R. v. Rowbotham et al., (1988) 25 O.A.C. 321 (CA)

• Judge: Martin, Cory and Grange, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 21, 1988
• Jurisdiction: Ontario
• Citations: (1988), 25 O.A.C. 321 (CA);1988 CanLII 147 (NS CA);1988 CanLII 147 (ON CA);41 CCC (3d) 1;63 CR (3d) 113;[1988] CarswellOnt 48;[1988] OJ No 271 (QL);25 OAC 321;35 CRR 207;4 WCB (2d) 30

R. v. Rowbotham (1988), 25 O.A.C. 321 (CA)

MLB headnote and full text

Her Majesty the Queen (respondent) v. Robert Rowbotham, Robert Skryzdlo, Arthur Goldstein, Steven McLeod, Donald Jeffrey, David Roblin, Mallory Gawn, George Kononow, Laura Kononow, and Robert Young (appellants)

(Nos. 1037/85; 751/85; 810/85; 804/85; 730/85; 737/85; 741/85; 729/85; 756/85; 733/85)

Indexed As: R. v. Rowbotham et al.

Ontario Court of Appeal

Martin, Cory and Grange, JJ.A.

March 21, 1988.

Summary:

The ten accused were charged with four counts of conspiracy to import and traffic in narcotics. The accused were each convicted of at least one count. They all appealed on a number of grounds including, inter alia, that the trial judge erred in the procedure adopted to empanel the jury.

The Ontario Court of Appeal allowed the appeal and ordered a new trial for all accused because of the improper jury selection procedure. The court also considered the numerous issues raised in the appeal, including: an application to set aside a wiretap authorization, apprehended bias by the trial judge, an out-of-court statement by an unindicted co-conspirator, the criminal record of one of the accused which was introduced as evidence, the trial judge's charge respecting the involvement of the "lesser conspirators", the searches of two of the accused, the trial judge's charge respecting the involvement of a husband and wife in the conspiracy, the right of an accused to have counsel appointed by the court and paid for by the state, and whether the new trial should involve all counts.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - Unreasonable search and seizure - What constitutes - The police obtained a narcotics search warrant for a particular hotel room - They searched the room and searched Young and G. Kononow when they arrived at the room later in the day - They did not arrest them, but seized items from them - The trial judge held that the searches were contrary to s. 8 of the Canadian Charter of Rights and Freedoms, but refused to exclude the evidence seized under s. 24 of the Charter - The Ontario Court of Appeal held that the trial judge's decision was "indubitably right" - See paragraph 134.

Civil Rights - Topic 4631

Right to counsel - Appointment of counsel by the court - General - The Ontario Court of Appeal stated that "an accused ... has the right to defend himself and no one has the right to force counsel on him against his wishes" - See paragraph 148.

Civil Rights - Topic 4633

Right to counsel - Appointment of counsel by the court - Where accused impecunious - L. Kononow was charged along with nine others with conspiracy to traffic and import narcotics - She was not represented by counsel - The trial judge refused her application to have counsel appointed and paid for by the state, where she did not qualify for legal aid - The Ontario Court of Appeal held that she lacked the means to afford counsel for the twelve months of the trial and could not have a fair trial without some representation - The court suggested that an agreement could have been worked out whereby her counsel would have attended only where matters arose affecting her, or some contribution or loan agreement could have been worked out with legal aid - See paragraphs 135 to 164.

Civil Rights - Topic 4633

Right to counsel - Appointment of counsel by the court - Where accused impecunious - The Ontario Court of Appeal stated that "the right to retain counsel, constitutionally secured by s. 10(b) of the Charter, and the right to have counsel provided at the expense of the state are not the same thing. The Charter does not in terms constitutionalize the right of an indigent accused to be provided with funded counsel ... In our opinion, those who framed the Charter did not expressly constitutionalize the right of an indigent accused to be provided with counsel, because they considered that, generally speaking, the provincial legal aid systems were adequate to provide counsel for persons charged with serious crimes who lacked the means to employ counsel. However, in cases not falling within provincial legal aid plans, ss. 7 and 11(d) of the Charter ... require funded counsel to be provided if the accused wishes counsel, but cannot pay a lawyer, and representation of the accused by counsel is essential to a fair trial" - See paragraph 156.

