R. v. Sappia, Philion, Zappia and Domanico, (1980) 39 N.B.R.(2d) 229 (PC)

JudgeArsenault, P.C.J.
CourtProvincial Court of New Brunswick (Canada)
Case DateJuly 02, 1980
JurisdictionNew Brunswick
Citations(1980), 39 N.B.R.(2d) 229 (PC)

R. v. Sappia (1980), 39 N.B.R.(2d) 229 (PC);

    39 R.N.-B.(2e) 229; 103 A.P.R. 229

MLB headnote and full text

Sommaire et texte intégral

R. v. Sappia, Philion, Zappia and Domanico

Indexed As: R. v. Sappia, Philion, Zappia and Domanico

Répertorié: R. v. Sappia, Philion, Zappia and Domanico

New Brunswick Provincial Court

Arsenault, P.C.J.

July 2 and 3, 1980.

Summary:

Résumé:

This case involved the admission into evidence, at a preliminary inquiry, of judicially authorized intercepted private communications.

The New Brunswick Provincial Court made several rulings with respect to the admissibility of such communications.

Criminal Law - Topic 5274

Evidence - Interception of private communications - Application for authorization - The police applied for an authorization to intercept private communications - The New Brunswick Provincial Court held that the supporting affidavit may allege either that other investigative procedures were tried and failed, that they were not tried because they were unlikely to succeed or that the urgency of the matter prevented the investigation of the matter using only other investigative procedures - The court stated that, in addition, the judge must also be satisfied that the authorization was in the best interests of justice - See paragraphs 14 to 16.

Criminal Law - Topic 5275

Evidence - Interception of private communications - Application for authorization - Confidentiality of supporting material - An accused objected to lawfully intercepted private communications being admitted into evidence at a preliminary inquiry - During cross-examination of the witness introducing the communications, the New Brunswick Provincial Court disallowed questions from the accused's lawyer which would circumvent the intention of Parliament to keep the documents related to the authorization application private - See paragraphs 20 to 26.

Evidence - Topic 1125

Relevant facts - Relevance and materiality - Relevance of evidence offered - General - The New Brunswick Provincial Court referred to the requirement that, to be admissible, evidence must be relevant - See paragraph 28.

Criminal Law - Topic 5310

Evidence - Inadmissible private communications - Practice - Admission of admissible interceptions - The police validly obtained an authorization to intercept private communications, without reference in the application to any state of emergency - The accused objected to the intercepted communications being admitted into evidence at the preliminary inquiry intercepted communications being admitted into evidence - The New Brunswick Provincial Court allowed the accused to cross-examine the witness introducing the communications as to whether an emergency existed - The court stated that any such questions must be relevant - See paragraphs 27 to 33.

Criminal Law - Topic 5298

Evidence - Inadmissible private communications - Admissible interceptions - Evidence and proof - Several lawfully intercepted private communications were in a foreign dialect - The accused objected to the admission into evidence of the English transcripts of the conversations, because neither the tapes from which they were made nor the handwritten notes of the transcriber were tendered into evidence - The New Brunswick Provincial Court held that both the transcripts and the tapes should be admitted into evidence - See paragraphs 38 to 45.

Evidence - Topic 1582

Hearsay rule - Exceptions - Business records, regular entries - Records made in the regular course of business - Telephone company policy was to destroy original billings for long distance calls after three months from issue - The New Brunswick Provincial Court held that photocopies of the original billings to various subscribers were records made in the ordinary course of business - The court admitted the photocopies into evidence, particularly where notice was given pursuant to s. 30(7) of the Canada Evidence Act - See paragraphs 46 to 48.

Criminal Law - Topic 5298

Evidence - Inadmissible private communications - Admissible interceptions - Evidence and proof - Conversations of an accused, mainly in a foreign dialect, were recorded by the police pursuant to a judicial authorization to intercept private communications - Copies of composite tapes of conversations, as well as the English transcript of the tapes, were served on the accused - The accused objected to the admission of the transcript into evidence at a preliminary inquiry, because it was not in the language used - The New Brunswick Provincial Court held that the transcripts were admissible, where the accused had an opportunity to know the evidence and prepare his defence - See paragraphs 50 to 54.

Criminal Law - Topic 5301

Evidence - Inadmissible private communications - Notice of intention to offer the communication as evidence - The accused were served with notice of the Crown's intention to introduce judicially authorized intercepted private communications into evidence at a preliminary inquiry - The New Brunswick Provincial Court discussed what constituted reasonable notice in the circumstances - See paragraphs 62 to 63.

Criminal Law - Topic 5285

Evidence - Interception of private communications - Authority for - Renewals - The New Brunswick Provincial Court considered the argument whether, on an application for renewal of an authorization to intercept communications pursuant to s. 178.13(4) of the Criminal Code, the same circumstances must exist as did at the time of the original application - The Court stated that the requirements for renewal were set out in s. 178.13(2) - Criminal Code, R.S.C. 1970, c. C-34, s. 178.12(1)(g) - See paragraphs 64 to 65.

Criminal Law - Topic 5298

Evidence - Inadmissible private communications - Admissible interceptions - Evidence and proof - The Crown sought to admit judicially authorized intercepted private communications at a preliminary inquiry - The New Brunswick Provincial Court discussed whether proof of the status of the person who made the application for the authorization as a duly and specially designated agent for that purpose, was necessary - See paragraphs 55 to 59.

Words and Phrases

Reasonable notice - The New Brunswick Provincial Court discussed the meaning of the phrase "reasonable notice" as found in s. 178.16(4) of the Criminal Code, R.S.C. 1970, c. C-34 - See paragraphs 62 to 63.

Cases Noticed:

R. v. Cloutier (1979), 28 N.R. 1 (1980), 12 C.R.(3d) 10, refd to. [para. 29].

R. v. Rowbotham, (1978), 2 C.R.(3d) 244, consd. [para. 45].

R. v. Ouellet and Rioux, 33 C.C.C.(2d) 417, consd. [para. 50].

R. v. Ma, Ho and Lai, 28 C.C.C.(2d) 16, consd. [para. 50].

R. v. Wai Ting Li et al. (No. 1), [1976] W.W.R. 128, consd. [para. 50].

R. v. Dass, 39 C.C.C.(2d) 465, consd. [para. 51].

R. v. Forsyth, 33 C.C.C.(2d) 523, consd. [para. 56].

R. v. Marcotte (1976), 11 Nfld. & P.E.I.R. 469; 22 A.P.R. 469, consd. [para. 59].

R. v. Wong (No. 1) (1976), 33 C.C.C.(2d) 506 (B.C.S.C.), consd. [para. 61].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 178.12 [paras. 13, 24 to 25, 32]; sect. 178.12(1) [para. 15]; sect. 178.12(1)(g) [para. 64]; sect. 178.13 [paras. 15, 24 to 25, 32]; sect. 178.13(1)(b) [para. 16]; sect. 178.13(2) [para. 65]; sect. 178.13(4) [para. 64]; sect. 178.14 [paras. 12, 22, 75]; sect. 178.14(1)(a)(ii) [para. 25]; sect. 178.16(4) [para. 23]; sect. 178.23(1) [para. 23].

Canada Evidence Act, R.S.C. 1970, c. E-10, sect. 30(7) [paras. 47 to 48].

Authors and Works Noticed:

Watt, Electronic Surveillance, pp. 142 [para. 71]; 143 [para. 73].

Counsel:

J. Ernest Drapeau, for the Crown;

James C. Letcher, for Dominic Sappia and Frank Zappia;

Frank McKenna, for Gerald Philion and Mike Domanico.

This matter was heard before Arseneault, P.C.J., of the New Brunswick Provincial Court, who delivered two decisions on July 2, 1980 and a third decision on July 3, 1980, at Moncton, New Brunswick.

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