R. v. Heikel et al. (No. 3), (1990) 110 A.R. 161 (QB)

• Judge: Murray, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 07, 1990
• Citations: (1990), 110 A.R. 161 (QB)

R. v. Heikel (1990), 110 A.R. 161 (QB)

MLB headnote and full text

Her Majesty The Queen v. Paul Ferdinand Heikel, Janet Eva Heikel, Lawrence Alfred Heikel, David Phillip Richard, Norman Paul Brazel, Robert David Heikel and Jack Donald Heikel

(No. 8503-1344-C0)

Indexed As: R. v. Heikel et al. (No. 3)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Murray, J.

November 7, 1990.

Summary:

The accused were charged with conspiracy to traffic in controlled drugs contrary to the Food and Drugs Act. The Alberta Court of Queen's Bench previously ruled that certain wiretap evidence violated the accuseds' s. 8 Charter rights. The issues in this case were: (1) once a person was arrested or detained, could the interception of that person's private communications be continued?; (2) where a member of the court granted an order allowing the interception of private communications being aware that some of the objects of the authorization had been arrested, had the accuseds' right to a fair trial under s. 11(d) of the Charter been denied?; (3) were the accuseds' rights to be tried within a reasonable time denied? and (4) were the accuseds' ss. 7 and 11(d) Charter rights denied where state authorities destroyed or lost many documents relevant to the offence?

The Alberta Court of Queen's Bench answered the questions accordingly.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The Alberta Court of Queen's Bench stated that "before allowing the authorities to intrude into the privacy or sanctity of a subject's home or his private thoughts by use of 'electromagnetic, acoustic, mechanical or other device' capable of intercepting private communications surreptitiously, the requirements of Part IV.1 respecting the invasion of privacy must be strictly complied with ... If interceptions occur otherwise than as prescribed by Part IV.1 then those so seized will not be admissible in evidence by virtue of s. 178.16(1) of the Code. Such seizure is also an infringement and denial of the individual's s. 8 Charter rights and thus subject to scrutiny under s. 24(2)" - See paragraphs 37 and 38.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right of accused to make full answer and defence - The Alberta Court of Queen's Bench stated that ss. 7 and 11(d) of the Charter guaranteed an accused the right to full and timely disclosure and preservation of "documents" that were material or relevant to the offence charged, subject to such exceptions, qualifications or restriction as considered necessary by the court - To deny such timely discovery was contrary to the principles of fundamental justice and denied an accused the right to make full answer and defence - The court stated that proof of the unexplained loss or deliberate destruction of relevant documents by the state violated the accuseds' ss. 7 and 11(d) right to full answer and defence.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to fair trial - The accused submitted that where the court authorized interception of private communications with knowledge that the objects of the authorization had been arrested for the very offences named in the authorization, that the court assumed a role which was part of the investigative arm of the state authorities - The accused submitted that in such case their s. 11(d) Charter right to a fair trial by an independent and impartial tribunal was denied - The Alberta Court of Queen's Bench disagreed - See paragraphs 84 to 86.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to remain silent - [See Civil Rights - Topic 4302].

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - "Within a reasonable time" - What constitute - The Alberta Court of Queen's Bench stated that the factors to be considered in determining whether a delay was unreasonable were (1) the length of the delay; (2) the reasons for the delay (Crown delays, accused's delays and systemic delays); (3) any waiver of delays by the accused; and (4) prejudice to the accused - See paragraph 92.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - "Within a reasonable time" - What constitutes - The accused were acquitted of trafficking - A new trial was ordered - Before the new trial was held a challenge to the wiretap authorization in the case went to the Alberta Court of Appeal and then to the Supreme Court of Canada, further delaying the trial - The Alberta Court of Queen's Bench stated that the authorities were not clear as to whether delays attributable to the appellate process were to be considered in determining whether an accused's right to be tried within a reasonable time was denied - The court stated that any lapse of time at the Supreme Court of Canada level was not to be considered - See paragraphs 123 to 127.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - "Within a reasonable time" - What constitutes - Seven accused were charged in 1982 with conspiracy to traffic in controlled drugs - They were acquitted at trial after the trial judge ruled wiretap evidence inadmissible - The Court of Appeal ordered a new trial - Before retrial, the accused unsuccessfully challenged the wiretap authorization in the Court of Queen's Bench - Both the Court of Appeal and the Supreme Court of Canada dismissed appeals by the accused, leaving the new trial to proceed - Seven years and seven months elapsed between the laying of the information and the new trial - The Alberta Court of Queen's Bench held that there was no denial of the accuseds' s. 11(b) Charter rights to be tried within a reasonable time - See paragraphs 87 to 149.