Civil Rights - Topic 4633

Right to counsel - Appointment of counsel by the court - Where accused impecunious - [See Criminal Law - Topic 4989 below].

Civil Rights - Topic 4633

Right to counsel - Appointment of counsel by the court - Where accused impecunious - The Ontario Court of Appeal stated that "a trial judge confronted with an exceptional case where legal aid has been refused, and who is of the opinion that representation of the accused by counsel is essential to a fair trial, may, upon being satisfied that the accused lacks the means to employ counsel, stay the proceedings against the accused until the necessary funding of counsel is provided ... In those circumstances, even before the advent of the Charter, the trial judge had the power to stay proceedings until counsel for the accused was provided. Such a stay is clearly an appropriate remedy under s. 24(1) of the Charter. Where the trial judge exercises this power, either legal aid or the Crown will be required to fund counsel if the trial is to proceed" - See paragraph 167.

Civil Rights - Topic 4633

Right to counsel - Appointment of counsel by the court - Where accused impecunious - [See Civil Rights - Topic 8374 below].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1217 above].

Civil Rights - Topic 8374

Charter - Denial of rights - Remedies - Stay of proceedings - The Ontario Court of Appeal stated that "where the trial judge finds that representation of an accused by counsel is essential to a fair trial, the accused ... has a constitutional right to be provided with counsel at the expense of the state if he or she lacks the means to employ one. Where the trial judge is satisfied that an accused lacks the means to employ counsel, and that counsel is necessary to ensure a fair trial for the accused, a stay of the proceedings until funded counsel is provided is an appropriate remedy under s. 24(1) of the Charter where the prosecution insists on proceeding with the trial in breach of the accused's Charter right to a fair trial" - See paragraph 170.

Civil Rights - Topic 8469

Canadian Charter of Rights and Freedoms - Interpretation - United States experience - In considering whether the right to be provided with counsel at the state's expense is entrenched in the Charter, the Ontario Court of Appeal referred to American jurisprudence in this area of the law - See paragraphs 153 to 155.

Courts - Topic 557

Judges - Powers - To conduct independent research - During an application to set aside a wiretap authorization, the trial judge revealed that he had been in touch with a person in the Federal Crown law office to discuss recent jurisprudence - As a result he received certain recent decisions and informed counsel of that fact, but declined to give them copies - In ruling on the application he referred to one of the decisions - The Ontario Court of Appeal stated that there is nothing wrong with a trial judge seeking assistance on law wherever he can find it, but it was unfortunate that he chose to go to a Crown law office and refused to give copies of the decision to counsel - In the result, however, the court held that there was no substantial wrong or miscarriage of justice arising from the judge's conduct - See paragraphs 114 to 116.

Courts - Topic 563

Judges - Powers - To appoint counsel - The Ontario Court of Appeal stated that a "trial judge, in our view, has inherent power, in order to ensure a fair trial, to appoint counsel to defend an indigent accused" - See paragraph 166 - The court held further that he may exercise this power even where legal aid officials have refused the accused's application for legal aid - See paragraph 167.

Courts - Topic 592

Judges - Duties - Duty to conduct fair and impartial proceedings - [See Courts - Topic 563 above].

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - [See Courts - Topic 557 above].

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - Ten accused were charged with conspiracy to import and traffic in narcotics - The trial judge had sat previously as a Weekly Court Judge on an application by one of the accused (McLeod) to quash his committal for trial - McLeod asked for a severance and all counsel asked that the judge disqualify himself because of his involvement with the McLeod certiorari application - The trial judge dismissed both applications - The Ontario Court of Appeal agreed with the trial judge's decision where there was no reasonable apprehension of bias - See paragraphs 117, 118.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - Young was convicted of one count of conspiracy to traffic in a narcotic - The case against him consisted in part of an allegation that he was the "B.Y." constantly referred to in intercepted conversations of the major conspirators - The trial judge would not permit Young's counsel to illicit from him evidence respecting the identity of "B.Y." on the ground that it was hearsay (i.e. someone told Young who "B.Y." was) - The Ontario Court of Appeal held that the trial judge might have permitted Young in his own defence to state who he believed "B.Y." to be and to state his reasons for that belief - The court stated, however, that it would not go so far as to say that the trial judge erred in ruling as he did - See paragraphs 131 to 133.

