R. v. Garofoli et al., (1990) 116 N.R. 241 (SCC)

• Judge: Dickson, C.J.C., Lamer, C.J.C.*, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and McLachlin, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 22, 1990
• Jurisdiction: Canada (Federal)
• Citations: (1990), 116 N.R. 241 (SCC);[1990] 2 SCR 1421;1990 CanLII 52 (SCC);60 CCC (3d) 161;80 CR (3d) 317;116 NR 241;[1990] CarswellOnt 119;JE 90-1684;[1990] SCJ No 115 (QL);11 WCB (2d) 342;[1990] ACS no 115;36 QAC 161;43 OAC 1;50 CRR 206

R. v. Garofoli (1990), 116 N.R. 241 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Jean-Claude Garofoli (appellant) v. Her Majesty The Queen (respondent)

(21099)

Indexed As: R. v. Garofoli et al.

Supreme Court of Canada

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

November 22, 1990.

Summary:

Garofoli was convicted of conspiring to import cocaine primarily on the basis of evidence obtained through intercepted private communications. Garofoli appealed raising numerous issues respecting the opening of the sealed packet.

The Ontario Court of Appeal, in a decision reported 27 O.A.C. 1, dismissed the appeal. Garofoli appealed again.

The Supreme Court of Canada, McLachlin and L'Heureux-Dubé, JJ., dissenting, allowed the appeal, quashed the conviction and ordered a new trial on the ground that Garofoli ought to have been permitted to cross-examine the affiants on the affidavits filed in support of the wiretap authorizations. The court rejected several other grounds of appeal.

*Editor's Note: This decision is one of four cases released concurrently by the court dealing with wiretap issues. For completeness, all four cases will be reported together in the National Reporter, the Quebec Appeal Cases and the Ontario Appeal Cases. Also note that Dickson, C.J.C., was the Chief Justice at the time of hearing, and Lamer, C.J.C., was Chief Justice at the time of judgment.

Civil Rights - Topic 1373

Security of the person - Police surveillance - Interception of private communications - The Supreme Court of Canada stated that the Charter provides a clear alternative basis (as opposed to a 'Wilson' application) for resort to the court to challenge a wiretap authorization and with it the appropriate grounds for a determination as to whether there has been a breach of s. 8 of the Charter - See paragraph 48.

Civil Rights - Topic 1373

Security of the person - Police surveillance - Interception of private communications - The Supreme Court of Canada discussed the power of a judge on an application to determine when a wiretap authorization is contrary to s. 8 of the Charter - See paragraphs 52 to 56.

Civil Rights - Topic 1373

Security of the person - Police surveillance - Interception of private communications - The Supreme Court of Canada stated that on an application to determine whether a wiretap authorization is contrary to s. 8 of the Charter, the judge should not review the authorization de novo - See paragraph 55.

Civil Rights - Topic 1373

Security of the person - Police surveillance - Interception of private communications - The Supreme Court of Canada stated that on an application to determine whether a wiretap authorization is contrary to s. 8 of the Charter "the reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, nondisclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge." - See paragraph 56.

Droits et Libertés - Cote 1373

Sécurité - Surveillance policière - Interception de communications privées - [voir Civil Rights - Topic 1373].

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - An accused was charged with conspiracy to import cocaine - The evidence consisted primarily of intercepted private communications - The Ontario Court of Appeal opened the sealed packets and released edited affidavits to the accused - The Supreme Court of Canada held that the appeal court was right to open the packets because an accused is entitled to have the packets opened, and, subject to editing, to have its contents produced in order to make full answer and defence - See paragraph 31.

Droits et Libertés - Cote 3133

Proces - Application reguliere de la loi, justice fondamentale et audiences equitables - Affaires criminelles et quasi-criminelles - Droit de l'accusé de présenter une réponse et une défence complètes - [voir Civil Rights - Topic 3133].

