R. v. Chang (A.), (2003) 170 O.A.C. 37 (CA)

• Judge: O'Connor, A.C.J.O., Cronk and Armstrong, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 17, 2002
• Jurisdiction: Ontario
• Citations: (2003), 170 O.A.C. 37 (CA);2003 CanLII 29135 (ON CA);173 CCC (3d) 397;9 CR (6th) 304;[2003] CarswellOnt 1007;[2003] OJ No 1076 (QL);170 OAC 37;57 WCB (2d) 19

R. v. Chang (A.) (2003), 170 O.A.C. 37 (CA)

MLB headnote and full text

Temp. Cite: [2003] O.A.C. TBEd. MR.087

Her Majesty the Queen (respondent) v. Aldo Chang and George Kullman (appellants) and Attorney General for Ontario (intervener)

(C31682; C31401)

Indexed As: R. v. Chang (A.) and Kullman (G.)

Ontario Court of Appeal

O'Connor, A.C.J.O., Cronk  and Armstrong, JJ.A.

March 28, 2003.

Summary:

Chang was convicted of two counts of conspiracy to assist persons to enter Canada illegally and was sentenced to one year of imprisonment. Kullman was convicted of one count of conspiracy to assist persons to enter Canada illegally and was sentenced to an 18 month conditional sentence. The accused appealed from the convictions, arguing that the trial judge erred in admitting evidence of intercepted communications obtained pursuant to two wiretap authorizations issued in Ontario. Kullman also argued that the trial judge erred in relying on certain hearsay statements of Chang as evidence against Kullman because even if those statements came within the co-conspirators' exception to the hearsay rule, they did not satisfy the necessity and reliability criteria for the admission of hearsay.

The Ontario Court of Appeal dismissed the appeals.

Editor's Note: The trial judge's ruling on the admissibility of the intercepted communications was reported at 62 O.T.C. 81.

Civil Rights - Topic 1373

Security of the person - Police surveillance - Interception of private communications - The accused appealed their convictions for conspiracy to assist persons to enter Canada illegally - They argued that the trial judge erred in admitting evidence of intercepted communications obtained pursuant to two wiretap authorizations issued in Ontario - The application for the first authorization had been supported by communications that had been intercepted pursuant to a wiretap authorization issued in Quebec - The accused submitted that the trial judge erred in ruling that the continued use of the unexpired portion of the Quebec authorization once the Quebec investigation was complete did not violate the minimization requirement in s. 8 of the Charter - The Ontario Court of Appeal found no basis to interfere with the trial judge's finding that the Quebec investigation was multi-faceted and was not completed - The court held that there was no breach of s. 8 and that even if it had found a breach it would have admitted the impugned evidence - The Quebec authorization and its supporting affidavit were fully disclosed to the judges who granted the Ontario authorizations and the police had acted in good faith in the belief that the wiretaps they executed were obtained pursuant to valid authorizations - See paragraphs 45 to 48.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1373 ].

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - R. v. Starr (S.C.C.) established that the principled approach to the admission of hearsay evidence took precedence over the traditional exceptions to the hearsay rule and that the traditional exceptions had to be re-evaluated and were to be maintained only if they could be justified on the basis of the governing principles of necessity and reliability - The Ontario Court of Appeal held that the co-conspirators' exception to the hearsay rule, the current approach to which was established in R. v. Carter (S.C.C.), had to be re-evaluated in light of the principled approach - The court concluded that there was a presumption that co-conspirators' declarations that made it through the Carter process met the requirements of necessity (at least for unavailable declarants) and reliability - The court did not decide whether the necessity requirement was met when the declarant was available - The court concluded that the co-conspirators' exception should be maintained, at least for unavailable declarants - See paragraphs 49 to 133.

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - Kullman and Chang appealed their convictions for conspiracy to assist persons to enter Canada illegally - Kullman argued that the trial judge erred in relying on certain hearsay statements of Chang as evidence against Kullman because even if those statements came within the co-conspirators' exception to the hearsay rule, the trial judge did not weigh them against the criteria of necessity and reliability - The Ontario Court of Appeal rejected the argument - There was a presumption that co-conspirators' declarations that made it through the process in R. v. Carter (S.C.C.) met the requirements of necessity and reliability - There was nothing in the evidence to rebut the presumption and this was not a case where the trial judge would have been required to hold a voir dire to canvass the issues of necessity and reliability - See paragraphs 134 to 143.

Criminal Law - Topic 5273.1

Evidence and witnesses - Interception of private communications - Minimization - [See Civil Rights - Topic 1373 ].

Criminal Law - Topic 5279

Evidence and witnesses - Interception of private communications - Foreign interceptions - The RCMP wiretapped telephones in Ontario pursuant to a wiretap authorization issued in Quebec, without obtaining a confirmation order from an Ontario judge - The accused argued that the combined effect of ss. 188.1 and 487.02 of the Criminal Code should have prevented the police from implementing the Quebec authorization in Ontario until an Ontario judge had confirmed the Quebec judge's order - The Ontario Court of Appeal affirmed that the language of s. 188.1(2) in respect of confirmation orders was permissive, not mandatory - See paragraphs 43 to 44.

Criminal Law - Topic 5283

Evidence and witnesses - Interception of private communications - Authority for - Judicial review of - General - The accused appealed their convictions for conspiracy to assist persons to enter Canada illegally - They argued that the trial judge erred in admitting evidence obtained pursuant to two wiretap authorizations issued in Ontario - The application for the first authorization had been supported by information obtained from a wiretap authorization issued in Quebec - The accused argued that the Quebec authorization was not lawful and that the trial judge should have determined whether there was sufficient evidence before the Quebec judge to establish that the statutory prerequisites to the issuance of the authorization had been made out - The Ontario Court of Appeal held that the trial judge properly concluded that once an Ontario judge was satisfied that the Quebec judge had jurisdiction to make the order, and that the steps taken to execute it were lawful, that was the end of the Ontario court's inquiry - The accused did not have standing to challenge the sufficiency of the evidence upon which the Quebec judge made his order - See paragraphs 32 to 40.

Criminal Law - Topic 5283

Evidence and witnesses - Interception of private communications - Authority for - Judicial review of - General - The accused appealed their convictions for conspiracy to assist persons to enter Canada illegally - They argued that the trial judge erred in admitting evidence obtained pursuant to two wiretap authorizations issued in Ontario - The application for the first authorization had been supported by information obtained from a wiretap authorization issued in Quebec - The accused argued that the Quebec authorization was not lawful and that the trial judge should have determined whether there was sufficient evidence before the Quebec judge to establish that the statutory prerequisites to the issuance of the authorization had been made out - The Ontario Court of Appeal held that in these circumstances, where there was no evidence of a direct breach of a party's Charter rights under the Quebec authorization, the Ontario court should not review the sufficiency of the evidence giving rise to that authorization - Further, in these circumstances, for an Ontario superior court judge to review the sufficiency of the evidence underlying the authorization of another province's superior court would offend the general rule that a court order was immune from collateral attack - See paragraph 41.

Criminal Law - Topic 5283.2

Evidence and witnesses - Interception of private communications - Authority for - Judicial review - Standing to apply - [See first Criminal Law - Topic 5283 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - [See both Criminal Law - Topic 2682 ].

Practice - Topic 5408.1

Judgments and orders - Collateral attack - [See second Criminal Law - Topic 5283 ].

Cases Noticed:

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161; 60 C.C.C.(3d) 161; 80 C.R.(3d) 317; 50 C.R.R. 206, refd to. [para. 33].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104; [1993] 8 W.W.R. 287; 12 Alta. L.R.(3d) 305; 84 C.C.C.(3d) 203; 24 C.R.(4th) 47; 17 C.R.R.(2d) 297, refd to. [para. 35].

R. v. Wiley (R.W.), [1993] 3 S.C.R. 263; 158 N.R. 321; 34 B.C.A.C. 135; 56 W.A.C. 135; 84 C.C.C.(3d) 161; 24 C.R.(4th) 34; 17 C.R.R.(2d) 314, refd to. [para. 35].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1; 84 C.C.C.(3d) 173, refd to. [para. 35].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321; 104 C.C.C.(3d) 136; 45 C.R.(4th) 307; 132 D.L.R.(4th) 31; 33 C.R.R.(2d) 226, refd to. [para. 36].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142; 67 C.C.C.(2d) 568; 137 D.L.R.(3d) 385, consd. [para. 50].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 147 C.C.C.(3d) 449; 190 D.L.R.(4th) 591, consd. [para. 51].

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271; 38 C.C.C.(3d) 193; 61 C.R.(3d) 305; 45 D.L.R.(4th) 487, refd to. [para. 53].

R. v. Blake and Tye (1844), 6 Q.B. 126, refd to. [para. 55].

R. v. Connolly and McGreevy (1894), 1 C.C.C. 468 (Ont. H.C.), refd to. [para. 55].

R. v. Baker and Sowash, [1926] S.C.R. 92, refd to. [para. 55].

R. v. Savard and Lizotte, [1946] S.C.R. 20, refd to. [para. 56].

Ford v. Elliot (1849), 4 Ex. 77; 154 E.R. 1132, refd to. [para. 57].

R. v. Paradis, [1934] S.C.R. 165, refd to. [para. 57].

R. v. Koufis, [1941] S.C.R. 481, refd to. [para. 57].

R. v. Banning, [1947] O.R. 362 (C.A.), refd to. [para. 57].

R. v. Bird, [1969] 1 O.R. 268 (C.A.), refd to. [para. 57].

R. v. Sutton (K.M.), [2000] 2 S.C.R. 595; 262 N.R. 384; 230 N.B.R.(2d) 205; 593 A.P.R. 205; 148 C.C.C.(3d) 513; 38 C.R.(5th) 39; 192 D.L.R.(4th) 411, refd to. [para. 61].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92; 79 C.R.(3d) 1, refd to. [para. 63].

Ares v. Venner, [1970] S.C.R. 608, refd to. [para. 64].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257; 15 C.R.(4th) 133; 94 D.L.R.(4th) 590, refd to. [para. 65].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257; 19 C.R.(4th) 1, refd to. [para. 66].

R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81; 108 D.L.R.(4th) 32; 13 Alta. L.R.(3d) 1; 85 C.C.C.(3d) 97; 25 C.R.(4th) 46, refd to. [para. 83].

R. v. Agawa and Mallet (1975), 11 O.R.(2d) 176 (C.A.), refd to. [para. 104].

R. v. Demeter, [1978] 1 S.C.R. 538; 16 N.R. 46, refd to. [para. 104].

R. v. O'Brien, [1978] 1 S.C.R. 591; 16 N.R. 271; 35 C.C.C.(2d) 209, refd to. [para. 104].

R. v. F.J.U., [1995] 3 S.C.R. 764; 186 N.R. 365; 85 O.A.C. 321; 42 C.R.(4th) 133; 101 C.C.C.(3d) 97; 128 D.L.R.(4th) 121; 42 C.R.(4th) 133, refd to. [para. 119].

R. v. Pilarinos (2002), 2 C.R.(6th) 273 (B.C.S.C.), refd to. [para. 123].

R. v. Keen, [1999] E.W.J. No. 5578 (C.A.), refd to. [para. 123].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 188.1 [para. 43].

Authors and Works Noticed:

Sopinka, J., Lederman, S.N., and Bryant, A.W., The Law of Evidence in Canada (2nd Ed. 1999), p. 298 ff [para. 55].

Counsel:

Gregory Lafontaine, for the appellant, Chang;

Philip Campbell, for the appellant, Kullman;

R.W. Hubbard and Moiz Rahman, for the respondent;

J. Klukach and S. Magotiaux, for the intervener.

This appeal was heard on September 17, 2002, before O'Connor, A.C.J.O., and Cronk and Armstrong, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by O'Connor, A.C.J.O., and Armstrong, J.A., and was released on March 28, 2003.