Criminal Law - Topic 2649

Conspiracies - Husband and wife - The Ontario Court of Appeal stated that "the rule that a husband and wife cannot conspire with each other is limited to cases in which the husband and wife are the sole conspirators. Although a husband and wife cannot be convicted of conspiring with one another, they can severely or jointly conspire with other persons ... Where, however, there is no evidence that any of the other alleged co-conspirators were parties to the conspiracy alleged, the husband and wife must be acquitted, because they cannot conspire with each other" - See paragraph 174.

Criminal Law - Topic 2673

Conspiracies - Jury charge - Re husband and wife - A husband and wife (G. and L. Kononow) were charged, along with eight others, with conspiracy to import and traffic in narcotics - The Ontario Court of Appeal reviewed the trial judge's charge respecting the involvement of the husband and wife in the conspiracy and held that the instruction respecting the wife was inadequate - See paragraphs 171 to 175.

Criminal Law - Topic 2673

Conspiracies - Jury charge - Ten accused were charged with conspiracy to traffic and import narcotics - The Ontario Court of Appeal reviewed the trial judge's charge as it related to the special position of the "lesser conspirators" - The court held that the charge respecting two of the accused (Roblin and Gawn) was deficient because it failed to differentiate between mere purchasers and coconspirators - The court held that the failure to make the distinction justified a new trial for the two accused - See paragraphs 124 to 130.

Criminal Law - Topic 4225

Procedure - Pleas - Plea of autrefois acquit - The Ontario Court of Appeal stated that "it is, of course, textbook law that where a court lacked jurisdiction to try the accused, an acquittal is not a bar to a further trial and the accused cannot successfully plead autrefois acquit. Only prior acquittals which are void, as opposed to being merely voidable, are considered as having been made without jurisdiction for this purpose. It has been suggested that the proper test for determining whether the prior adjudication was void, as distinct from being merely voidable, is whether the adjudication is without any semblance of authority" - See paragraph 181.

Criminal Law - Topic 4310

Procedure - Jury - Empanelling - The Ontario Court of Appeal discussed the procedure to be followed by a trial judge where a panel of prospective jurors is exhausted before a full jury is selected - See paragraphs 18 to 77.

Criminal Law - Topic 4310

Procedure - Jury - Empanelling - The Ontario Court of Appeal stated that "under s. 14 of the Ontario Juries Act, incorporated by s. 554 of the [Criminal] Code, the judge assigned to hold a sittings of the Supreme Court of Ontario may, at any time during the sittings prior to the commencement of the jury selection process, direct the Sheriff to return an additional number of jurors if he considers that the panel returned is inadequate for a particular trial. However, s. 571 of the Criminal Code specifically provides for a summoning of talesmen where a full jury cannot be provided, notwithstanding that the relevant provisions of the Code have been complied with. It is, in our view, clear that the trial judge is not entitled to invoke s. 14 of the Juries Act to supplement the panel where it is exhausted during the empanelling of the jury. The Code sets out the exclusive procedure to be followed in those circumstances" - See paragraph 50.

Criminal Law - Topic 4310

Procedure - Jury - Empanelling - The Ontario Court of Appeal discussed what constitutes a "panel" of jurors within the meaning of the Criminal Code - See paragraph 51.

Criminal Law - Topic 4310

Procedure - Jury - Empanelling - Curative provisions - The Criminal Code, s. 572(3), provided that an omission to follow the jury selection provisions of the Criminal Code did not affect the validity of the proceedings - S. 598(a) provided that a judgment shall not be stayed or reversed after verdict upon an indictment by reason of any irregularity in the summoning or empanelling of the jury - The Ontario Court of Appeal stated that "both ss. 572(3) and 598(a) apply only to irregularities and have no application where the error is such that the accused has been deprived of his statutory right, or to an error depriving the accused of the right to a trial by a jury lawfully constituted" - See paragraphs 62 to 65, 71.

Criminal Law - Topic 4310

Procedure - Jury - Empanelling - Talesmen - The Ontario Court of Appeal discussed the summoning of talesmen in the jury selection process - See paragraphs 57 to 77 - The court stated that "s. 571(1) [of the Criminal Code] contemplates that where the judge orders a tales, he shall specify the number of persons the Sheriff is to summon" - See paragraph 60 - The court also stated that "in the absence of a statutory provision to the contrary the number of persons to be summoned as talesmen is within the discretion of the court" - See paragraph 61.

Criminal Law - Topic 4310

Procedure - Jury - Empanelling - Three panels of jurors were required to attend at court on three different days (panels 007, 008, 009) - In a conspiracy case jury selection commenced with jurors being selected from panel 007 - The panel was exhausted before a full jury was selected - Three Crown stand-asides were considered, but none was chosen - The court directed that panel 008 be considered - Panel 008 was also exhausted, there being 16 Crown standasides - Rather than call talesmen or consider the stand-asides, the judge directed that the members of panel 009 be considered - The Ontario Court of Appeal held that the process adopted by the trial judge deprived the accused of a trial by a jury lawfully constituted and ordered a new trial - The court commented that the judge should not have used a procedure that prevented resorting to stand-asides - The court set out the procedure which should have been followed - See paragraphs 18 to 77.

Criminal Law - Topic 4349

Procedure - Jury - Evidence - Tapes and transcripts of intercepted communications - The accused were charged with conspiracy to import and traffic narcotics - During the course of police investigations private communications were intercepted - At trial the judge allowed the jury to have the tapes and the transcripts of the tapes of the intercepted communications - The Ontario Court of Appeal held that the judge committed no error in allowing the jury to retain the tapes and transcripts, where he carefully and properly instructed the jury that it was the tapes which constituted the evidence they must consider and equipment to listen to the tapes was provided to the jury - See paragraphs 103 to 109.

Criminal Law - Topic 4349.1

Procedure - Jury - Evidence - Out-of-court statements - Ten accused were on trial for conspiracy to traffic and import narcotics - A co-conspirator gave evidence for the Crown in return for immunity from prosecution - He gave a 65 page statement to police upon which he was cross-examined at trial - The judge then permitted the statement to be made an exhibit and to go with the jury into the jury room during deliberations - The Ontario Court of Appeal held that the trial judge erred in that ruling, holding that the statement was not evidence and did not become so merely because it was cross-examined upon - The court stated that "the statement should never have been before them during their deliberations" - See paragraphs 119, 120.

Criminal Law - Topic 4954

Appeals - Indictable offences - New trials - Grounds - Error by trial judge on jury selection - A trial judge embarked on a jury selection procedure which prevented the resorting to Crown stand-asides by continual enlargement of the jury panel without calling talesmen - The Ontario Court of Appeal held that this failure to follow the Criminal Code jury selection procedure was a ground for a new trial - See paragraphs 18 to 77.

Criminal Law - Topic 4954

Appeals - Indictable offences - New trials - Grounds - Error by trial judge on jury selection - Goldstein, along with nine others, was charged with four counts of conspiracy to traffic and import narcotics - He was convicted of conspiracy to traffic in cannabis resin, but acquitted on the other three counts - On appeal, Crown counsel argued that if a new trial were ordered for the ten accused, because of improper jury selection, the court should set aside his acquittals and direct a new trial on all four counts - The Ontario Court of Appeal rejected the Crown's argument, holding that the new trial for Goldstein should be limited to the count on which he was convicted - The court added that the new trial for the other accused should also be limited to the counts for which they were found guilty by the jury - See paragraphs 179 to 185.

