R. v. Shalala (R.), (1997) 198 N.B.R.(2d) 1 (TD)

• Judge: Landry, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: February 11, 1997
• Jurisdiction: New Brunswick
• Citations: (1997), 198 N.B.R.(2d) 1 (TD)

R. v. Shalala (R.) (1997), 198 N.B.R.(2d) 1 (TD);

    198 R.N.-B.(2e) 1; 506 A.P.R. 1

MLB headnote and full text

[French language version follows English language version]

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

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

Temp. Cite: [1998] N.B.R.(2d) TBEd. MR.032

Her Majesty The Queen v. Raymond Shalala

(M/M/144/93)

(M/M/333/95)

Indexed As: R. v. Shalala (R.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Landry, J.

February 14, 1997.

Summary:

Shalala, a lawyer aged 49, was charged with conspiracy to import a narcotic contrary to s. 465(1)(c) of the Criminal Code and with laundering the proceeds of crime con­trary to s. 462.31 of the Code. At trial, Shalala challenged 19 wiretap authorizations on the ground that they failed to meet the minimum statutory requirements under s. 186(1)(a) of the Code as well as the consti­tutional requirements under s. 8 of the Char­ter.

The New Bruns­wick Court of Queen's Bench, Trial Divi­sion, held that the author­izations were valid and that Shalala's con­stitu­tional rights had not been infringed.

Criminal Law - Topic 5274

Evidence and witnesses - Interception of private communications (incl. video sur­veillance) - Application for - The police suspected that Shalala was conspiring to import narcotics - The investigation spread from New Brunswick into Prince Edward Island and Quebec - Nineteen wiretap authorizations were issued (9 in 1990, 8 in 1991 and 2 in 1992) - Shalala was charged with conspiracy to import a narcotic and with laundering the proceeds of crime - Shalala challenged the wiretap authoriz­ations on the ground, inter alia, that there had been serious non-disclosure in the first authorization application in that the New Brunswick police failed to indicate that the police in Montreal did not participate in the investigation and that no full scale participation was ever carried out in Montreal - The New Brunswick Court of Queen's Bench, Trial Division, held that the authorizations were valid - See para­graphs 49 and 50.

Criminal Law - Topic 5274

Evidence and witnesses - Interception of private communications (incl. video sur­veillance) - Application for - The police suspected that Shalala was conspiring to import narcotics - The investigation spread from New Brunswick into Prince Edward Island and Quebec - Nineteen wiretap authorizations were issued (9 in 1990, 8 in 1991 and 2 in 1992) - Shalala was charged with conspiracy to import a narcotic and with laundering the proceeds of crime - Shalala submitted that the authorizations were invalid because the police affidavits contained only that which would persuade the judge to grant the order - Exculpatory material was intentionally excluded - The New Brunswick Court of Queen's Bench, Trial Division, held that it should not be expected that "the affidavits would contain everything exculpatory about the targets of the investigation" - See paragraph 52.

Criminal Law - Topic 5274

Evidence and witnesses - Interception of private communications (incl. video sur­veillance) - Application for - The police suspected that Shalala was conspiring to import narcotics - Nineteen wiretap auth­orizations were issued over three years - Shalala was charged with conspiracy to import a narcotic and with laundering the proceeds of crime - Shalala submitted that the first 17 authorizations were invalid because, inter alia, the affidavits sworn for authorizations 18 and 19 failed to mention that the investigation had been downscaled because the police were ready to lay charges - Also, there was no mention that the monitors had been let go - The New Brunswick Court of Queen's Bench, Trial Division, held that the last two authoriz­ations were not the subject of the voir dire and that "[t]his omission is not sufficient­ly material to affect the validity of the first seventeen (17) authorizations" - See para­graph 56.