Civil Rights - Topic 4302

Protection against self-incrimination - Right to remain silent - Police continued to intercept the private communications of the accused following their arrest - The accused claimed infringement of their residual rights to privacy as protected under s. 7 of the Charter - The Alberta Court of Queen's Bench stated that the right to silence as guaranteed by s. 7 of the Charter extended beyond testimonial statements as specifically protected in ss. 11(c) and 13 - Section 7 protected individuals against statements being elicited from that person in the pretrial detention period by means of a trick - The court stated that after detention "the continued interception of that person's communications constitutes a deprivation of his s. 7 right to silence" - See paragraphs 60 to 66.

Civil Rights - Topic 4305

Protection against self-incrimination - Compellability of parties to offence - Section 11(c) of the Charter provided that a detained person was "not to be compelled to be a witness in proceedings against that person in respect of the offence" - The Alberta Court of Queen's Bench stated that "s. 11(c) deals with testimonial evidence. The key to s. 11(c) is the question of compellability of the person charged to give testimonial evidence in criminal or penal proceedings against him or her in respect of the offence with which he or she is charged. It does not relate to out-of-court statements such as intercepted private communications" - See paragraph 55.

Civil Rights - Topic 4461

Protection against self-incrimination - Use of incriminating evidence in other proceedings - General - Section 13 of the Charter provided that "a witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence" - The Alberta Court of Queen's Bench stated that "s. 13 deals with testimonial evidence and does not apply to out-of-court statements. I am satisfied that it does not apply to intercepted, recorded and transcribed private communications" - See paragraphs 56 and 57.

Civil Rights - Topic 4604

Right to counsel - Denial of - What constitutes - Section 10(b) of the Charter guaranteed an accused's right, upon arrest or detention, to retain and instruct counsel without delay and to be advised of that right - The Alberta Court of Queen's Bench stated that inherent in that right was that it be exercised in private - The accused were objects of a wiretap authorization before their arrest - Their conversations with their lawyers were recorded, but not tendered in evidence - The court stated that the accuseds' s. 10(b) rights were denied - Compliance with Part IV.1 of the Criminal Code did not allow the state to indiscriminately intercept all private communications of an arrested or detained person and avoid a s. 10(b) Charter rights infringement by not tendering the conversations - See paragraphs 47 to 51.

Civil Rights - Topic 4615

Right to counsel - Instructing counsel - Right to privacy - [See Civil Rights - Topic 4604].

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice - The Alberta Court of Queen's Bench stated that the continued interception of a detained person's communications violated his s. 7 Charter right to silence - The court stated that "to allow the continued interception of private communications premised on facts that existed prior to the arrest or detention, without a complete review by the court in the context of the individual's right to silence, is to deprive that person of his right to liberty and security of the person contrary to the principles of fundamental justice. Once Part IV.1 is complied with following detention or arrest, then those principles would be satisfied" - See paragraph 68.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - [See Civil Rights - Topic 8344].

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - Section 7 of the Charter guaranteed persons the right to life, liberty and security of the person and the right not to be deprived of that right except in accordance with the principles of fundamental justice - The Alberta Court of Queen's Bench stated that "one specie of the parcel of legal rights contained in s. 7 is the residual rights to silence not specifically enumerated in s. 10(b), s. 11(c), s. 11(d) and s. 13 ... Another is the residual rights to privacy not specifically enumerated in ss. 8 to 14, particularly s. 8, the right to be secure against unreasonable search and seizure" - See paragraphs 40 to 42.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - [See Civil Rights - Topic 4302].

Criminal Law - Topic 129

Rights of accused - Discovery or production of relevant information - [See Civil Rights - Topic 3133].

Criminal Law - Topic 5277

Evidence - Witnesses - Interception of private communications - Admissibility - General - [See Civil Rights - Topic 1646].

Criminal Law - Topic 5285

Evidence - Witnesses - Interception of private communications - Authority for - Renewals - Persons who were the objects of a wiretap authorization were arrested - The Alberta Court of Queen's Bench stated that "upon the arrest or detention of any object, the scope of the initial authorization fundamentally changes and therefore the proper step to take is to apply for a new authorization when full, fair, frank and up-to-date disclosure of facts must be made to the authorizing judge" - The court stated that a renewal of the authorization was not appropriate - See paragraph 69.

Criminal Law - Topic 5286

Evidence - Witnesses - Interception of private communications - Authority for - Scope of - [See Criminal Law - Topic 5285].

Cases Noticed:

R. v. Lyons, Prevedoros and McGuire, [1987] 2 S.C.R. 309; 56 N.R. 6; 15 C.C.C.(3d) 417, refd to. [paras. 34, 45].

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

R. v. Finlay and Grellette (1985), 11 O.A.C. 279; 23 C.C.C.(3d) 48 (C.A.), refd to. [para. 36].

R. v. Thompson (1990), 114 N.R. 1 (S.C.C.), refd to. [para. 37].

R. v. Garofoli et al. (1988), 27 O.A.C. 1; 41 C.C.C.(3d)(C.A.), refd to. [para. 38].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al. (1990), 106 N.R. 161 (S.C.C.), refd to. [para. 40].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 40].

R. v. Hebert (1990), 110 N.R. 1 (S.C.C.), refd to. [para. 42].

R. v. Beare; R. v. Higgins (1988), 88 N.R. 205; 71 Sask.R. 1; 66 C.R.(3d) 97 (S.C.C.), refd to. [para. 42].

R. v. Morgentaler (1988), 82 N.R. 1; 26 O.A.C. 1; 62 C.R.(3d) 1 (S.C.C.), refd to. [para. 43].

Cloutier v. Langlois and Bédard (1990), 105 N.R. 241; 30 Q.A.C. 241; 53 C.C.C.(3d) 257 (S.C.C.), refd to. [para. 43].

R. v. McKane (1987), 21 O.A.C. 73; 58 C.R.(3d) 130 (C.A.), refd to. [para. 47].

R. v. Playford (1987), 24 O.A.C. 161; 67 C.R.(3d) 101 (C.A.), refd to. [para. 47].

R. v. Standish (1983), 24 B.C.L.R. 323 (B.C.C.A.), refd to. [para. 47].

R. v. Hunter (1986), 70 A.R. 316 (C.A.), refd to. [para. 47].

R. v. Marcoux, [1976] 1 S.C.R. 763; 4 N.R. 64, refd to. [para. 53].

R. v. Esposito (1985), 12 O.A.C. 350; 53 O.R.(2d) 356 (C.A.), refd to. [para. 54].

R. v. Boss (1988), 30 O.A.C. 184 (C.A.), refd to. [para. 54].

R. v. Langevin (1984), 3 O.A.C. 110; 11 C.C.C.(3d) 336 (C.A.), refd to. [para. 54].

R. v. Sutherland (1990), 96 N.S.R.(2d) 271; 253 A.P.R. 271; 55 C.C.C.(3d) 265 (C.A.), refd to. [para. 54].

R. v. Dubois, [1985] 2 S.C.R. 350; 62 N.R. 50; 66 A.R. 202, refd to. [para. 56].

R. v. Videoflicks Ltd. (1984), 5 O.A.C. 1; 48 O.R.(2d) 395 (C.A.), refd to. [para. 58].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81, refd to. [paras. 58, 89].

Griswold v. Connecticut (1965), 381 U.S. 479, refd to. [paras. 60, 78].

R. v. Hicks, [1990] 1 S.C.R. 120; 104 N.R. 399; 37 O.A.C. 143, affing. (1988), 28 O.A.C. 118; 42 C.C.C.(3d) 394 (C.A.), refd to. [para. 62].

R. v. Logan, Logan and Johnson (1988), 30 O.A.C. 321 (C.A.), refd to. [para. 62].

R. v. Woolley (1988), 25 O.A.C. 390 (C.A.), refd to. [para. 62].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 64].

R. v. Pleich (1980), 16 C.R.(3d) 194 (Ont. C.A.), refd to. [para. 69].

R. v. Land (1990), 55 C.C.C.(3d) 382 (Ont. H.C.J.), refd to. [para. 71].

R. v. Dyment (1988), 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13; 45 C.C.C.(3d) 244 (S.C.C.), refd to. [para. 78].

R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40, refd to. [para. 81].

R. v. Rahey (1987), 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183; 33 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 89].

R. v. Conway (1989), 96 N.R. 241; 34 O.A.C. 165; 70 C.R.(3d) 209; 49 C.C.C.(3d) 209 (S.C.C.), refd to. [para. 89].

R. v. Smith (M.H.) (1989), 102 N.R. 205; 63 Man.R.(2d) 81; 52 C.C.C.(3d) 97, refd to. [para. 89].

R. v. Askov, Hussey, Melo and Gugliotta (1990), 107 N.R. 241 (S.C.C.), refd to. [para. 89].

R. v. Morin (1990), 38 O.A.C. 298 (C.A.), refd to. [para. 89].

R. v. Meltzer and Laison, [1989] 1 S.C.R. 1764; 96 N.R. 391, refd to. [para. 119, Appendix B].

R. v. Ouellette, [1989] 1 S.C.R. 1781; 97 N.R. 92, refd to. [para. 119].

R. v. Ushkowski (1990), 64 Man.R.(2d) 298 (Q.B.), refd to. [para. 125].

Montréal (City) v. McDonald, [1986] 1 S.C.R. 460; 67 N.R. 1, refd to. [para. 152].