Criminal Law - Topic 4965.4

Appeals - Indictable offences - New trials - What counts to be considered - [See Criminal Law - Topic 4954 immediately above].

Criminal Law - Topic 4989

Appeals - Indictable offences - Powers of court of appeal - Power to quash conviction where miscarriage of justice - The Ontario Court of Appeal stated "it should be noted that, apart altogether from the Charter, an appellate court is empowered to quash a conviction where it is of the opinion that the lack of representation of an accused by counsel at the trial has resulted in a miscarriage of justice ... A miscarriage of justice within s. 613(1)(a)(iii) of the Code occurs where there is an appearance of unfairness in the trial of an accused. Furthermore, the trial judge, in our view, has inherent power, in order to ensure a fair trial, to appoint counsel to defend an indigent accused" - See paragraphs 165, 166.

Criminal Law - Topic 5275

Evidence and witnesses - Interception of private communications - Application for - Confidentiality of supporting material - The accused were charged with conspiracy to import and traffic in narcotics - They applied to set aside certain wiretap authorizations - The trial judge held that the accused failed to establish a prima facie case of fraud or material nondisclosure and as a result refused access to the sealed packet - The Ontario Court of Appeal held that the judge erred in refusing to grant the accused access - The court noted that the right of an accused to gain access to the material in the sealed packet in light of the Charter was recognized by the court in R. v. Playford, 24 O.A.C. 161 - The court thereafter discussed the procedure to be followed when an application for access is made and the factors to be considered in determining whether the material should be edited - See paragraphs 78 to 90.

Criminal Law - Topic 5275

Evidence and witnesses - Interception of private communications - Application for - Confidentiality of supporting material - The Ontario Court of Appeal noted that prior to the enactment of the Canadian Charter of Rights and Freedoms, there were cases which express the view that s. 178.14 of the Criminal Code prevented an accused person from obtaining access to the contents of the sealed packet - The court stated that this is no longer the rule since the Charter - See paragraphs 81 to 86.

Criminal Law - Topic 5275

Evidence and witnesses - Interception of private communications - Application for - Confidentiality of supporting material - Cross-examination of affiant - The Ontario Court of Appeal stated that the mere fact that the affidavit material in a sealed packet respecting a wiretap authorization must be disclosed does not give rise to an automatic right to cross-examine the deponent - The court set out the procedure and the tests to be applied to determine when cross-examination of the deponent would be permitted - See paragraphs 91 to 96.

Criminal Law - Topic 5284

Evidence and witnesses - Interception of private communications - Authority for - Form and content - In a wiretap authorization there was no description of the manner in which the private communication was to be intercepted - The preamble did, however, state that the interception was to be by "electronic" means - The Ontario Court of Appeal held that the term "electronic" provided an adequate description of the manner of interception - See paragraph 100.

Criminal Law - Topic 5284

Evidence and witnesses - Interception of private communications - Authority for - Form and content - A wiretap authorization authorized the interception of private communications in "Sprout House" located at 3883 Chesswood Drive - No authorization was granted for both phones in that location - The Ontario Court of Appeal noted that although there were "Sprout House" offices on both sides of the corridor of 3883 Chesswood Drive and thus two separate street addresses for the offices, the same phone number was used for the phones in both locations - The court held, therefore, that it was not necessary to specify the two "Sprout House" addresses in the authorization - See paragraph 102.

Criminal Law - Topic 5298

Evidence and witnesses - Inadmissible private communications - Admissible interceptions - Evidence - Voice identification - At a trial where wiretap evidence was tendered the trial judge charged the jury that the police officer who testified on voice identification was in a better position to identify the intercepted speaker's voice than the jury - The jury was also told that they were not bound to accept the officer's opinion - The Ontario Court of Appeal found no error in this instruction, stating that "the instruction on this issue will vary in each case with the factual situation presented" - See paragraphs 112 to 113.

Criminal Law - Topic 5310.3

Evidence and witnesses - Interception of private communications - Inadmissible private communications - Practice - Admission of admissible interceptions - Consideration of tapes and transcripts by jury - The Ontario Court of Appeal discussed the procedure to be followed where transcripts of tapes of intercepted communications are to be tendered for consideration by the jury - See paragraphs 110 to 111.

