R. v. Ertel, (1987) 20 O.A.C. 257 (CA)

• Judge: Dubin, Lacourcière and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 03, 1987
• Jurisdiction: Ontario
• Citations: (1987), 20 O.A.C. 257 (CA);1987 CanLII 183 (ON CA);35 CCC (3d) 398;58 CR (3d) 252;20 OAC 257;30 CRR 209

R. v. Ertel (1987), 20 O.A.C. 257 (CA)

MLB headnote and full text

Her Majesty the Queen v. Joseph Ertel

Indexed As: R. v. Ertel

Ontario Court of Appeal

Dubin, Lacourcière and Blair, JJ.A.

June 3, 1987.

Summary:

The accused was convicted of conspiracy to traffic in a narcotic contrary to s. 423(1)(d) of the Criminal Code. The accused appealed on the grounds: (1) that there was no corroboration of the accomplice evidence, (2) the indictment preferred against him by the Attorney General under s. 507(3) of the Criminal Code violated ss. 7, 9 and 15 of the Canadian Charter of Rights and Freedoms, (3) that he was denied access to wiretap authorizations, thus depriving him of a fair trial, and (4) that his conviction for trafficking was inconsistent with a simultaneous acquittal on a conspiracy to import charge.

The Ontario Court of Appeal dismissed the appeal on all grounds and upheld the accused's trafficking conviction.

Civil Rights - Topic 3132

Trials, due process, fundamental justice and fair hearings - Criminal proceedings - Preferring indictment - The Criminal Code, R.S.C. 1970, c. C-34, s. 507(3), provided that the Attorney General could prefer an indictment against an accused who was discharged following a preliminary inquiry - The Ontario Court of Appeal held that the decision by the Attorney General to exercise his discretion under s. 507(3) does not per se result in a deprivation of fundamental justice contrary to s. 7 of the Canadian Charter of Rights and Freedoms, unless recourse to s. 507(3) has the effect of denying or infringing a constitutionally protected right - See paragraphs 43 to 51.

Civil Rights - Topic 3603

Detention - Arbitrary detention - What constitutes - Preferring indictment - The Criminal Code, R.S.C. 1970, c. C-34, s. 507(3), provided, that the Attorney General could prefer an indictment against an accused who was discharged following a preliminary inquiry - The Ontario Court of Appeal held that such a preferred indictment does not create an arbitrary detention within the meaning of s. 9 of the Canadian Charter of Rights and Freedoms - See paragraphs 39 to 42.

Civil Rights - Topic 5502

Equality and protection of the law - Whether right to equality abridged - Test for - The Ontario Court of Appeal utilized a step by step analysis suggested by recent case law to determine whether legislation was discriminatory such as to violate s. 15 of the Canadian Charter of Rights and Freedoms - See paragraphs 59 to 81.

Civil Rights - Topic 5653

Equality and protection of the law - Particular cases - Preferring indictments - The Criminal Code, R.S.C. 1970, c. C-34, s. 507(3), provided that the Attorney General could prefer an indictment against an accused who was discharged following a preliminary inquiry - The Ontario Court of Appeal held that s. 507(3) is not discriminatory within the meaning of s. 15 of the Canadian Charter of Rights and Freedoms - See paragraphs 52 to 81.

Civil Rights - Topic 8402

Canadian Charter of Rights and Freedoms - Criminal proceedings - Preferring indictments - The Criminal Code, R.S.C. 1970, c. C-34, s. 507(3), provided that the Attorney General could prefer an indictment against an accused who was discharged following a preliminary inquiry - The Ontario Court of Appeal held that s. 507(3) was not contrary to s. 7 of the Charter (principles of fundamental justice), s. 9 (arbitrary detention), or s. 15 (equality section) - See paragraphs 34 to 81.

Criminal Law - Topic 4262

Procedure - Indictments - Preferring of - [See Civil Rights - Topic 8402 above].

Criminal Law - Topic 4438

Procedure - Verdicts - Inconsistent verdicts - An accused was charged with conspiracy to import a narcotic and with conspiracy to traffic in a narcotic - He was acquitted of conspiracy to import but convicted of conspiracy to traffic - He argued that the verdicts were inconsistent - The Ontario Court of Appeal rejected his argument stating that there was no inconsistent finding of facts which forms the basis of inconsistent verdicts, but rather the accused was acquitted on the basis of an error of law - The court stated further that even if the verdicts were inconsistent, the conviction on the trafficking charge should not be quashed unless it gave rise to a miscarriage of justice - See paragraphs 89 to 94.

Criminal Law - Topic 5275

Evidence and witnesses - Interception of private communications - Application for - Confidentiality of supporting material - Sealed packets - An accused charged with conspiracy to traffic in a narcotic was denied access to the sealed packet respecting a wiretap - He argued that without access he was unable to prove a violation of s. 8 of the Charter (unreasonable search and seizure), which deprived him of the right to make full answer and defence - The Ontario Court of Appeal rejected the accused's argument, where the denial of access did not prevent the accused from making full answer and defence - See paragraphs 82 to 88.