R. v. Albright, [1987] 2 S.C.R. 383; 79 N.R. 129, refd to. [para. 152].

R. v. Mack, [1989] 1 W.W.R. 577; 90 N.R. 173 (S.C.C.), refd to. [para. 152].

R. v. Hunter (1987), 19 O.A.C. 131; 34 C.C.C.(3d) 14 (C.A.), refd to. [para. 152].

R. v. Bourget (1987), 54 Sask.R. 178; 56 C.R.(3d) 97; 35 C.C.C.(3d) 371 (C.A.), refd to. [para. 153].

R. v. Savion and Mizrahi (1980), 52 C.C.C.(2d) 276 (Ont. C.A.), refd to. [para. 153].

R. v. Jannison and Kennedy (1981), 62 C.C.C.(2d) 481 (Ont. D.C.), refd to. [para. 153].

R. v. Trotchie (1984), 31 Sask.R. 250 (Q.B.), refd to. [para. 153].

R. v. Dorion (1985), 67 N.S.R.(2d) 130; 155 A.P.R. 130; 19 C.C.C.(3d) 350 (C.A.), refd to. [para. 153].

Duke v. R., [1972] S.C.R. 917, refd to. [para. 154].

R. v. Woods (1989), 32 O.A.C. 122; 51 C.C.C.(3d) 201 (C.A.), refd to. [para. 156].

R. v. Patterson (1970), 2 C.C.C.(2d) 227 (S.C.C.), refd to. [para. 157].

States v. Bryant (1971), 439 F. 2d 642, refd to. [para. 162].

R. v. Leblanc (1990), 75 C.R.(3d) 395 (Ont. H.C.J.), refd to. [para. 166].

R. v. Lalonde (1971), 5 C.C.C.(2d) 168 (Ont. H.C.J.), refd to. [para. 167].

R. v. Collins, [1987] 1 S.C.R.(3d) 193; 74 N.R. 276, refd to. [para. 170].

R. v. Roach (1985), 67 A.R. 73; 23 C.C.C.(3d) 262 (C.A.), refd to. [para. 170].

United States v. Smilow (1973), 472 F. 2d 1193 (U.S.C.A.), refd to. [para. 176].

United States v. Huss (1973), 482 F. 2d 38 (U.S.C.A.), refd to. [para. 176].

Potsma and The Queen, Re (1983), 2 C.C.C.(3d) 383, leave to appeal denied 33 C.R.(3d) XXV, refd to. [para. 186].

R. v. Wilson (1983), 51 N.R. 321; 26 Man.R.(2d) 194; 9 C.C.C.(3d) 97 (S.C.C.), refd to. [Appendix B].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 30 [para. 164].

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 2]; sect. 8 [para. 1]; sect. 10(b), sect. 11(b), sect. 11(c), sect. 11(d), sect. 13 [para. 2]; sect. 24(1), sect. 24(2) [para. 3].

Criminal Code, R.S.C. 1970, c. C-34, sect. 178.1 [para. 63]; sect. 178.12(1), sect. 178.13(1), sect. 178.13(2) [para. 67]; sect. 178.13(3), sect. 178.13(4) [para. 69]; sect. 178.16(1) [para. 38]; sect. 178.16(4) [para. 164]; sect. 178.16(5) [para. 49]; sect. 241(7) [para. 164].

Criminal Code, R.S.C. 1985, c. C-46, sect. 189(5), sect. 258(7) [para. 164].

Authors and Works Noticed:

McWilliams, Canadian Criminal Evidence (3rd Ed.), p. 28.15 [para. 157].

Stevenson and Côté, Civil Procedure Guide (1989), pp. 827-829 [para. 72].

Wigmore on Evidence, vol. 2, p. 228 [para. 179].

Counsel:

S.R. Creagh (Department of Justice) and A. Veylan (Cleall, Pahl, Pontin & Knaak), for the Crown;

H. Rubin, for Paul and Janet Heikel;

R.J. Sachs (Whiting, Sachs & Marr), for Robert Heikel;

R.G. Gariepy, for Lawrence Heikel;

D.R. Cunningham (Beresh & DePoe), for Jack Heikel;

M.P. Stone, for David Richard;

P.R. Solotki, for Norman Brazel.

This case was heard before Murray, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who made the following ruling on November 7, 1990.