Criminal Law - Topic 5310.3

Evidence and witnesses - Interception of private communications - Practice - Admission of admissible interceptions - Consideration of tapes and transcripts by jury - [See Criminal Law - Topic 4349 above].

Criminal Law - Topic 5523

Evidence and witnesses - Evidence of accomplices and codefendants - Out-of-court statements by unindicted accomplices - [See Criminal Law - Topic 4349 .1 above].

Evidence - Topic 1291

Relevant facts, relevance and materiality - Criminal cases - Accused's prior convictions - Ten accused were charged with conspiracy to import and traffic in narcotics - Prior to the start of the trial, the Crown obtained permission to lead evidence that one of the accused (Rowbotham) had previously been convicted of conspiracy to import a narcotic - The trial judge permitted the Crown to refer to the conviction in its opening address, but cautioned the jury that they must not use the criminal record as an indication of the likelihood of further criminal activity on his part - The Ontario Court of Appeal held that the trial judge made no reversible error in exercising his discretion to admit the evidence - The court stated that "we go no further than to say that he might have delayed all allusion to the criminal record until it came up naturally in the progress of the evidence rather than permit reference thereto at the beginning of the case" - See paragraphs 121 to 123.

Government Programs - Topic 1403

Legal aid - Ontario Legal Aid Plan - The Ontario Court of Appeal generally discussed the Ontario Legal Aid Plan - See paragraphs 149 to 152.

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 26 C.R.N.S. 1; 44 D.L.R.(3d) 351; 15 C.C.C.(2d) 524, refd to. [para. 4].

R. v. Walton (1906), 12 O.L.R. 1 (C.A.), refd to. [para. 48].

R. v. O'Rourke (1882), 32 U.C.C.P. 388, refd to. [para. 48].

R. v. Barrow, (1987), 81 N.R. 321, consd. [paras. 48, 71].

R. v. Shellman, [1928] 1 D.L.R. 657, consd. [paras. 51, 52].

R. v. Stoddart (1987), 20 O.A.C. 365; 59 C.R.(3d) 134, consd. [paras. 53, 75].

R. v. Solomon (1957), 42 Cr. App. R. 9, refd to. [para. 57].

R. v. Dolby (1823), 107 E.R. 322; 2 B. & C. 104 (K.B.), refd to. [para. 57].

R. v. Lessard (No. 2) (1987), 33 C.C.C.(3d) 561 (Que. S.C.), refd to. [para. 59].

Trepanier v. R. (1911), 19 C.C.C. 290 (Que. K.B., App. Div.), refd to. [para. 61].

R. v. Churton (1919), 31 C.C.C. 188 (B.C.C.A.), consd. [paras. 66, 67, 68, 69, 76].

R. v. Cloutier (1979), 28 N.R. 1; 48 C.C.C.(2d) 1 (S.C.C.), refd to. [paras. 69, 183].

R. v. Varga (1985), 7 O.A.C. 350; 18 C.C.C.(3d) 281 (Ont. C.A.), refd to. [para. 69].

R. v. James, [1969] 1 C.C.C. 278 (B.C.C.A.), refd to. [para. 70].

R. v. Wilson (1983), 51 N.R. 321; 9 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 78].

R. v. Finlay and Grellette (1985), 11 O.A.C. 279; 23 C.C.C.(3d) 48 (Ont. C.A.), refd to. [paras. 79, 82, 85].

R. v. Hunter (1987), 19 O.A.C. 131; 59 O.R.(2d) 364 (Ont. C.A.), refd to. [paras. 83, 85].

R. v. Playford (1987), 24 O.A.C. 161, refd to. [para. 85].

R. v. Dersch (1988), 59 C.R.(3d) 289, refd to. [para. 86].

R. v. Parmar et al. (1987), 34 C.C.C.(3d) 260 (Ont. H.C.J.), apprvd. [para. 88].

R. v. Church of Scientology of Toronto and Zaharia (1987), 13 O.A.C. 17; 31 C.C.C.(3d) 449 (Ont. C.A.), refd to. [para. 91].

Franks v. Delaware (1978), 438 U.S. 154; 98 S.Ct. 2674, refd to. [para. 91].

R. v. Samson (1983), 44 O.R.(2d) 205 (C.A.), refd to. [para. 101].

R. v. Rampling (1987), Crim. L. Rev. 823, refd to. [para. 111].

Martin, Simard, Desjardin and R., Re (1977), 41 C.C.C.(2d) 308, refd to. [para. 118].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215; 70 D.L.R.(3d) 136; 34 C.R.N.S. 204; 30 C.C.C.(2d) 424, refd to. [para. 118].

R. v. McShannock (1980), 55 C.C.C.(2d) 53 (Ont. C.A.), refd to. [para. 120].

R. v. Dubois (1986), 13 O.A.C. 342; 27 C.C.C.(3d) 325, refd to. [para. 121].

R. v. Carter (1982), 47 N.R. 288; 67 C.C.C.(2d) 568 (S.C.C.), refd to. [para. 124].

R. v. Longworth et al. (1982), 67 C.C.C.(2d) 554, refd to. [para. 129].

R. v. Williams (1985), 18 C.C.C.(3d) 356, refd to. [para. 133].

R. v. Collins, [1987] 1 S.C.R. 265; [1987] 3 W.W.R. 699; 74 N.R. 276; 56 C.R.(3d) 193; 33 C.C.C.(3d) 1, refd to. [para. 134].

R. v. Littlejohn and Tirabasso (1978), 41 C.C.C.(2d) 161, refd to. [paras. 147, 149, 165].

Vescio v. R. (1948), 92 C.C.C. 161 (S.C.C.), refd to. [para. 148].

Powell v. Alabama (1932), 287 U.S. 45, refd to. [para. 153].

Gideon v. Wainwright (1963), 372 U.S. 335, refd to. [para. 154].

Argersinger v. Hamlin (1972), 407 U.S. 25, refd to. [paras. 154, 155].

Deutsch v. Law Society of Upper Canada Legal Aid Fund, Lawson and Legge (1985), 11 O.A.C. 30; 48 C.R.(3d) 166 (Ont. Div. Ct.), refd to. [para. 158].

Panacui v. Legal Aid Society of Alberta (1987), 80 A.R. 137; 54 Alta. L.R.(2d) 342 (Q.B.), consd. [para. 159].

R. v. Sowden (1964), 49 Cr. App. R. 32 (C.C.A.), refd to. [para. 165].

R. v. O'Brien, [1967] Crim. L. Rev. 367 (C.C.A.), refd to. [para. 165].

R. v. Kendall and McKay (1987), 20 O.A.C. 134; 35 C.C.C.(3d) 105 (Ont. C.A.), refd to. [para. 165].

R. v. Stiopu et al.; MacKay and Legal Aid Society of Alberta, Re (1983), 8 C.R.R. 216 (Alta. Q.B.) affd. 8 C.R.R. 217n (Alta. C.A.), refd to. [para. 166].

Ewing, Kearny and R., Re (1974), 18 C.C.C.(2d) 356, refd to. [paras. 168, 169].

Kowbel v. R., [1954] S.C.R. 498, consd. [paras. 173, 174].

R. v. McNamara et al. (No. 1) (1981), 56 C.C.C.(2d) 193 (Ont. C.A.), refd to. [para. 174].

Statutes Noticed:

Canada Evidence Act - see Evidence Act.

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [paras. 80, 133, 143, 145, 156, 158, 161]; sect. 8 [paras. 80, 134]; sect. 10(b) [paras. 143, 144, 156, 158]; sect. 11(d) [paras. 53, 80, 143, 145, 156, 158, 161]; sect. 24 [paras. 134, 158].

Constitution Act, 1867, sect. 91(27) [para. 48]; sect. 92(14) [paras. 48, 49].

Criminal Code, R.S.C. 1970, c. C-34, sect. 178.13(1) [paras. 80, 92]; sect. 178.13(1.1), sect. 178.13(1.2), sect. 178.13(2), sect. 178.13(2.1), sect. 178.13(3) [para. 80]; sect. 178.13(4) [paras. 80, 92]; sect. 178.14(1), sect. 178.14(2) [para. 80]; sect. 554 [paras. 19, 48, 50]; sect. 560 [paras. 19, 52, 62]; sect. 562, sect. 563 [para. 19]; sect. 567, sect. 569 [para. 40]; sect. 570 [paras. 19, 26, 28, 53, 62, 66]; sect. 571 [paras. 19, 26, 29, 50, 54, 58, 60, 61, 77]; sect. 572 [paras. 19, 56, 62, 65]; sect. 577 [paras. 48, 146]; sect. 598(a) [paras. 19, 56, 61, 63, 65]; sect. 598(b) [para. 19, 63]; sect. 599 [paras. 19, 62, 64]; sect. 611 [para. 150]; sect. 613(1)(a)(iii) [para. 165].

European Convention on Human Rights, article 6(3)(c) [para. 147].

Evidence Act, R.S.C. 1970, c. E-10, sect. 10(1) [para. 119].

International Covenant on Civil and Political Rights, article 14(3)(d) [para. 147].

Juries Act, R.S.O. 1980, c. 226, sect. 13 [paras. 20, 52]; sect. 14 [paras. 20, 29, 40, 50].

Legal Aid Act, R.S.O. 1980, c. 234, sect. 12, sect. 16(2), sect. 16(3) [para. 149]; sect. 16(11) [para. 150].

Legal Aid Regulations, R.R.O. 1980, Reg. 575, sect. 43(3), sect. 43(4) [para. 149].

Narcotic Control Act, R.S.C. 1970, c. N-1, sect. 10(1)(b) [para. 134].

Omnibus Crime Control and Safe Streets Act, Title III, 18 U.S.C.A. 2510-20 [paras. 81, 91].

United States Constitution, Sixth Amendment, Fourteenth Amendment [paras. 153, 154].

Authors and Works Noticed:

Carr, James G., The Law of Electronic Surveillance (2nd Ed.), section 6, pp. 55, 56 [para. 91].

Friedland, Double Jeopardy (1969), pp. 77-86 [para. 181].

Goode, Criminal Conspiracy in Canada (1975), pp. 97 [para. 174]; 99, 100 [para. 173].

Ouimet Report, Report of the Canadian Committee on Corrections, Toward Unity: Criminal Justice and Corrections 1969, pp. 137, 138 [para. 147].

Russell on Crime (12th Ed. 1964), vol. 2, p. 1471 [para. 174].

Stephen, A History of the Criminal Law of England, vol. 1, pp. 303 [para. 52]; 442 [para. 147].

Whitebread, Criminal Procedure (1980), pp. 515 [para. 153]; 516 [para. 154].

Williams, Glanville, Criminal Law (The General Part)(2nd Ed. 1961), pp. 675, 676 [para. 173].

Williams, Glanville, Textbook of Criminal Law (2nd Ed. 1983), p. 432 [para. 173].

Counsel:

Clayton C. Ruby and Mary Bartley, for Robert Rowbotham;

Alan D. Gold and Michelle Fuerst, for Robert Skryzdlo;

Irwin Koziebrocki, for Arthur Goldstein;

William B. Horkins, for Steven McLeod;

Marc Rosenberg, for Donald Jeffrey;

Michael Code, for David Roblin;

Patrick Duffy, Q.C., for Mallory Gawn;

James C. Fleming, for George Kononow;

H. Markham Silver, for Laura Kononow;

Graham D. Grant, for Robert Young;

C.A. Amerasinghe, Q.C., and B. Glendinning, for the Crown.

This appeal was heard on October 5-9 and 13-16, 1987, before Martin, Cory and Grange, JJ.A., of the Ontario Court of Appeal. The following decision was released by the Court on March 21, 1988: