorization was challenged.

By the time of trial it was obvious to the appellant that Stevenson was a police

informant and the examination of the affidavit by the appellant would not have

created an increased danger to the safety of the informant nor would it have

revealed secret police investigation techniques having regard to the evidence

adduced at trial through Stevenson who was a Crown witness.

In Wilson v. The Queen, supra, the Supreme Court of Canada dealt with the

question of review of authorizations given under s. 178.13(1) and the jurisdiction

of judges at various court levels to hear such reviews. It further dealt with the

procedure to be adopted on such reviews, including the question as to whether

the contents of the sealed packet should be opened. This case was determined

before the Canadian Charter of Rights and Freedoms came into effect. Since the

Charter has come into effect this court had occasion to deal with this matter in R.

v. Finlay and Grellette (1985), 52 O.R. (2d) 632, 23 C.C.C. (3d) 48, 23 D.L.R.

(4th) 532. In that case an attack was made by the appellants on the constitutional

validity of Part IV.1 of the Criminal Code because of the restriction of the

accused's access to the material upon the basis of which the authorization was

granted. After finding that the legislative scheme of Part IV.1 was constitutional

Martin J.A. in delivering judgment for the court said at p. 663 O.R., p. 78 C.C.C.:

It is scarcely necessary to add that although the legislative scheme of Part IV.1 is

constitutional, the granting of a particular authorization in the circumstances may

be unreasonable and hence infringe s. 8.

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In considering the question of the constitutional validity of Part IV.1 Martin J.A.

compared it to the provisions of the Omnibus Crime Control and Safe Streets Act,

18 U.S.C.A. §§2510-20, and United States jurisprudence dealing therewith and

dealt in particular with the secrecy provisions. In dealing with the secrecy

provisions and orders for access to the contents of the sealed packet Martin J.A.

said at pp. 660-2 O.R., pp. 76-7 C.C.C.:

Section 178.14 requires that the material relating to the application be kept secret,

and reads:

"178.14(1) All documents relating to an application made pursuant to section 178.12 or subsection 178.13(3) are confidential and, with the exception of the authorization, shall be placed in a packet and sealed by the judge to whom the application is made immediately upon determination of such application, and such packet shall be kept in the custody of the court in a place to which the public has no access or in such other place as the judge may authorize and shall not be

(a) opened or the contents thereof removed except (i) for the purpose of dealing with an application for renewal of the authorization, or (ii) pursuant to an order of a judge of a superior court of criminal jurisdiction or a judge as defined in section 482; and

(b) destroyed except pursuant to an order of a judge referred to in subparagraph (a)(ii).

"(2) An order under subsection (1) may only be made after the Attorney General or the Solicitor General by whom or on whose authority the application was made for the authorization to which the order relates has been given an opportunity to be heard."

Unquestionably the policy underlying the secrecy provisions of s. 178.14 is to protect the privacy of innocent persons mentioned in the material, to protect police informers and to avoid revealing police techniques or investi-gative procedures which might be contrary to the public interest. Section 2518(8)(b) of Title III is somewhat similar to s. 178.14 of the Code. The case-law severely restricts the accused's access to the sealed packet and generally is to the effect that the sealed packet may only be opened where there is prima facie evidence of fraud or non-disclosure; see Re Miller and Thomas and The Queen (1975), 23 C.C.C. (2d) 257 at p. 301, 59 D.L.R. (3d) 679 at p. 723, 32 C.R.N.S. 192 (B.C.S.C.); Re Stewart and The Queen (1976), 13 O.R. (2d) 260, 30 C.C.C. (2d) 391, 70 D.L.R. (3d) 592 (Ont. H.C.J.); Re Royal Com'n Inquiry into Activities of Royal American Shows Inc. (No. 3) (1978), 40 C.C.C. (2d) 212 at p. 219 (Alta. S.C.T.D.); Watt, supra, at pp. 248-52; Cohen, supra, at p. 150.

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In Wilson v. The Queen, [1983] 2 S.C.R. 594 at pp. 622-3, 9 C.C.C. (3d) 97 at p. 110, 4 D.L.R. (4th) 577 at p. 590, Mr. Justice Dickson (now Chief Justice) said;

"It is not necessary to decide whether this restricted view of s. 178.14 is correct. There is a broad consensus that prima facie evidence of fraud or non-disclosure is a valid reason for opening the packet. Misleading disclosure would be in the same category. The present case is one in which the trial judge made a prima facie finding of either misleading disclosure or non-disclosure."

Counsel for the appellants stated that in consequence of the restriction placed on an accused's access to the sealed packet, the accused finds himself in an impossible situation. To ascertain whether there has been fraud or non-disclosure he requires access to the sealed packet, but he cannot gain access to the sealed packet unless he proves fraud or non-disclosure. In contrast, §2518(9) of Title III provides that the contents of an intercepted wire or oral communication shall not be received in evidence unless each party, not less than ten days before the trial, has been furnished with a copy of the court order and accompanying application, under which the interception was authorized. Counsel for the appellants contended that the denial to the accused of access to the application and accompanying material leading to the authori-zation precludes the accused from making full answer and defence and hence Part IV.1 is unconstitutional. Mr. Hubbard for the Attorney-General of Canada responded to this argument by pointing out, quite correctly in my view, that no provision in Part IV.1 and, in particular, no provision in s. 178.14 providing for the confidentiality of the material leading to the authori-zation denies an accused access to that material where it is essential to his defence. Rather, he said such denial results from the way in which the provi-sions have been interpreted by the courts. It may be that the interests protected by the policy underlying the restriction of an accused's access to the sealed packet can in many cases be effectively protected in other ways, e.g., by deleting in the copy supplied to the accused the names of informers and innocent persons who might be injured by the revelation of their names. In Wilson v. The Queen, supra, Mr. Justice Dickson said at p. 621 S.C.R., p. 109 C.C.C., p. 589 D.L.R.:

"The affidavit would not need to be made public in order to rule evidence inadmissible; selected aspects only could be made public. As Stanley A. Cohen suggests in his work Invasion of Privacy: Police and Electronic Surveillance in Canada (1983), the integrity of the packet might be preserved `through judicial screening and, if access is necessary, judicial editing' (p. 155)."

In any event, I do not consider that the case-law restricting the accused's access to the sealed packet renders Part IV.1 unconstitutional. The restriction may be relevant to the issue of whether the accused in a

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particular case has been denied a fair trial, secured by s. 7 of the Charter, but it does not render Part IV.1 unconstitutional as contravening s. 8 of the Charter.

(Emphasis added.)

It may be that cases will arise where an accused will have sufficient information

and evidence available to show at least on a prima facie basis that fraud, non-

disclosure or misleading disclosure have been used in obtaining a judicial

authorization. In such cases orders will no doubt be made for access to the

affidavits used in support of the application for a judicial authorization. Where,

however, an accused does not have access to information and evidence, other

than that which might be contained in or provided by the affidavit, in order to

prove fraud, non-disclosure or misleading disclosure, such accused finds himself

in a catch-22 situation — he cannot gain access to the affidavit unless he can

prove on a prima facie basis the grounds for such access and he cannot prove

such grounds unless he has access.

If the law were that an accused cannot have access to the contents of the sealed

packet unless he shows at least on a prima facie basis the existence of fraud,

non-disclosure or misleading disclosure on the part of the police in obtaining a

judicial authorization, could it be said in a case where an accused cannot obtain

the necessary information and evidence to satisfy such an onus without access to

the affidavit, that such an accused has received a fair trial where he contests the

validity of the authorization and the admissibility of the evidence obtained through

its use on the grounds that the authorization was improvidently given?

Section 7 of the Charter reads as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

In essence it provides that every person has a right to a fair trial.

Section 8 of the Charter reads as follows:

8. Everyone has the right to be secure against unreasonable search or seizure.

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For the most part our jurisprudence with respect to unreasonable search and

seizure has dealt with the search of premises and seizure of physical evidence

both with and without a warrant. It is clear that where a search has taken place

under a warrant issued pursuant to the provisions of s. 443 of the Criminal Code,

an accused is entitled to have access to the written information upon oath placed

before a justice to obtain a warrant, where he wishes at trial to challenge the

validity of the warrant and the admissibility of evidence obtained from its

execution: see A.-G.N.S. v. Maclntyre (1982), 65 C.C.C. (2d) 129, 132 D.L.R. (3d)

385, [1982] 1 S.C.R. 175, and R. v. Hunter (1987), 59 O.R. (2d) 364, 34 C.C.C.

(3d) 14, 57 C.R. (3d) 1. In Hunter, it was pointed out that the right to such access

to the information might be limited in certain circumstances where full disclosure

might reveal the identity of the informant in which event editing might be proper in

certain circumstances. It was held, however, in Hunter that failure to make

available to an accused the information used to obtain a warrant, either in its

original form or where appropriate, properly edited, constituted a denial of a fair

trial and an infringement of the rights of the accused under s. 7 of the Charter.

The denial of such information takes away from an accused the right to make full

answer and defence as provided in s. 577(3) of the Criminal Code and

accordingly infringes upon the right to a fair trial.

It was submitted by the Crown that while an analogy may be drawn between

judicial authorization to intercept private communications and judicial

authorization for search warrants, the laws and principles relating to each are not

interchangeable. This matter has been carefully considered by Watt J. in a recent

judgment in R. v. Parmar, released June 11, 1987, unreported [summarized 2

W.C.B. (2d) 226]. He said at pp. 43-4 of his reasons:

It cannot be and is not here seriously contested that in several respects the statutory scheme constructed by Part IV.1 of the Criminal Code is discrete from and different than that imposed in respect of conventional searches for physical evidence under the provisions of Part XIII of the Criminal Code. What remains equally clear, however, and as it has been authoritatively held in this Province, is that the interception of private communications under Part IV.1 is a "search or seizure" within s. 8 of the Charter: see R. v. Finlay and Grellette (1985), 52 O.R. (2d) 632, 23 C.C.C. (3d) 48, 23 D.L.R. (4th) 532, 48 C.R. (3d) 341 (C.A.). It follows that the constitutionality of judicially-

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authorized interceptional activity, or electronic surveillance as it may compendiously be described, falls as much to be adjudged against the standard of reasonableness erected by s. 8 as does that of a conventional search for physical evidence. Indeed, it may be observed in passing, that in its seminal decision in Hunter v. Southam Inc. (1984), 14 C.C.C. (3d) 97, 11 D.L.R. (4th) 641, 2 C.P.R. (3d) 1, [1984] 2 S.C.R. 145, the Supreme Court of Canada, when considering the constitutionality of a statutory scheme which provided for search and seizure of physical evidence under the Combines Investigation Act, R.S.C. 1970, c. C-23, placed particular reliance on Katz v. United States, 389 U.S. 347 (1967), a decision of the United States Supreme Court, which considered the constitutionality of a wire-tapping statute impugned under the Fourth Amendment to the United States Constitution.

He said further at pp. 45-6 of his reasons:

A similar observation has often been made in respect of conventional searches. Whether the search or seizure, the constitutionality of which falls to be considered, is a conventional search or the interception of private communications, the standard against which it is adjudged is that of s. 8 of the Charter. In each case, the constitutional attack may fasten upon the adequacy of the informational basis upon which the search authority was given, the breadth of the mandate conferred and/or the manner of its execution in the circumstances. In each case, disclosure of the information which underlies the grant of judicial authorization is necessary to permit defending counsel to test the lawfulness of the state's intervention. It is as much in the interest of all citizens that an accused should know the basis upon which the warrant was issued in the one case as it is in the other. The right and ability to challenge the basis upon which the state acquired its proof runs as deeply in the case of the interception of private communications as it does in the case of a conventional search. The constitutional standards of s. 7 and s. 11(d) of the Charter do not discriminate upon the basis of the kind of proof offered. It would be in a high degree anomalous to hold that one review mechanism is available in the event that the state finds the evidence, pursuant to a search warrant, yet another if they hear it, through authorized interceptions, though the self-same standard of reasonableness is in both cases applicable.

I agree with the opinions expressed by Watt J. in the passages quoted above.

Accordingly it is my opinion that where an accused, at trial, challenges a judicial

authorization on the basis that it has been improvidently given he is entitled to

have access to the affidavit and to examine it subject to the protection mentioned

by Martin J.A. in R. v. Finlay and Grellette, supra, and to the safeguards set forth

by Cory J.A. in Hunter, supra.

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I point out that in Parmar an order had been made prior to trial disclosing to

defending counsel an edited version of the affidavit of which further disclosure

was sought. The argument revolved around competing principles of full disclosure

and protection of the identity of a police informant as was the case in Hunter,

supra, which dealt with a search warrant. Watt J. held that the principles set forth

in the Hunter decision applied to the type of search conducted and seizure

effected by a judicially authorized interception of private communication. In the

case at bar the problem of identification of an informant was not present. In my

view the learned trial judge erred in not perusing the affidavit and making it

available to defence counsel. Without having done so it is not possible to know

whether the authorization was made without fraud, non-disclosure or misleading

disclosure.

It should be emphasized that the need for secrecy and non-disclosure of the

contents of the sealed packet prior to the expiration of an initial authorization or

any renewal thereof is self-evident. The availability to the public of the contents

thereof prior to the expiration of the authorization or any renewal thereof would

defeat the purpose of the authorization, namely, the clandestine interception of

private communications. On the other hand, once the authorization and any

renewal thereof has expired or the investigation of the offence and the persons

suspected of being involved therein has been completed, there is no logical or

policy reason to refuse to reveal the contents of the sealed packet, provided that,

where appropriate to protect the identity of an informant, the contents of the

sealed packet may be properly edited. It is no answer to say that the provision of

access by the accused to the affidavit may result in a fishing expedition which will

unduly lengthen trials. The Criminal Code permits an intrusion upon the privacy of

individuals by providing for judicial authorization for intercepted private

communications upon ex parte applications based on information contained in

affidavits in support thereof. It would be completely unreasonable to deny to an

accused the right to examine the affidavit which resulted in the invasion of that

person's privacy where such examination is provided at a time when it cannot

interfere with the investigation of the offence and alleged offender. Justice

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demands that he have the right to ascertain whether the search was a reasonable

one which did not infringe s. 8 of the Charter. There is no sensible reason for

requiring an accused to provide an evidentiary basis for requiring a sealed packet

to be opened. As pointed out previously, the evidentiary basis may exist in the

material in the sealed packet to which he does not have access.

In reaching this conclusion it should be noted that this decision does not mean

that the judicial authorization under consideration in the case at bar is invalid.

That is a question which must be determined on the basis of evidence tendered

on that issue, including the contents of the affidavit filed on the application for the

authorization. The admissibility of evidence obtained as a result of the

interception of the accused's communications pursuant to the authorization

cannot be determined until the validity of the authorization has been properly

determined and that has not been properly done in this case. I would point out

that the trial judge made his decision prior to and without the benefit of the

decision of this court in R. v. Finlay and Grellette and without an express request

on the part of defence counsel for access to the packet.

It should be noted that the case of Re Regina and Dersch, a decision of the

British Columbia Court of Appeal released on September 15, 1987 (not yet

reported [since reported 36 C.C.C. (3d) 435, 43 D.L.R. (4th) 562, [1987] 6 W.W.R.

700]), has been brought to our attention.

In that case the appellants had been charged with various offences involving

trafficking in drugs. The case for the Crown depended in large part on wiretap

evidence obtained under various authorizations issued under Part IV.1 of the

Criminal Code by judges of the County Court and judges of the Supreme Court of

British Columbia. Mr. Justice Esson, in delivering judgment for the court said at p.

2 of his reasons [p. 437 C.C.C.]:

The broad issue is whether an accused person, who has been notified by the Crown that it intends to rely in proof of the charges upon evidence obtained under such authorizations, is entitled as of right to have access to the contents of the sealed packet in order to explore the possibility of turning up some ground for attacking the validity of the authorization, and thus rendering inadmissible the evidence obtained by it.

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The accused, before trial or preliminary hearing, had applied in the County Court

and had obtained an order granting them access to the contents of the sealed

packets which contained the material filed in support of the applications. The

Crown then made an application before Murray J., a judge of the Supreme Court

of British Columbia, for an order in the nature of certiorari to quash that order and

prohibition to prevent the judge from making available to the accused copies of

the affidavits sealed in the packets. Murray J. granted those applications. He held

that it continues to be one of the essential ingredients of an application to open a

sealed packet that there be prima facie evidence of fraud or non-disclosure and

that, as there was no evidence to establish those elements, the County Court

lacked jurisdiction to make an order for access to the packet. Murray J. appears

to have misinterpreted the decision of Martin J.A. in Finlay, supra. Martin J.A. held

that the fact that earlier decisions of the courts had placed a restrictive

interpretation in s. 178.14 of the Code did not render it unconstitutional. Murray J.

interpreted this to mean that the case law did not offend the Charter and therefore

the decisions were still binding on him. A careful reading of the reasons of Martin

J.A. indicates that such an interpretation is erroneous. On the contrary the

reasons indicate that restrictions "may be relevant to the issue of whether the

accused in a particular case has been denied a fair trial, secured by s. 7 of the

Charter" even though they do not render Part IV.l unconstitutional as

contravening s. 8 of the Charter see "Hunter: Access to Sealed Documents and

Informer Privilege", J.W. O'Reilly, 57 C.R. (3d) 16 at p. 20.

The appeal in Dersch was from the decision of Murray J. [32 C.C.C. (3d) 346].

Esson J.A. agreed with Murray J.'s interpretation of the reasons given by Martin

J.A. in R. v. Finlay and Grellette and Murray J.'s other reasons for decision except

that he did not accept that an applicant to open a sealed packet must

demonstrate a prima facie of fraud or non-disclosure. Murray J. had relied upon

the decision of Anderson J. in Re Miller and Thomas and The Queen (1975), 23

C.C.C. (2d) 257, 59 D.L.R. (3d) 679, [1976] 1 W.W.R. 97. It was the view of

Esson J.A. that the decision in Miller and Thomas was not that restrictive. He

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quoted with approval the reasons of Anderson J. at pp. 288-92. I repeat here the

important parts of those reasons. Anderson J. said at pp. 288-9:

... in my opinion, Parliament did not provide for or intend that the sealed packet be opened merely for the purpose of ascertaining whether grounds existed for quashing the authorization .. . I am of the opinion, that the power given to Judges to open the sealed packet was a power to be used sparingly, and in accordance with well-recognized principles relating to confidential information in the possession of the police.

These principles may be stated as follows: (1) As a general rule, witness for the Crown will not be required to disclose the identity of an informer, or the information disclosed by an informer. (2) This rule is subject to the exception that when a man's innocence is directly at stake, the rule will be relaxed.

He then expressed the view that if the secret material were revealed it might

endanger the safety of informers and undercover agents, reveal information

relating to innocent persons and the modus operandi of police and hinder ongoing

investigations.

It should be noted that both Anderson J. and Esson J.A., in considering the

opening of the packet, appear to be primarily concerned with the safety of

informers. In considering this matter one must bear in mind that a great many

judicial authorizations are granted, the information in support of the applications

for which is not in any way based upon information supplied by police informants.

There is no evidence to suggest in any of the cases that the majority of such

authorizations result from information supplied by police informants. Furthermore,

the decisions to which Esson J. referred as unlimited access cases, as

recognized by him at p. 55 [pp. 470-l C.C.C.] of his reasons are not unlimited

access cases at all. In R. v. Finlay and Grellette and Parmar the court expressly

commented on availability of judicial editing for the purpose of protecting police

informants and innocent persons. Where police informants are involved in

supplying 'information which forms the basis of obtaining authorizations, it must

be kept in mind that such information may sometimes be suspect with respect to

its reliability.

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The same protection is available with respect to ongoing police investigations or

secret types of police procedure. In this regard it should be noted that the validity

of the interception will rarely be in issue until an accused has been notified by the

Crown pursuant to s. 178.16(4) of the Code that it intends to introduce an inter-

cepted private communication in evidence. By that time a charge will have been

laid, the interceptions will have been terminated and the accused will of course

know of the interceptions. The challenge to the lawfulness of the interception and

the admissibility of the evidence will almost always take place after the police

investigation has been substantially completed.

It is true, of course, that under s. 178.23(l) of the Code notice must be given to a

person who was the object of an interception pursuant to an authorization, within

90 days next following the period for which such authorization was given or

renewed. It may be that in rare circumstances such a suspected person might

apply to see the contents of the packet. It must be noted, however, that by virtue

of the provisions of s. 178.23(3) and (4), an order can be obtained extending the

90-day period to a period not exceeding three years. The police investigation, in a

proper case, will be unrevealed.

In upholding the decision of Murray J., Esson J.A. summarized his reasons as

follows. He said at pp. 63-4 of his reasons [pp. 475-6 C.C.C. ]:

The basic reason for that conclusion is that the Charter has not affected, in any general way, the statutory and case law which restricts access to the packet and precludes the trial judge from going behind the authorization. That follows from the finding that Part IV.l is consistent with the Charter.

With respect, I am not in agreement with the conclusion arrived at by him. In my

view the statute (the Criminal Code) and the relevant case law does not restrict

access to the packet in the manner suggested. Esson J.A. took the position that

the "unrestricted" access cases are based largely on the view that any

consideration which applies to search warrants applies equally to authorizations

under Part IV.1. Some of those decisions rely in part on the decision in A.-G. N.S.

v. Maclntyre, supra, where the Supreme Court of Canada considered the right of

a person who was subject to a conventional search pursuant to the provisions of

s. 443(1), to have access to the information upon the basis of which a warrant to

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search and seize was issued. Esson J.A. distinguished the search warrant cases

on the basis that they involved a physical invasion of premises and the exertion of

physical control over property found in those premises. He said interested

persons must have access to the warrant and supporting material in order to

contest the validity of the process which authorizes the invasion of property rights

as well as their privacy. He distinguished invasion of privacy cases on the basis

that by the time the person knows his privacy has been invaded, such invasion is

"irremediably in the past". In my opinion, the rights of a person in respect of

whose premises and property a search warrant has been issued and executed

are not less than is the case where the search and seizure has not been

completed even though the intrusion on the person's privacy by a search of his

premises is to use the words of Esson J.A. "irremediably in the past". As

previously stated, the interception of a private communication pursuant to a

judicial authorization is a search or seizure within the meaning of those words in

s. 8 of the Charter.

In my view, it cannot be said that interception of private communications pursuant

to a judicial authorization is less intrusive on a person's privacy than a search or

seizure pursuant to a s. 443(1) warrant. It seems to me that the former intrusion is

more serious in nature than the latter. It may occur over a lengthy period of time

without knowledge on the part of the person whose private communications are to

be intercepted. The very nature of the intrusion is such that it may involve the

interceptions of communications of the most private and personal nature with

relation to matters and persons in no way related to the subject-matter under

investigation. It is reasonable to infer from the provisions of Part IV.1 of the Code

that Parliament has considered such intrusions to be of the most serious

character. The provisions of s. 178.13(1) of the Code make it clear that an

authorization shall be given by a judge only when he is satisfied that other

investigative procedures have been tried and have failed or are unlikely to

succeed or the matter is so urgent that it would be impractical to carry out the

investigation. In effect, it is treated as a last resort investigative mechanism the

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requirements for the obtaining of which are much more stringent than for a search

warrant under s. 443(1).

In addition, by virtue of the provisions of s. 178.16(1) of the Code, a private

communication that has been intercepted is inadmissible as evidence against the

originator of the communication or the person intended by the origins if the

interception was not lawfully made. This drastic prohibition does not apply with

respect to evidence obtained as a result of an invalid search warrant or, indeed,

with respect to evidence obtained in a manner that otherwise infringes or denies

any rights guaranteed by the Charter. In such cases the provisions of s. 24(2) of

the Charter apply. The provisions of s. 178.16 are unique in the manner in which

they automatically exclude the admissibility of unlawfully intercepted

communications as evidence and reflect the importance that Parliament attached

to the invasion of privacy by unlawful interception of private communications.

Certainly a person whose privacy is invaded in this manner is entitled to no less

procedural rights in the nature of examination of the material upon which a judicial

authorization is given in order to determine its validity than is the ease with

respect to a search warrant issued pursuant to the provisions of s. 443(1).

In his reasons for judgment Esson J.A. stated at pp. 5-6 [pp. 439-40 C.C.C.] in

referring to the provisions of s. 178.16(1):

That is a statutory provision for exclusion of evidence but, again, it is a provision directed at protection of privacy rather than ensuring a fair trial ... It is a somewhat clumsy and arbitrary rule which (subject only to the narrow discretion given by s. 178.16(3)) requires exclusion without regard to balancing considerations such as the seriousness of the offence, the reliability of the evidence or the presence or absence of good faith on the part of the authorities. In that respect, it contrasts sharply with the exclusionary rule embodied in s. 24(2) of the Canadian Charter of Rights and Freedoms, which governs the exclusion of evidence obtained in a manner that infringes or denies rights or freedoms guaranteed by the Charter. Section 178.16 enacts a special rule which excludes evidence on a narrower basis than s. 24(2). It is, in my view, neither logical nor appropriate to invoke the Charter to justify broadening that statutory exclusion. There will undoubtedly be cases in which a breach of Charter rights, such as the guarantee of a fair trial, will lead to the exclusion of intercepts which would be admissible under the established interpretation of s. 178.16. That result can properly come about as the result

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of an application by the accused under s. 24(2) of the Charter, but not by broadening the scope of the statutory exclusion.

With respect I do not agree with this reasoning. It appears to "read down" the

provisions of s. 178.16(1) without any justification, a practice which Esson J.A.

critically attributed to the courts which gave decisions characterized by him as

unrestricted access cases.

In addition, to characterize the provisions of s. 178.16(1) as clumsy and arbitrary

does nothing to lessen their clarity or efficacy. They represent the will of

Parliament clearly expressed. There is no justification nor indeed is there any

power in the court to amend that legislation. To do so would be to do the very

thing that he suggests the courts have improperly done in the unrestricted access

cases.

Finally, it is my view that it is not enough to say that it is a provision directed at

protection of privacy rather than ensuring a fair trial. The essence of a fair trial

includes as a fundamental principle that only evidence properly admissible in law

will be admitted in evidence at trial. If relevant and material evidence is admitted

by a trial judge where it should be excluded by reason of an exclusionary rule of

evidence or a statutory provision, it cannot be said that an accused has had a fair

trial. An accused is entitled to be tried according to law. That is a principle of

fundamental justice. If Parliament does not wish to automatically exclude

unlawfully intercepted communications as evidence it will be necessary for it to

amend the provisions of s. 178.16(1).

To say that the refusal of the opportunity to demonstrate a defect in the

proceedings of a substantive nature, as distinct from a defect of form or

procedural irregularity, does not affect the right to make full answer or defence or

the right to a fair trial is erroneous for the reasons I have given.

In my opinion, it must be emphasized that the provisions of s. 178.14(1) do not

indicate that Parliament intended that the contents of the packet should be kept

secret forever. It gave to the judges designated in s. 178.14(1)(a)(ii), the right to

order that the packet may be opened or the contents removed. Such orders call

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for the judicial exercise of discretion. No additional legislation is required to

enable a judge to exercise such discretion. As previously indicated it would be

extremely difficult to justify a refusal by a judge to order the opening of a packet

and the production of the contents where such order would not interfere with the

investigation of a crime and the alleged perpetration thereof and where, if

necessary, appropriate safeguards are taken to protect informers, undercover

agents and secret police methods.

Every person is entitled to be free from unreasonable search or seizure under s. 8

of the Charter. It follows logically that he is entitled to all information which can be

made available without infringing upon some other person's right, in order to

determine whether such a search or seizure is unreasonable. A judge's refusal to

give such information in the circumstances outlined above would amount to a

failure to exercise his discretion judicially. It could not be supported on any logical

or policy basis. If, indeed, the authorization had been obtained on the basis of

some substantive defect which made the authorization invalid, then the private

communication is unlawfully intercepted and is inadmissible as evidence and the

interception constitutes an unreasonable search contrary to s. 8 of the Charter. If

the evidence is material evidence which has nevertheless been admitted at trial

and the accused is convicted, then the accused has not had a fair trial and has

been deprived of the right not to be deprived of life, liberty and security of person

except in accordance with the principles of fundamental justice, contrary to s. 7 of

the Charter. It is inconceivable that an accused should not be given the right to

ascertain whether his private communications have been lawfully intercepted,

when the necessary information is available and proper safeguards for protection

of the rights of others can be taken.

IV Alleged error in charge in instructing jury to compare the appellant's motive for

murdering the victim (to avoid his own imprisonment) with the alleged motive of

the victim to disappear in order to avoid his imprisonment on the charges

outstanding against him

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The appellant submitted that the trial judge erred in comparing the alleged motive

of the appellant to kill Walz in order to avoid conviction on the credit card charge

with that of the alleged motive of Walz to disappear in order to avoid his

conviction on the charge. He submitted that the motive of one proved nothing in

regard to the motive of the other and that there was no rational connection or

basis on which to draw reasonable inferences by comparing a motive to murder in

one person's mind with a motive to flee the jurisdiction in another person's mind.

In my view there was no error in the trial judge's charge in this regard. The Crown

endeavoured to show and relied upon proof of motive on the part of the appellant

to kill Walz. It was an important part of its case. Obviously the failure of Walz to

appear at the appellant's trial to give evidence and his disappearance for a period

of more than seven years thereafter was an important matter for the jury to

consider in determining whether Walz had died and, if so, whether he had been

killed by the appellant. As part of his defence, the appellant endeavoured to show

that Walz had a motive for disappearing and this was an important fact for the jury

to consider in determining whether Walz had disappeared in order to avoid going

to jail rather than having been killed so that the appellant would not go to jail.

The evidence relating to the motive of the appellant and Walz with respect to the

non-appearance of Walz in court in connection with the credit card charge was

circumstantial evidence properly admissible to be considered by the jury along

with all other evidence in determining whether Walz had been killed by the

appellant or had merely left the jurisdiction to avoid going to jail and had not been

killed. The remarks made by the trial judge in his charge were properly within the

limits of his authority to comment upon the weight to be given evidence adduced

at trial.

V Alleged error in trial judge's charge with respect to an alleged murder where the

body of the alleged victim cannot be found

The appellant submitted that in cases where the body of an alleged murder victim

cannot be found there is a rule of caution which makes it incumbent on a trial

judge to instruct a jury that they should proceed with great care because

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instances have arisen of persons being executed for murdering others who have

after-wards been found alive. In support of this submission he relied upon R. v.

King (1905), 9 C.C.C. 426, 6 Terr. L.R. 139 (N.W.T.C.A.); R. v. Burton (1854), 23

L.J.M.C. 52 at p. 54; Best, The Principles of the Law of Evidence, 12th ed. (1922),

p. 376; R. v. Chambers, [1947] O.R. 1038 at pp. 1044-5, 90 C.C.C. 238 at p. 241,

[1948] 1 D.L.R. 399, and Hale, Pleas of the Crown, vol. 2 (1847), p. 290.

In his charge, the trial judge said at pp. 1300-1:

The body of Mr. Walz has not been produced in this trial. The Crown alleges that he was shot to death in 1977, at the end of June or some time in early July. The fact that the body has not been found is an important consideration for you to weigh. That does not mean that a body must be produced in order to obtain a conviction for murder. If that was the law it would be apparent to you that murderers would guarantee their immunity merely by getting rid of the body. At the trial of a person charged with first degree murder, the fact of death is provable by circumstantial and in this case, circumstantial and direct evidence, notwithstanding that a body nor a trace of a body has been found. Before an accused can be convicted, the fact of death must be proved by such evidence as renders the commission of the crime morally certain and leaves no ground for reasonable doubt. The evidence should be so cogent and compelling as to convince a jury that under no rational hypothesis, other than murder, can the facts be accounted for.

That passage specifically refers to the fact that the absence of the body is an

important consideration to be weighed by the jury. At p. 1276 he said: "The Crown

in this case ... must satisfy you beyond a reasonable doubt ... (iv) that David Roy

Walz is dead ...". At p. 1313 he repeated: "The Crown must satisfy you beyond a

reasonable doubt that David Roy Walz is dead."

It is my view, that there is no rule of law in Ontario which requires that such

caution be given in any particular form and in particular there is no legal authority

to require a trial judge in his charge to a jury to say that persons have been

executed for the murder of alleged victims subsequently found to be alive. It is

sufficient if the trial judge points out to a jury that the fact that no body has been

found is an important factor to be considered by them in determining whether an

alleged victim is in fact dead. The nature of and importance of such caution will

depend on the circumstances of the case. There can be little doubt that such a

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caution is desirable where, as in this case, the evidence as to the death of the

victim and the disposition of the body is derived from statements made by the

accused. The trial judge's charge did, however, highlight the absence of the body

and the importance of weighing that evidence in considering whether the Crown

has discharged the burden of proving beyond a reasonable doubt the death of

Walz. This ground of appeal must fail.

In view of the fact that I have found that the trial judge erred on the basis of

grounds 1 and 3, submitted by the appellant and dealt with above, and in view of

the fact that I am of the opinion that it cannot be said that the verdict would

necessarily have been the same in the absence of such errors, the question

remains whether an acquittal should be entered or a new trial ordered. As stated

previously, it is clear from the evidence that there was adequate evidence, in the

nature of admissions made by the appellant to Stevenson years before any

communications were intercepted and in admissions made in intercepted

communications between Stevenson and the appellant in Stevenson's residence

pursuant to Stevenson's lawful consent, upon which a jury properly instructed

could convict the appellant.

Accordingly, I would allow the appeal, quash the conviction and order a new trial.

Appeal allowed; new trial ordered.

[ScanLII Collection]

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