Criminal Law - Topic 5274

Evidence and witnesses - Interception of private communications (incl. video sur­veillance) - Application for - The police suspected that Shalala was conspiring to import narcotics - The Solicitor General of Canada retained a lawyer (Ellsworth) to act as his agent in the matter - Nineteen wiretap authorizations were issued over three years - Shalala was charged with conspiracy to import a nar­cotic and with laundering the proceeds of crime - Shalala submitted that the first 17 authorizations were invalid because, inter alia, Ellsworth partici­pated in the draft­ing of the police affida­vits (eg., suggesting changes and advising of the proper approach) - The New Bruns­wick Court of Queen's Bench, Trial Divi­sion, stated that "[s]urely it is the role of the agent [Ellsworth] to provide legal advice to the police" - See paragraph 57.

Criminal Law - Topic 5274

Evidence and witnesses - Interception of private communications (incl. video sur­veillance) - Application for - The police suspected that Shalala was conspiring to import narcotics - Nineteen wiretap author­izations were issued over three years - Shalala was charged with conspiracy to import a narcotic and with laundering the proceeds of crime - Shalala submitted that the first authorization had to be excluded because eight of the 20 tape recordings used in obtaining the authorization were missing - Because of the missing tapes, there could be no proper cross-examination of the police affiant for the purpose of the voir dire - The New Brunswick Court of Queen's Bench, Trial Division, declined to exclude the first authorization - See para­graph 59 to 66.

Criminal Law - Topic 5274

Evidence and witnesses - Interception of private communications (incl. video sur­veillance) - Application for - The police suspected that Shalala was conspiring to import narcotics - Over a three year period, fourteen wiretap authorizations were issued by the same New Brunswick judge - Shalala was charged with conspir­acy to import a narcotic and with launder­ing the proceeds of crime - Shalala sub­mitted that the authorizations should be excluded because the issuing judge indi­cated that he had an in-depth knowledge of the file and that he did not wish to hamper the investigation - Shalala submitted that the judge had lost his independence and impartiality - The New Brunswick Court of Queen's Bench, Trial Division, in holding that the authorizations were valid, stated that "[t]here is nothing improper in the same judge dealing with all of the applica­tions relating to an investigation, and it could be argued that it would be prefer­able" - See paragraph 67.

Criminal Law - Topic 5274.1

Evidence and witnesses - Interception of private communications (incl. video sur­veillance) - Application for - Where appli­cation based on informant's statements - The police suspected that Shalala was conspiring to import narcotics - The inves­tigation spread from New Brunswick into Prince Edward Island and Quebec - Nine­teen wiretap authorizations were issued over three years - Shalala was charged with conspiracy to import a narcotic and with laundering the proceeds of crime - Shalala submitted that one of the authoriz­ations was invalid because, inter alia, the police affidavit failed to mention that Castonguay, their agent/informant, was dead - The New Brunswick Court of Queen's Bench, Trial Division, held that the authorization was valid - The court observed that the "non-disclosure can hardly be said to vitiate the requirements of either probable cause or investigative necessity. The reality is the opposite. The death of Castonguay underscored the ongoing need for judicial authorization" - See paragraph 54.

Criminal Law - Topic 5274.4

Evidence and witnesses - Interception of private communications (incl. video sur­veillance) - Application for - Requirement of investigative necessity - Shalala was charged with conspiracy to import a nar­cotic and with laundering the proceeds of crime - Shalala challenged 17 wiretap authorizations (9 in 1990 and 8 in 1991) on the ground, inter alia, that there had been serious non-disclosure in the authoriz­ation applications in that the police failed to indicate their readiness to lay charges even before they made the first application - Shalala submitted that there was no investigative necessity because the police believed that charges could be laid on the basis of the prior consent surveil­lance and surveillance in general - The New Bruns­wick Court of Queen's Bench, Trial Divi­sion, held that the authorizations were valid - See paragraphs 41 and 42.

Criminal Law - Topic 5274.5

Evidence and witnesses - Interception of private communications (incl. video sur­veillance) - Application for - Evidence in support - Shalala was charged with con­spiracy to import a narcotic and with laun­dering the proceeds of crime - Shalala challenged 19 wiretap authorizations on the ground, inter alia, that there had been serious non-disclosure in the authorization applications in that the police misled the judge to think that Castonguay, their infor­mant, could not get close to Thibault, the main suspect - In fact, Castonguay had been excluded only at a one hour meeting between Shalala and Thibault - Also, Castonguay could set up meetings with Thibault on his own - The New Brunswick Court of Queen's Bench, Trial Division, found that Thibault mistrusted Castonguay and that Castonguay was not privy to the more sensitive discussions - Therefore, the authorizations were valid - See paragraphs 43 and 44.

Criminal Law - Topic 5274.5

Evidence and witnesses - Interception of private communications (incl. video sur­veillance) - Application for - Evidence in support - Shalala was charged with con­spiracy to import a narcotic and with laun­dering the proceeds of crime - Shalala challenged 17 wiretap authorizations on the ground, inter alia, that there had been serious non-disclosure in the authorization applications in that the police failed to inform the judge of the motivation and the reliability of the informants, eg., how Castonguay, the main informant, came to the police, how a deal was negotiated and how Castonguay's brother was a suspected drug dealer - The New Brunswick Court of Queen's Bench, Trial Division, held that the authorizations were valid - See para­graphs 45 and 46.

Criminal Law - Topic 5274.5

Evidence and witnesses - Interception of private communications (incl. video sur­veillance) - Application for - Evidence in support - Shalala was charged with con­spiracy to import a narcotic and with laun­dering the proceeds of crime - Shalala challenged 17 wiretap authorizations (9 in 1990 and 8 in 1991) on the ground, inter alia, that there had been serious non-dis­closure in the authorization applications - Shalala claimed that, in their first applica­tion in 1991, the police implied that the current investigation was a con­tinuation of the 1990 investigation - Shalala submitted that, in reality, the 1991 applications were part of a new and separ­ate investigation even though it involved the same targets - The New Brunswick Court of Queen's Bench, Trial Division, noted that the initial 1991 application referred to and relied upon all previous affidavits - The court held that the author­izations were valid - See paragraphs 47 and 48.

Criminal Law - Topic 5276

Evidence and witnesses - Interception of private communications (incl. video sur­veillance) - Application for - Who may apply - The police suspected that Shalala was conspiring to import narcotics - The Solicitor General of Canada retained a lawyer (Ellsworth) to act as his agent in the matter (ss. 178.12(1) and 178.23 of the Criminal Code) - Ellsworth obtained 19 wiretap authorizations over three years - Shalala was charged with conspiracy to import a narcotic and with laundering the proceeds of crime - Shalala questioned the validity of Ellsworth's designation as agent - The New Brunswick Court of Queen's Bench, Trial Division, held that Ellsworth's designation was valid and that he had the required designation to apply for the authorizations - See paragraphs 68 and 69.

Cases Noticed:

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161; 60 C.C.C.(3d) 161; 80 C.R.(3d) 317; 50 C.R.R. 206, consd. [para. 23].

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322; 53 C.C.C.(3d) 1; 74 C.R.(3d) 281; 45 C.R.R. 278; 65 D.L.R.(4th) 240, refd to. [para. 23].

R. v. Duarte - see R. v. Sanelli, Duarte and Fasciano.

R. v. Fasciano - see R. v. Sanelli, Duarte and Fasciano.

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; [1984] 6 W.W.R. 577; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; 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. [para. 23].

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

R. v. Hachey (T.) (1993), 132 N.B.R.(2d) 251; 337 A.P.R. 251 (T.D.), refd to. [para. 23].

R. v. Smyk (K.W.) et al. (1993), 88 Man.R.(2d) 203; 51 W.A.C. 203; 86 C.C.C.(3d) 63 (C.A.), refd to. [para. 23].

R. v. Pleich (1980), 55 C.C.C.(2d) 13 (Ont. C.A.), refd to. [para. 23].

R. v. Arviv (1987), 37 C.C.C.(3d) 369 (Ont. H.C.), refd to. [para. 23].

R. v. Land (1990), 55 C.C.C.(3d) 382 (Ont. H.C.), refd to. [para. 23].

R. v. Todoruk (1992), 78 C.C.C.(3d) 139 (B.C.S.C.), refd to. [para. 23].

R. v. Sismey (1990), 55 C.C.C.(3d) 281 (B.C.C.A.), refd to. [para. 23].

R. v. Silverstrone (1991), 2 B.C.A.C. 195; 5 W.A.C. 195; 66 C.C.C.(3d) 125 (C.A.), refd to. [para. 23].

R. v. Silvestrone - see R. v. Silverstrone.

R. v. Jones, [1991] B.C.J. No. 2911 (S.C.), refd to. [para. 23].

R. v. Brunelle (1990), 55 C.C.C.(3d) 347 (B.C.S.C.), refd to. [para. 23].

R. v. Whitley and Hunter (1987), 34 C.C.C.(3d) 529 (Ont. H.C.), refd to. [para. 23].

R. v. Grabowski, [1985] 2 S.C.R. 434; 63 N.R. 32; 22 D.L.R.(4th) 725; 22 C.C.C.(3d) 449, refd to. [para. 23].

R. v. Lachance, [1990] 2 S.C.R. 1490; 116 N.R. 325; 43 O.A.C. 241; 36 Q.A.C. 243; 60 C.C.C.(3d) 449; 80 C.R.(3d) 374; 50 C.R.R. 260, refd to. [para. 23].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; [1986] 1 W.W.R. 481; 23 C.C.C.(3d) 289; 48 C.R.(3d) 289; 24 D.L.R.(4th) 536; 36 M.V.R. 240; 69 B.C.L.R.(2d) 145; 18 C.R.R. 30, refd to. [para. 23].

R. v. Généreux, [1992] 1 S.C.R. 259; 133 N.R. 241; 70 C.C.C.(3d) 1; 88 D.L.R.(4th) 110, refd to. [para. 23].

Lippé et autres v. Québec (Procureur général) et autres, [1991] 2 S.C.R. 114; 128 N.R. 1; 39 Q.A.C. 241; 64 C.C.C.(3d) 513; 5 C.R.R.(2d) 31; 5 M.P.L.R.(2d) 113, refd to. [para. 23].

R. v. Lippé - see Lippé et autres v. Québec (Procureur général) et autres.

R. v. Gray (L.M.) (1993), 85 Man.R.(2d) 211; 41 W.A.C. 211; 81 C.C.C.(3d) 174 (C.A.), refd to. [para. 23].

R. v. Baylis (1988), 66 Sask.R. 268; 43 C.C.C.(3d) 514 (C.A.), refd to. [para. 23].

Shumiatcher v. Saskatchewan (Attorney General) (1960), 129 C.C.C. 267 (Sask. Q.B.), refd to. [para. 23].

R. v. Lajoie (1983), 50 A.R. 140; 8 C.C.C.(3d) 353 (N.W.T.S.C.), refd to. [para. 23].

R. v. Dodge (1984), 50 Nfld. & P.E.I.R. 349; 149 A.P.R. 349; 16 C.C.C.(3d) 385 (Nfld. T.D.), refd to. [para. 23].

R. v. Kehr (1906), 11 C.C.C. 52 (Ont. C.A.), refd to. [para. 23].

R. v. Greffe, [1990] 1 S.C.R. 755; 107 N.R. 1; 107 A.R. 1; [1990] 3 W.W.R. 577; 55 C.C.C.(3d) 161; 75 C.R.(3d) 257; 46 C.R.R. 1; 73 Alta. L.R.(2d) 97, refd to. [para. 23].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; [1987] 3 W.W.R. 699; 56 C.R.(3d) 193; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 13 B.C.L.R.(2d) 1; 28 C.R.R. 122, refd to. [para. 23].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 12 O.R.(3d) 182; 79 C.C.C.(3d) 482; 20 C.R.(4th) 1; 14 C.R.R.(2d) 338; 43 M.V.R.(2d) 1 (C.A.), refd to. [para. 23].

R. v. Donaldson (1990), 58 C.C.C.(3d) 294 (B.C.C.A.), refd to. [para. 23].

R. v. Innocente et al. (1992), 113 N.S.R.(2d) 256; 309 A.P.R. 256 (C.A.), refd to. [para. 23].

R. v. Turcotte (1987), 60 Sask.R. 289; 39 C.C.C.(3d) 193 (C.A.), refd to. [para. 23].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1; [1993] 1 W.W.R. 193; 5 Alta. L.R.(3d) 232; 76 C.C.C.(3d) 481; 16 C.R.(4th) 273; 12 C.R.R.(2d) 65; 40 M.V.R.(2d) 204, refd to. [para. 23].

R. v. Acciavatti (M.J.) (1993), 62 O.A.C. 137; 80 C.C.C.(3d) 109; 44 M.V.R.(2d) 66 (C.A.), refd to. [para. 23].

R. v. Leclair and Ross, [1989] 1 S.C.R. 3; 91 N.R. 81; 31 O.A.C. 321; 46 C.C.C.(3d) 129; 67 C.R.(3d) 209; 37 C.R.R. 369, refd to. [para. 23].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; [1990] 5 W.W.R. 1; 77 C.R.(3d) 145; 57 C.C.C.(3d) 1; 47 B.C.L.R.(2d) 1; 49 C.R.R. 114, refd to. [para. 23].

R. v. Elshaw, [1991] 3 S.C.R. 24; 128 N.R. 241; 3 B.C.A.C. 81; 7 W.A.C. 81; 67 C.C.C.(3d) 97; 59 B.C.L.R.(2d) 143, refd to. [para. 23].

R. v. Ironeagle (1989), 76 Sask.R. 253; 49 C.C.C.(3d) 339 (C.A.), refd to. [para. 23].

R. v. Genest, [1989] 1 S.C.R. 59; 91 N.R. 161; 19 Q.A.C. 163; 45 C.C.C.(3d) 385; 67 C.R.(3d) 224; 37 C.R.R. 252, refd to. [para. 23].

R. v. Myers (G.L.) (1993), 126 N.S.R.(2d) 237; 352 A.P.R. 237 (S.C.), refd to. [para. 23].

R. v. Richard (A.N.) (1995), 141 N.S.R.(2d) 103; 403 A.P.R. 103; 99 C.C.C.(3d) 441 (C.A.), refd to. [para. 23].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161; 97 C.C.C.(3d) 385; 124 D.L.R.(4th) 7; 28 C.R.R.(2d) 244; 38 C.R.(4th) 265, refd to. [para. 23].

R. v. Hancock (1976), 36 C.R.N.S. 102 (B.C.C.A.), refd to. [para. 23].

R. v. Antaya, [1983] C.S.P. 1107 (Que. Ct. Sess. Peace), refd to. [para. 23].

R. v. Turangan (1976), 32 C.C.C.(2d) 249 (B.C.S.C.), refd to. [para. 23].

R. v. Li (No. 1), [1976] 6 W.W.R. 128 (B.C. Co. Ct.), refd to. [para. 23].

R. v. Di Salvo (1977), 35 C.C.C.(2d) 207 (B.C. Co. Ct.), refd to. [para. 23].

R. v. Comisso (1977), 33 C.C.C.(2d) 1 (B.C. Prov. Ct.), refd to. [para. 23].

R. v. Miller and Thomas (No. 2) (1975), 28 C.C.C.(2d) 115 (B.C. Co. Ct.), refd to. [para. 23].

R. v. Anderson, [1992] B.C.J. No. 1461 (S.C.), refd to. [para. 23].

R. v. Pasaluko, [1992] B.C.J. No. 2757 (S.C.), refd to. [para. 23].

R. v. Heikel, [1990] A.J. No. 1038 (Q.B.), refd to. [para. 23].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81, dist. [para. 23].

R. v. Hiscock (G.); R. v. Sauvé (P.) (1991), 51 Q.A.C. 304; 68 C.C.C.(3d) 182 (C.A.), consd. [para. 24].

R. v. Villeneuve (A.) (1992), 50 Q.A.C. 278; 77 C.C.C.(3d) 171 (C.A.), refd to. [para. 24].

R. v. Pasaluko (1992), 77 C.C.C.(3d) 190 (B.C.S.C.), refd to. [para. 24].

R. v. Parsons (1977), 37 C.C.C.(2d) 497 (Ont. C.A.), refd to. [para. 24].

R. v. Laverty (1979), 47 C.C.C.(2d) 60 (Ont. C.A.), refd to. [para. 24].

R. v. Biasi et al. (No. 2) (1981), 66 C.C.C.(2d) 563 (B.C.S.C.), refd to. [para. 24].

R. v. Sunila and Soleyman (No. 2) (1986), 73 N.S.R.(2d) 308; 176 A.P.R. 308; 26 C.C.C.(3d) 331 (T.D.), refd to. [para. 24].

R. v. McLarty (No. 3) (1978), 45 C.C.C.(2d) 184 (Ont. G.S.P.), refd to. [para. 24].

R. v. Durette et al., [1994] 1 S.C.R. 469; 163 N.R. 321; 70 O.A.C. 1; 88 C.C.C.(3d) 1, refd to. [para. 24].

R. v. Madrid (L.A.) et al. (1994), 48 B.C.A.C. 271; 78 W.A.C. 271 (C.A.), consd. [para. 24].

R. v. Bisson (J.) et autres (1994), 60 Q.A.C. 173; 87 C.C.C.(3d) 440 (C.A.), affd. [1994] 3 S.C.R. 1097; 173 N.R. 237; 65 Q.A.C. 241; 94 C.C.C.(3d) 94, consd. [para. 24].

R. v. Morrison (P.) (1989), 34 O.A.C. 50; 50 C.C.C.(3d) 353 (C.A.), refd to. [para. 24].

R. v. Paulson (J.Y.) (1995), 57 B.C.A.C. 217; 94 W.A.C. 217; 97 C.C.C.(3d) 344 (C.A.), consd. [para. 24].

R. v. Steel (R.K.) et al. (1995), 174 A.R. 241; 102 W.A.C. 241; 102 C.C.C.(3d) 260 (C.A.), refd to. [para. 24].

R. v. Proudfoot (T.) - see R. v. Steel (R.K.) et al.

R. v. Rosebush (F.E.) et al. (1992), 131 A.R. 282; 25 W.A.C. 282; 77 C.C.C.(3d) 241 (C.A.), consd. [para. 24].

R. v. Mann, [1995] O.J. No. 474 (C.A.), refd to. [para. 24].

R. v. Gill (1980), 56 C.C.C.(2d) 169 (B.C.C.A.), refd to. [para. 24].

R. v. Moore (G.P.) et al. (1993), 27 B.C.A.C. 253; 45 W.A.C. 253; 81 C.C.C.(3d) 161 (C.A.), consd. [para. 24].

R. v. Peck, [1995] Y.J. No. 23 (S.C.), consd. [para. 24].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1, refd to. [para. 24].

R. v. Bisson (J.) et autres, [1994] 3 S.C.R. 1097; 173 N.R. 237; 65 Q.A.C. 241; 94 C.C.C.(3d) 94, appld. [para. 27].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 4].

Criminal Code, R.S.C. 1985, c. C-46, sect. 186(1)(a), sect. 186(1)(b) [para. 3].

Authors and Works Noticed:

Ewaschuk, E.G., Criminal Pleadings and Practice in Canada (2nd Ed.), para. 4:2075 [para. 31].

Counsel:

G. Scott Ellsworth, for the Crown;

Morris Manning, Q.C., for the accused.

This voir dire was heard on December 2 to 6, 9 to 13, 1996, January 13 to 17, 20 to 22, 27 to 31 and February 11, 1997, by Landry, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following deci­sion on February 14, 1997.