Civil Rights - Topic 8368

Charter - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada stated that "a finding that the interception [wiretap] is unlawful attracts the peremptory language of s. 178.16 [of the Criminal Code] and the evidence is inadmissible. Section 24(2) [of the Charter] cannot have the effect of making the evidence admissible even if to do so would not bring the administration of justice into disrepute. Section 24(2) is an exclusionary and not an inclusionary rule. It operates to exclude evidence that would otherwise be admissible where to admit the evidence would bring the administration of justice into disrepute. Evidence that is inadmissible by reason of some other exclusionary rule cannot be admitted by invoking s. 24(2)." - See paragraph 60.

Civil Rights - Topic 8368

Charter - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada stated that "an accused who has invoked the jurisdiction of s. 24 [of the Charter] and who establishes as part of the necessary operation of Charter review that an interception [wiretap] was unlawfully obtained is entitled to have benefit of the provisions of s. 178.16 [of the Criminal Code] to have the evidence excluded." - See paragraph 60.

Droits et Libertés - Cote 8368

Charte canadienne des droits et libertés - Négation des droits - Recours - Exclusion de la preuve - [voir Civil Rights - Topic 8368].

Criminal Law - Topic 4354

Procedure - Jury charge - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - At a conspiracy trial two co-conspirators testified for the Crown - The Ontario Court of Appeal reviewed a judge's jury charge respecting the evidence of the co-conspirators and held that the jury was properly cautioned - The Supreme Court of Canada affirmed the decision of the Court of Appeal - See paragraphs 100, 155.

Droit Criminel - Cote 4354

Procedure - Exposé au jury - Instructions concernant les plaidoyers ou la preuve des témoins, des coaccusés ou des complices - [voir Criminal Law - Topic 4354].

Criminal Law - Topic 4487

Procedure - Trial - Attendance of accused - Absconding accused - Burden of proof - At a conspiracy trial the trial judge ruled that one of the accused had absconded and proceeded with the trial in the accused's absence pursuant to s. 431.1 of the Criminal Code - The Ontario Court of Appeal reviewed the trial judge's ruling and held that there was evidence before him to warrant him being satisfied beyond reasonable doubt that the accused had absconded - The Supreme Court of Canada affirmed the decision - See paragraphs 99, 155.

Droit Criminel - Cote 4487

Procedure - Procès - Présence du prévenu - [voir Criminal Law - Topic 4487].

Criminal Law - Topic 5273.1

Evidence and witnesses - Interception of private communications - Minimization - Under a wiretap authorization police intercepted 1,000 calls, 49 of which were considered relevant - The accused argued that the failure to impose conditions minimizing the interceptions of irrelevant communications was unreasonable and rendered the authorization invalid - The Supreme Court of Canada rejected the accused's argument, holding that the absence of minimizing conditions did not render the authorization unreasonable, there being no special considerations calling for a minimization clause - See paragraphs 91 to 98, 155.

Criminal Law - Topic 5273.1

Evidence and witnesses - Interception of private communications - Minimization - Live monitoring - The Supreme Court of Canada stated that "an absolute requirement of live monitoring in all cases would impose too heavy a burden on Canadian law enforcement officials. ... While a requirement of live monitoring or visual confirmation would generally be appropriate when telephone calls are proposed to be intercepted at public pay telephones, the same considerations do not apply with respect to the private residence of a person named in an authorization unless there are special circumstances calling for live monitoring. It must be remembered that constant live monitoring of a private residence can also constitute a serious invasion of privacy." - See paragraph 96.

Droit Criminel - Cote 5273.1

Preuve et témoins - Interception de communications privées - Minimisation - [voir Criminal Law - Topic 5273.1].

Criminal Law - Topic 5274

Evidence and witnesses - Interception of private communications - Application for - Evidence - The Supreme Court of Canada stated that prior to issuing a wiretap authorization, the judge must be satisfied on the basis of affidavit evidence that the statutory requirements of s. 178.13(1)(a) (which are identical to the minimum constitutional requirements demanded by s. 8 of the Charter) have been met - See paragraphs 32 to 36.

Droit Criminel - Cote 5274

Preuve et témoins - Interception de communications privées - Demande d'interception - Preuve - [voir Criminal Law - Topic 5274].

Criminal Law - Topic 5274.1

Evidence and witnesses - Interception of private communications - Application for - Where application based on informant's statements - The Supreme Court of Canada stated that an authorizing judge must be satisfied that the statutory conditions have been met prior to issuing a wiretap authorization - The reviewing judge should not set aside this decision unless he is satisfied on the whole of the material presented that there was no basis for the authorization - The court thereafter discussed the application of these general rules where the authorization was based on the information of informants - See paragraphs 61 to 68.

Criminal Law - Topic 5274.1

Evidence and witnesses - Interception of private communications - Application for - Where application based on informant's statements - The Supreme Court of Canada stated that hearsay statements of an informant can provide reasonable and probable grounds to justify a search, but a tip from an informer, by itself, is insufficient - The test for reliability of the tip is the "totality of circumstances" test (i.e. the court must look at a variety of factors including, the degree of detail of the tip, the informer's source of knowledge and the indicia of the informer's reliability) - Further the results of the search cannot ex post facto provide evidence of the reliability of the information - These principles also apply to an authorization for electronic surveillance - See paragraph 68.

Droit Criminel - Cote 5274.1

Preuve et témoins - Interception de communications privées - Demande d'interception - Demande fondée sur des déclarations d'informateurs - [voir Criminal Law - Topic

5274.1].

Criminal Law - Topic 5275

Evidence and witnesses - Interception of private communications - Application for - Confidentiality of supporting material - Sealed packet - An accused was charged with conspiracy to import cocaine - The evidence consisted primarily of intercepted private communications - The Ontario Court of Appeal opened the sealed packets and released edited affidavits to the accused - The Supreme Court of Canada held that the appeal court was right to open the packets because an accused is entitled to have the packet opened, and, subject to editing, to have its contents produced in order to make full answer and defence - See paragraph 31.

Criminal Law - Topic 5275

Evidence and witnesses - Interception of private communications - Application for - Confidentiality of supporting material - Application to open sealed packet - Jurisdiction - The Supreme Court of Canada stated that under s. 178.14(1)(a)(ii) of the Criminal Code applications to open the sealed packet must be made to the judge designated therein - However, applications for review of the contents should be made to the trial judge - See paragraphs 49, 51.

Criminal Law - Topic 5275

Evidence and witnesses - Interception of private communications - Application for - Confidentiality of supporting material - Affidavits - Cross-examination - The Ontario Court of Appeal denied an accused's application to cross-examine the affiant who swore an affidavit in support of a wiretap authorization, where the accused failed to show that the affiant had knowingly and intentionally or with reckless disregard for the truth made a false statement in his affidavit - The Supreme Court of Canada held that the accused was entitled to cross-examine and ordered a new trial - The court discussed the principles applicable to determine when cross-examination is allowed - See paragraphs 81 to 90.

Criminal Law - Topic 5275

Evidence and witnesses - Interception of private communications - Application for - Confidentiality of supporting material - Opening sealed packet - Judicial editing - The Supreme Court of Canada stated that editing of the contents of the sealed packet is essential in cases in which confidential information is included in the affidavit filed in support of the authorization - The court stated that in determining what to edit judges must have regard for the rule against disclosure of police informants - The court thereafter discussed the extent of editing allowed and the procedure to be followed - See paragraphs 70 to 80.

Criminal Law - Topic 5275

Evidence and witnesses - Interception of private communications - Application for - Confidentiality of supporting material - Affidavits - Cross-examination - The Supreme Court of Canada set out the rights of an accused to cross-examine on an affidavit filed in support of a wiretap authorization - See paragraphs 81 to 90.

Droit Criminel - Cote 5275

Preuve et témoins - Interception de communications privées - Demande d'interception - Caractère confidential des documents à l'appui - [voir Criminal Law - Topic 5275].

Criminal Law - Topic 5283

Evidence and witnesses - Authority for - Judicial review - General - The Supreme Court of Canada stated that the Charter provides a clear alternative basis (as opposed to a 'Wilson' application) for resort to the court to challenge a wiretap authorization and with it the appropriate grounds for a determination as to whether there has been a breach of s. 8 of the Charter - See paragraph 48.

Criminal Law - Topic 5283

Evidence and witnesses - Interception of private communications - Authority for - Judicial review - General - The Supreme Court of Canada discussed the procedures available for challenging a wiretap authorization - The court discussed the grounds upon which a challenge may be based, in what court to proceed and which procedures can be combined - See paragraphs 37 to 50.

Droit Criminel - Cote 5283

Preuve et témoins - Interception de communications privées - Autorisation d'interception - Contrôle judiciaire - [voir Criminal Law - Topic 5283].

Criminal Law - Topic 5283.1

Evidence and witnesses - Interception of private communications - Authority for - Judicial review - Jurisdiction - The Supreme Court of Canada stated that "an objection to the reception of evidence is very much a necessary incident of the trial process. A trial judge before whom wiretap evidence is tendered is obliged to rule on an objection based on an alleged breach of the accused's constitutional rights. He or she has jurisdiction and it cannot be declined." - See paragraph 47.

Criminal Law - Topic 5283.1

Evidence and witnesses - Interception of private communications - Authority for - Judicial review - Jurisdiction - The Supreme Court of Canada discussed the procedures available for challenging a wiretap authorization - The court discussed the grounds upon which a challenge may be based, in what court to proceed, and which procedures could be combined - See paragraphs 37 to 50.

Criminal Law - Topic 5283.1

Evidence and witnesses - Interception of private communications - Authority for - Judicial review - Jurisdiction - The Supreme Court of Canada stated that "when it is asserted by an accused that a wiretap infringes s. 8 [of the Charter], an appropriate review is incompatible with the restrictions of R. v. Wilson, [51 N.R. 321]. The judge conducting the review must hear evidence and submissions as to whether the interception constitutes an unreasonable search and seizure. Inasmuch as it is an issue as to the admissibility of evidence, it may be raised at trial. Under s. 24 of the Charter, the trial judge is a court of competent jurisdiction." - See paragraph 46.

Criminal Law - Topic 5283.1

Evidence and witnesses - Interception of private communications - Authority for - Judicial review - Jurisdiction - The Supreme Court of Canada stated that under s. 178.14(1)(a)(ii) of the Criminal Code applications to open the sealed packet must be made to the judge designated therein - However, applications for review of the contents should be made to the trial judge - See paragraphs 49, 51.

Droit Criminel - Cote 5283.1

Preuve et témoins - Interception de communications privées - Autorisation d'interception - Contrôle judiciaire - Juridiction - [voir Criminal Law - Topic 5283.1].

Criminal Law - Topic 5283.4

Evidence and witnesses - Interception of private communications - Authority for - Judicial review - Where Charter breach alleged - The Supreme Court of Canada stated that "when it is asserted by an accused that a wiretap infringes s. 8 [of the Charter], an appropriate review is incompatible with the restrictions of R. v. Wilson [51 N.R. 321]. The judge conducting the review must hear evidence and submissions as to whether the interception constitutes an unreasonable search and seizure. Inasmuch as it is an issue as to the admissibility of evidence, it may be raised at trial. Under s. 24 of the Charter, the trial judge is a court of competent jurisdiction." - See paragraph 46.

Criminal Law - Topic 5283.4

Evidence and witnesses - Interception of private communications - Authority for - Judicial review - Where Charter breach alleged - The Supreme Court of Canada discussed the power of a judge of an application to determine when a wiretap authorization is contrary to s. 8 of the Charter - See paragraphs 51 to 56.

Criminal Law - Topic 5283.4

Evidence and witnesses - Interception of private communications - Authority for - Judicial review - Where Charter breach alleged - The Supreme Court of Canada stated that on an application to determine whether a wiretap authorization is contrary to s. 8 of the Charter the judge should not review the authorization de novo - See paragraph 55.

Criminal Law - Topic 5283.4

Evidence and witnesses - Interception of private communications - Authority for - Judicial review - Where Charter breach alleged - The Supreme Court of Canada stated that on an application to determine whether a wiretap authorization is contrary to s. 8 of the Charter "the reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, nondisclosure, misleading evidence and new evidence are all relevant, but rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge." - See paragraph 56.

Droit Criminel - Cote 5283.4

Preuve et témoins - Interception de communications privées - Autorisation d'interception - Contrôle judiciaire - Allégation d'atteinte à un droit garanti par la Charte - [voir Criminal Law - Topic 5283.4].

Criminal Law - Topic 5297

Evidence and witnesses - Inadmissible private communications - Admissible interceptions - "Lawfully made" - The Supreme Court of Canada stated that "a finding that the interception [wiretap] is unlawful attracts the peremptory language of s. 178.16 [of the Criminal Code] and the evidence is inadmissible. Section 24(2) [of the Charter] cannot have the effect of making the evidence admissible even if to do so would not bring the administration of justice into disrepute. Section 24(2) is an exclusionary and not an inclusionary rule. It operates to exclude evidence that would otherwise be admissible where to admit the evidence would bring the administration of justice into disrepute. Evidence that is inadmissible by reason of some other exclusionary rule cannot be admitted by invoking s. 24(2)." - See paragraph 60.

Criminal Law - Topic 5297

Evidence and witnesses - Inadmissible private communications - Admissible interceptions - "Lawfully made" - The Supreme Court of Canada stated that "an accused who has invoked the jurisdiction of s. 24 [of the Charter] and who establishes as part of the necessary operation of the Charter review that an interception [wiretap] was unlawfully obtained is entitled to the benefit of the provisions of s. 178.16 [of the Criminal Code] to have the evidence excluded." - See paragraph 60.

Droit Criminel - Cote 5297

Preuve et témoins - Irrecevabilité des communications privées - Interceptions admissibles - "Légalement fait" - [voir Criminal Law - Topic 5297].

Criminal Law - Topic 5302

Evidence and witnesses - Inadmissible private communications - Inadmissible interceptions - Unlawful and unreasonable - The Supreme Court of Canada stated that "a finding that the interception [wiretap] is unlawful attracts the peremptory language of s. 178.16 [of the Criminal Code] and the evidence is inadmissible. Section 24(2) [of the Charter] cannot have the effect of making the evidence admissible even if to do so would not bring the administration of justice into disrepute. Section 24(2) is an exclusionary and not an inclusionary rule. It operates to exclude evidence that would otherwise be admissible where to admit the evidence would bring the administration of justice into disrepute. Evidence that is inadmissible by reason of some other exclusionary rule cannot be admitted by invoking s. 24(2)." - See paragraph 60.

Criminal Law - Topic 5302

Evidence and witnesses - Inadmissible private communications - Inadmissible interceptions - Unlawful and unreasonable interceptions - The Supreme Court of Canada stated that "an accused who has invoked the jurisdiction of s. 24 [of the Charter] and who establishes as part of the necessary operation of Charter review that an interception [wiretap] was unlawfully obtained is entitled to the benefit of the provisions of s. 178.16 [of the Criminal Code] to have the evidence excluded." - See paragraph 60.

Droit Criminel - Cote 5302

Preuve et témoins - Irrecevabilité des communications privées - Interceptions interdites - Interceptions illégales et déraisonnables - [voir Criminal Law - Topic 5302].

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity of police informers - The Supreme Court of Canada discussed the rule against disclosure of police informers - See paragraphs 73 to 77.

Preuve - Cote 4150

Témoins - Privilège - Sujets de privilège - Identité des indicateurs de police - [voir Evidence - Topic 4150].

Cases Noticed:

R. v. Dersch et al. (1990), 116 N.R. 340, refd to. [paras. 1, 31, 51].

R. v. Lachance (1990), 116 N.R. 325, refd to. [para. 1].

R. v. Zito (1990), 116 N.R. 357, refd to. [para. 1].

R. v. Playford (1987), 24 O.A.C. 161; 40 C.C.C.(3d) 142 (C.A.), refd to. [paras. 11, 83].

R. v. Wilson, [1983] 2 S.C.R. 594; 51 N.R. 321; 26 Man.R.(2d) 155, consd. [para. 13 et seq.].

United States v. Tufaro (1983), 593 F. Supp. 476 (S.D.N.Y.), refd to. [para. 16].

People v. Baris (1986), 500 N.Y.S. 2d 572 (A.D. 4 Dept.), refd to. [para. 16].

Franks v. Delaware (1978), 438 U.S. 154, not folld. [paras. 17, 83, 87, 144, 149].

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C 322, refd to. [paras. 33, 35, 53, 118].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [paras. 33, 53].

R. v. Finlay and Grellette (1985), 11 O.A.C. 279; 23 C.C.C.(3d) 48 (C.A.), refd to. [paras. 34, 83, 96, 108, 118].

R. v. Parsons - see R. v. Charette.

R. v. Charette (1977), 37 C.C.C.(2d) 497 (Ont. C.A.), affd. [1980] 1 S.C.R. 785; 33 N.R. 158, refd to. [paras. 38, 39, 110, 114].

R. v. Chesson, [1988] 2 S.C.R. 148; 87 N.R. 115; 90 A.R. 347, refd to. [paras. 38, 39, 110, 114].

R. v. Meltzer and Laison, [1989] 1 S.C.R. 1764; 96 N.R. 391, refd to. [paras. 45, 46, 117, 124].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 52 C.R.(3d) 1; 26 C.C.C.(3d) 481; 29 D.L.R.(4th) 161, refd to. [paras. 46, 136].

R. v. Bailey (1983), 4 C.C.C.(3d) 21 (Ont. C.A.), refd to. [para. 50].

R. v. Banas and Haverkamp (1982), 65 C.C.C.(2d) 224 (Ont. C.A.), refd to. [para. 50].

R. v. Collins, [1987] 1 S.C.R. 265; [1987] 3 W.W.R. 699; 74 N.R. 276; 33 C.C.C.(3d) 1; 56 C.R.(3d) 193, refd to. [para. 52].

Illinois v. Gates (1983), 462 U.S. 213, refd to. [para. 61].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 64].

R. v. Greffe, [1990] 1 S.C.R. 755; 107 N.R. 1; 107 A.R. 1, refd to. [paras. 65, 66, 68].

R. v. Debot (1986), 17 O.A.C. 141; 30 C.C.C.(3d) 207 (C.A.), refd to. [para. 67].

MacIntyre v. Attorney General of Nova Scotia and Grainger and Attorney General of Canada et al., [1982] 1 S.C.R. 175; 40 N.R. 181; 49 N.S.R.(2d) 609; 96 A.P.R. 609; 65 C.C.C.(2d) 129; 132 D.L.R.(3d) 385, refd to. [paras. 71, 72].

Dersch v. Canada (Attorney General) (1987), 17 B.C.L.R.(2d) 145, refd to. [paras. 73, 135].

Bisaillon v. Keable and Attorney General of Quebec and Attorneys General of Canada, Ontario, New Brunswick and Alberta, [1983] 2 S.C.R. 60; 51 N.R. 81, refd to. [para. 73].

Rideout and Rideout (George) and Associates Ltd. v. R. (1986), 61 Nfld. & P.E.I.R. 160; 185 A.P.R. 160; 31 C.C.C.(3d) 211 (Nfld. S.C.), refd to. [para. 74].

Roviaro v. United States (1957), 353 U.S. 53 (7th Cir.), refd to. [para. 75].

R. v. Chambers (1985), 9 O.A.C. 228; 20 C.C.C.(3d) 440 (C.A.), refd to. [para. 76].

R. v. Parmar (1987), 34 C.C.C.(3d) 260 (Ont. H.C.), refd to. [paras. 78, 79].

R. v. Rowbotham (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [paras. 79, 83].

R. v. Church of Scientology and Zaharia (1987), 18 O.A.C. 321; 31 C.C.C.(3d) 449, refd to. [para. 83].

R. v. Parmar (1987), 37 C.C.C.(3d) 300, refd to. [para. 83].

Innisfil, Township of v. Vespra, Township of; South Simco Estates et al., [1981] 2 S.C.R. 145; 37 N.R. 43, refd to. [para. 85].

R. v. Potvin, [1989] 1 S.C.R. 525; 93 N.R. 42; 21 Q.A.C. 258, refd to. [para. 85].

Gulf Islands Navigation Ltd. v. Seafarers' International Union of North America (Canadian District) (1959), 18 D.L.R.(2d) 625 (B.C.C.A.), refd to. [para. 86].

R. v. Thompson (1990), 114 N.R. 1, appld. [paras. 92, 94, 96].

R. v. Wray, [1971] S.C.R. 272, refd to. [para. 136].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, generally [paras. 14, 104 et seq.]; sect. 7 [paras. 10, 28, 31]; sect. 8 [para. 14 et seq.]; sect. 24 [paras. 46, 60]; sect. 24(1) [para. 28]; sect. 24(2) [paras. 15, 26, 28, 38, 60, 65, 68, 109, 118, 120, 121, 123, 143, 150].

Criminal Code, R.S.C. 1970, c. C-34, sect. 178.1, sect. 178.2, sect. 178.11 [para. 29]; sect. 178.11(1) [para. 105]; sect. 178.12 [para. 29]; sect. 178.12(1)(e) [paras. 38, 110]; sect. 178.12(1)(g) [para. 16]; sect. 178.13 [paras. 29, 34, 115]; sect. 178.13(1) [paras. 29, 32, 108]; sect. 178.13(1.1), sect. 178.13(1.2) [para. 29]; sect. 178.13(1)(a) [paras. 36, 53, 108]; sect. 178.13(1)(b) [paras. 16, 33]; sect. 178.13(2), sect. 178.13(2.1) [para. 29]; sect. 178.13(2)(c) [paras. 38, 110]; sect. 178.14 [para. 44]; sect. 178.14(1) [paras. 29, 129, 131]; sect. 178.14(1)(a)(ii) [para. 48]; sect. 178.14(2), sect. 178.15 [para. 29]; sect. 178.16 [paras. 38, 60]; sect. 178.16(1) [para. 42]; sect. 178.16(1)(a) [paras. 57, 109, 115, 120, 121]; sect. 178.16(3)(b) [para. 42]; sect. 178.16(4), sect. 178.17, sect. 178.18, sect. 178.19, sect. 178.21, sect. 178.22, sect. 178.23 [para. 29]; sect. 431.1 [paras. 8, 23]; sect. 577(3) [para. 133]; sect. 610(1)(a) [para. 11]; sect. 610(1)(b) [para. 12]; Part IV.1 [para. 104 et seq.].

Criminal Code, R.S.C. 1985, c. C-46, sect. 184, sect. 185, sect. 186, sect. 187, sect. 188, sect. 189, sect. 190, sect. 191, sect. 192, sect. 194, sect. 196 [para. 29]; sect. 184(1) [para. 105]; sect. 650(3) [para. 133].

Omnibus Crime Control and Safe Streets Act (1968), 18 U.S.C.A. Title III, sect. 2510, sect. 2511, sect. 2512, sect. 2513, sect. 2514, sect. 2515, sect. 2516, sect. 2517, sect. 2518, sect. 2519, sect. 2520 [paras. 16, 132].

Authors and Works Noticed:

McCormick on Evidence (3rd Ed. 1984), pp. 743, 744 [para. 24].

Counsel:

Keith E. Wright and Marc Rosenberg, for the appellant;

J.E. Thompson and R.W. Hubbard, for the respondent.

Solicitors of Record:

Keith E. Wright, Toronto, Ontario, for the appellant;

John C. Tait, Ottawa, Ontario, for the respondent.

This appeal was heard on October 3 and  4, 1989, before Dickson, C.J.C., Lamer, C.J.C., * La Forest, L'Heureux-Dubé, Sopinka, Gonthier and McLachlin, JJ., of the Supreme Court of Canada.

The judgment of the court was rendered in both official languages on November 22, 1990, including the following opinions:

Sopinka, J. (Dickson, C.J.C., Lamer, C.J.C., La Forest and Gonthier, JJ., concurring) - see paragraphs 1 to 101;

McLachlin, J., dissenting (L'Heureux-Dubé, J., concurring) - see paragraphs 102 to 156.