Criminal Law - Topic 5505

Evidence and witnesses - Evidence of accomplices - General principles - The accused was convicted by judge alone of conspiracy to traffic in a narcotic - The trial judge adopted the evidence of accomplices in making the conviction - The accused appealed, arguing that it was dangerous to convict in the absence of corroboration - The Ontario Court of Appeal dismissed the appeal, holding that the trial judge had properly applied R. v. Vetrovec, 41 N.R. 606 (S.C.C.), which abolished the rule of law that accomplice evidence requires corroboration leaving it up to the judge to decide whether to direct himself or the jury with respect to the trustworthiness of the witnesses - See paragraphs 28 to 33.

Cases Noticed:

R. v. Vetrovec (1982), 41 N.R. 606; 67 C.C.C.(2d) 1 (S.C.C.), consd. [paras. 28, 31, 32].

R. v. Baskerville, [1916] K.B. 658, refd to. [para. 31].

R. v. Riley (1978), 42 C.C.C.(2d) 437 (Ont. C.A.), refd to. [para. 32].

R. v. Harrigan and Graham (1975), 33 C.R.N.S. 60 (Ont. C.A.), refd to. [para. 37].

Re Criminal Code (1910), 16 C.C.C. 459, refd to. [para. 37].

R. v. Morgentaler (No. 1) (1973), 14 C.C.C.(2d) 435, refd to. [para. 38].

R. v. Arviv (1985), 8 O.A.C. 92; 19 C.C.C.(3d) 395, folld. [paras. 45 to 49].

Operation Dismantle Inc. et al. v. Canada, [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 48].

R. v. Smythe (1971), 3 C.C.C.(2d) 366 (S.C.C.), refd to. [para. 48].

R. v. Moore (1986), 39 Man.R.(2d) 315; 26 C.C.C.(3d) 474 (C.A.), refd to. [para. 49].

R. v. Morgentaler (1975), 4 N.R. 277; 20 C.C.C.(2d) 449 (S.C.C.), consd. [para. 56].

R. v. MacKay (1980), 33 N.R. 1; 54 C.C.C.(2d) 129 (S.C.C.), consd. [para. 57].

R. v. Hamilton et al. (1986), 17 O.A.C. 241; 57 O.R.(2d) 412, refd to. [para. 58].

R. v. R.L. (1986), 14 O.A.C. 318; 28 C.C.C.(3d) 417, refd to. [para. 60].

Aluminum Company of Canada Ltd. v. Ontario (Minister of the Environment) (1986), 16 O.A.C. 14; 55 O.R.(2d) 522, consd. [para. 61].

State v. Clark (1981), 630 F.2d 810, consd. [para. 62].

R. v. Ramos - see R. v. Century 21 Ramos Realty Inc. and Ramos.

R. v. Century 21 Ramos Realty Inc. and Ramos, 19 O.A.C. 25, consd. [para. 63].

R. v. McDonald (1985), 10 O.A.C. 321; 21 C.C.C.(3d) 330, consd. [para. 64].

Bregman and Bregman v. Canada (Attorney General), 18 O.A.C. 82, refd to. [para. 65].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321, refd to. [para. 71].

R. v. Wilson (1983), 51 N.R. 321; 9 C.C.C.(3d) 97, refd to. [para. 82].

R. v. Finlay and Grellette (1985), 11 O.A.C. 279; 23 C.C.C.(3d) 48, consd. [para. 85].

R. v. McNamara (No. 1) (1981), 56 C.C.C.(2d) 193, refd to. [para. 90].

R. v. McLaughlin (1974), 15 C.C.C.(2d) 562, refd to. [para. 91].

Koury v. R., [1964] 2 C.C.C. 97, folld. [para. 93].

Statutes Noticed:

Canadian Bill of Rights, R.S.C. 1970, App. III, sect. 1(b) [para. 55].

Canadian Charter of Rights and Freedoms, sect. 7 [paras. 43 to 51]; sect. 9 [paras. 39 to 42]; sect. 15 [paras. 52 to 81].

Criminal Code, S.C. 1892, c. 29, sect. 641 [para. 37].

Criminal Code, R.S.C. 1927, c. 36, sect. 873(5) [para. 37].

Criminal Code, R.S.C. 1970, c. C-34, sect. 475(1)(a) [para. 40]; sect. 507(3) [paras. 34 to 81].

Criminal Law Amendment Act, S.C. 1968-69, c. 38 [para. 38].

Criminal Law Amendment Act 1985, S.C. 1985, c. 19, sect. 115 [paras. 34 to 81].

Authors and Works Noticed:

Del Buono (Ed.), Criminal Procedure in Canada (1982), p. 323 [para. 75].

Hawkins, Pleas of the Crown (8th Ed. 1824) [para. 37].

Counsel:

Clayton C. Ruby, for Ertel;

B.R. Shilton and B.J. Wilton, for the Attorney General of Canada;

W.J. Blacklock, for the Attorney General of Ontario.

This appeal was heard on December 15 and 16, 1986, before Dubin, Lacourcière and Blair, JJ.A., of the Ontario Court of Appeal. The following decision of the Ontario Court of Appeal was delivered by Lacourcière, J.A., and released on June 3, 1987: