R. v. Shalala (R.), (1997) 198 N.B.R.(2d) 93 (TD)

• Judge: Landry, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: March 10, 1997
• Jurisdiction: New Brunswick
• Citations: (1997), 198 N.B.R.(2d) 93 (TD)

R. v. Shalala (R.) (1997), 198 N.B.R.(2d) 93 (TD);

    198 R.N.-B.(2e) 93; 506 A.P.R. 93

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [1998] N.B.R.(2d) TBEd. MR.034

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.

March 10, 1997.

Summary:

Shalala was charged with conspiracy to import a narcotic and laundering pro­ceeds of crime. The accused moved for orders exclud­ing wiretap evidence on several grounds.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the motions.

Civil Rights - Topic 1373

Security of the person - Police surveillance - Interception of private communications - [See Civil Rights - Topic 3107 and third and fourth Criminal Law - Topic 5273.1 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreason­able search and seizure defined - Section 189(6) of the Criminal Code rendered intercepted privileged information inad­missible as evidence without the consent of the person enjoying the privilege - An accused argued, inter alia, that intercep­tions were unlawfully obtained in breach of his s. 8 Charter rights because the inter­ceptions were made in relation to privi­leged communications between husband and wife thus resulting in a breach of s. 189(6) of the Criminal Code - The New Brunswick Court of Queen's Bench, Trial Division, held that "[t]he privileged charac­ter of spousal communications is protected by providing such evidence as inadmissible without the consent of the person who enjoys the privilege....The interception of any such privileged com­munications does not render the authoriz­ation orders pursu­ant to which the inter­ceptions were made invalid or the rest of the interceptions inadmissible." - See para­graphs 50 to 57.

Civil Rights - Topic 1646

Property - Search and seizure - Unreason­able search and seizure defined - [See second Criminal Law - Topic 5273.1 ].

Civil Rights - Topic 3107

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Void for vagueness doctrine - Section 186(4)(d) of the Criminal Code provided that an authorization to intercept a private communication should contain such other terms and conditions as the judge considered advisable in the public interest - An accused challenged the consti­tutional validity of s. 186(4)(d), arguing that the term "public interest" was unduly vague and therefore violated s. 7 of the Charter - The New Brunswick Court of Queen's Bench, Trial Division, rejected the argu­ment - Section 186(4)(d) could not be read in isolation but had to be considered in the full context of the totality of s. 186(4) - See paragraphs 8 to 13.

Civil Rights - Topic 8626

Canadian Charter of Rights and Freedoms - Regulation of guaranteed rights - Vague­ness rule - [See Civil Rights - Topic 3107 ].

Criminal Law - Topic 5273.1

Evidence and witnesses - Interception of private communications - Minimization - The New Brunswick Court of Queen's Bench, Trial Division, stated that "[w]hile there is vested in the authorizing judge a discretionary authority to provide for terms of minimization, there is no requirement that specific terms of minimization be included in such authorization orders to intercept private communications" - See paragraph 25.

Criminal Law - Topic 5273.1

Evidence and witnesses - Interception of private communications - Minimization - An accused attacked electronic surveillance authorizations on the basis, inter alia, that they lacked sufficient minimization re­quirements as required by the Criminal Code and s. 8 of the Charter and failed to con­tain limiting conditions with respect to persons and places thereby infringing s. 186(4) of the Criminal Code - The New Brunswick Court of Queen's Bench, Trial Division, rejected the arguments - The authorization orders did contain minimization terms such as live monitoring and with respect to pay telephone use - The authorization orders and scope of interceptional activity permitted thereby were further minimized by limiting inter­ceptions to certain named persons and places resorted to by those persons - The authorizations conformed to the guidelines set down by the Supreme Court of Canada in R. v. Garofoli et al. and R. v. Thompson et al. - See paragraphs 14 to 38.

Criminal Law - Topic 5273.1

Evidence and witnesses - Interception of private communications - Minimization - An accused argued that the electronic surveillance authorizations issued for his law office and residence should be set aside because they were over broad and unduly conferred excessive discretion onto enforcement officials contrary to s. 7 of the Charter - He argued, inter alia, that they failed to prohibit interception of privileged solicitor-client communications and did not attempt to minimize the intru­sion on innocent members of the public - The New Brunswick Court of Queen's Bench, Trial Division, rejected the argu­ments - The police took exacting measures to ensure the protection of solicitor-client privilege and the minimization of all com­munications which might not be pertinent to their investigation - They adhered to minimization requirements imposed by authorization orders - The rights of inno­cent third parties were sufficiently pro­tected by the minimization requirements of live monitoring at the accused's law office and residence - See paragraphs 14 to 38.

Criminal Law - Topic 5273.1

Evidence and witnesses - Interception of private communications - Minimization - An accused argued that the electronic surveillance authorizations issued for his law office and residence should be set aside because they were over broad and unduly conferred excessive discretion onto enforcement officials contrary to s. 7 of the Charter - The Crown sought to intro­duce 32 out of approximately 25,000 tele­phone interceptions at the law office and four out of the 22,000 (plus) interceptions at the accused's residence - The New Brunswick Court of Queen's Bench, Trial Division, held that the numbers themselves were not indicative of the lack of adequate minimization clauses and were not an indication that the manner of execution of the search in relation to the invasion of privacy was unauthorized - See paragraphs 39 to 49.

Criminal Law - Topic 5273.1

Evidence and witnesses - Interception of private communications - Minimization - [See first Criminal Law - Topic 5280 ].

Criminal Law - Topic 5280

Evidence and witnesses - Interception of private communications - Solicitor's office or residence - The New Brunswick Court of Queen's Bench, Trial Division, agreed that "[i]t should be noted that the legisla­tion seeks only to 'protect' privileged communications between solicitors and clients. The Code does not seek to prohibit or preclude the interception of such com­munications, or impugn Authorizations under which such communications are intercepted, but only to minimize the inter­ception of such communications. The fact that a particular communication is or could be one to which solicitor-client privilege attaches may not be readily ascertainable at first glance. As such, all types of private communications may be intercepted initially, but appropriately terminated once it is determined that they are communica­tions to which the solicitor-client privilege attaches" - See paragraphs 33 and 34.

Criminal Law - Topic 5280

Evidence and witnesses - Interception of private communications - Solicitor's office or residence - [See third Criminal Law - Topic 5273.1 ].

Criminal Law - Topic 5281

Evidence and witnesses - Interception of private communications - Where solicitor-client privilege involved - Electronic sur­veillance authorizations allowed for the interception of facsimile transmissions to and from the accused lawyer - 1,066 were intercepted and printed - Two police officers grouped them as "privileged", "pertinent" and "non pertinent" - The police keep copies of the pertinent ones and the others and the tapes were placed in sealed envelopes and not opened until before one of the officer's testimony - The accused argued that the facsimiles should have been submitted to a judicial officer for review - The New Brunswick Court of Queen's Bench, Trial Division, held there was no merit in the argument - The police were very diligent in the interception of the facsimiles and made genuine efforts to protect the solicitor-client privilege attach­ing to some of them - The method used was innovative and effective - See para­graphs 58 to 61.

Criminal Law - Topic 5281

Evidence and witnesses - Interception of private communications - Where solicitor-client privilege involved - [See third Cri­minal Law - Topic 5273.1 and first Criminal Law - Topic 5280 ].

Criminal Law - Topic 5286

Evidence and witnesses - Interception of private communications - Authority for - Scope of - [See Criminal Law - Topic 5304 ].

Criminal Law - Topic 5302

Evidence and witnesses - Inadmissible private communications - Inadmissible interceptions - Unlawful and unreasonable interceptions - [See Civil Rights - Topic 1646 , second, third and fourth Criminal Law - Topic 5273.1 and Criminal Law - Topic 5304 ].

Criminal Law - Topic 5304

Evidence and witnesses - Inadmissible private communications - Inadmissible interceptions - Lack of authority - An accused argued that the persons who carried out the unlawful search and seizure of intercepted private communications involving him were not designated to intercept private communications by s. 186(5) of the Criminal Code - Three Com­manding Officers of the RCMP involved in the investigation were designated - The designation was to the Commanding Officer and "any person acting under the authority of the said peace officer" - The New Brunswick Court of Queen's Bench, Trial Division, held the right to intercept included persons under the scope or ambit of the general authority conferred upon such persons by the Commanding Officer -All those who performed interceptions fell within the ambit of the designations - See paragraphs 67 to 74.

Criminal Law - Topic 5305

Evidence and witnesses - Inadmissible private communications - Inadmissible interceptions - Privileged communications -[See Civil Rights - Topic 1646 , third Criminal Law - Topic 5273.1 , first Crim­inal Law - Topic 5280 and first Criminal Law - Topic 5281 ].

Evidence - Topic 4181

Witnesses - Privilege - Husband and wife - General - [See first Civil Rights - Topic 1646 ].

Evidence - Topic 4245.3

Witnesses - Privilege - Lawyer-client communications - Privilege - Law office searches - [See third Criminal Law - Topic 5273.1 , first Criminal Law - Topic 5280 and first Criminal Law - Topic 5281 ].

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, refd to. [para. 6].

R. v. Finlay and Grellette (1985), 11 O.A.C. 279; 23 C.C.C.(3d) 48 (C.A.), refd to. [para. 6].

R. v. Lloyd and Lloyd, [1981] 2 S.C.R. 645; 39 N.R. 474; 64 C.C.C.(2d) 169, refd to. [para. 6].

R. v. Jean and Piesinger (1979), 15 A.R. 147; 46 C.C.C.(2d) 176 (C.A.), affd. [1980] 1 S.C.R. 400; 31 N.R. 410; 20 A.R. 360; 51 C.C.C.(2d) 192, refd to. [para. 6].

R. v. Hiscock (G.); R. v. Sauvé (P.) (1992), 46 Q.A.C. 263; 72 C.C.C.(3d) 303 (C.A.), refd to. [para. 6].

R. v. Chambers, [1986] 2 S.C.R. 29; 67 N.R. 382; 52 C.R.(3d) 394, refd to. [para. 6].

R. v. Thompson et al., [1990] 2 S.C.R. 1111; 114 N.R. 1; 59 C.C.C.(3d) 225; [1990] 6 W.W.R. 481; 49 B.C.L.R.(2d) 321; 80 C.R.(3d) 129; 73 D.L.R.(4th) 596; 50 C.R.R. 1, refd to. [para. 6].

R. v. Morales (M.), [1992] 3 S.C.R. 711; 144 N.R. 176; 51 Q.A.C. 161; 77 C.C.C.(3d) 90; 17 C.R.(4th) 74, ad­dendum 147 N.R. 335, dist. [para. 6].

R. v. Wise, [1992] 1 S.C.R. 527; 133 N.R. 161; 51 O.A.C. 351; 70 C.C.C.(3d) 193, refd to. [para. 6].

R. v. Heikel et al. (No. 1) (1990), 110 A.R. 104 (Q.B.), refd to. [para. 6].

R. v. Smith (C.J.) et al. (1991), 93 Nfld. & P.E.I.R. 198; 292 A.P.R. 198 (Nfld. T.D.), refd to. [para. 6].

R. v. Bouclin (1983), 27 Sask.R. 86 (Q.B.), refd to. [para. 6].

Solicitor, Re (1962), 36 D.L.R.(2d) 594 (B.C.S.C.), refd to. [para. 6].

Cox v. Canada (Attorney General), [1988] 2 C.T.C. 365 (B.C.S.C.), refd to. [para. 6].

Mutual Life Assurance Co. of Canada v. Canada (Deputy Attorney General), [1984] C.T.C. 155 (Ont. H.C.), refd to. [para. 6].

Playfair v. Canada (Deputy Minister of National Revenue), [1985] 1 C.T.C. 302 (Ont. H.C.), refd to. [para. 6].

R. v. Prousky & Biback (1986), 30 C.C.C.(3d) 353 (Ont. Prov. Ct.), refd to. [para. 6].

R. v. Lyons, Prevedoros and McGuire, [1984] 2 S.C.R. 633; 56 N.R. 6; 58 A.R. 2; 15 C.C.C.(3d) 417; 14 D.L.R.(4th) 482, refd to. [para. 7].

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. 7].

R. v. Grabowski, [1985] 2 S.C.R. 434; 63 N.R. 32; 22 C.C.C.(3d) 449, refd to. [para. 7].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 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. 7].

R. v. Chambers (1983), 9 C.C.C.(3d) 132 (B.C.C.A.), affd. (1986), 67 N.R. 382; 26 C.C.C.(3d) 353 (S.C.C.), refd to. [para. 7].

R. v. Paterson, Ackworth and Kovac (1985), 7 O.A.C. 105; 18 C.C.C.(3d) 137 (C.A.), affd. (1988), 79 N.R. 316; 23 O.A.C. 81; 39 C.C.C.(3d) 575 (S.C.C.), refd to. [para. 7].

R. v. Taylor (S.D.) (1997), 86 B.C.A.C. 224; 142 W.A.C. 224 (C.A.), refd to. [para. 7].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380; 50 C.C.C.(2d) 495, refd to. [para. 7].

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462; 141 D.L.R.(3d) 590; 70 C.C.C.(2d) 385, refd to. [para. 7].

R. v. Joubert (1992), 7 B.C.A.C. 31; 15 W.A.C. 31; 69 C.C.C.(3d) 553 (C.A.), refd to. [para. 7].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321; 104 C.C.C.(3d) 136, refd to. [para. 7].

R. v. Steel (R.K.) et al. (1995), 174 A.R. 241 (C.A.), refd to. [para. 7].

R. v. Shaw (1983), 45 N.B.R.(2d) 21; 118 A.P.R. 21; 4 C.C.C.(3d) 348 (C.A.), refd to. [para. 7].

R. v. Vrany, Zikan and Dvorak (1979), 46 C.C.C.(2d) 14 (Ont. C.A.), refd to. [para. 7].

R. v. Novis (1988), 22 O.A.C. 244; 36 C.C.C.(3d) 275, refd to. [para. 7].

R. v. Conroy (1980), 57 C.C.C.(2d) 446 (C.A.), refd to. [para. 7].

R. v. Taillefer (1995), 100 C.C.C.(3d) 1 (Que. C.A.), refd to. [para. 7].

R. v. Abizeid et al. (1981), 67 C.C.C.(2d) 373 (Que. S.C.), refd to. [para. 7].

R. v. Demeter (1975), 19 C.C.C.(2d) 321 (Ont. H.C.), refd to. [para. 7].

R. v. Miller and Thomas (No. 3) (1975), 28 C.C.C.(2d) 118 (B.C. Co. Ct.), refd to. [para. 7].

R. v. Stephenson (1979), 49 C.C.C.(2d) 219 (Sask. C.A.), refd to. [para. 7].

Colpitts v. R., [1965] S.C.R. 739 47 C.R. 176 (S.C.C.), refd to. [para. 7].

Interception of Private Communications Reference, [1984] 2 S.C.R. 697; 56 N.R. 43; 58 A.R. 39; 15 C.C.C.(3d) 466, refd to. [para. 7].

Reference Re Application for an Authoriz­ation - see Interception of Private Com­munications Reference.

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 4(3) [para. 56].

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 4]; sect. 8 [para. 3].

Criminal Code, R.S.C. 1985, c. C-46, sect. 186(2), sect. 186(3) [para. 15]; sect. 186(4) [para. 13]; sect. 186(4)(d) [para. 9]; sect. 186(5) [para. 68]; sect. 189(6) [para. 51].

Evidence Act (Can.) - see Canada Evi­dence Act.

Authors and Works Noticed:

Ewaschuk, Eugene G., Criminal Pleadings and Practice in Canada (2nd Ed. 1987), para. 4:2380 [para. 72].

Counsel:

G. Scott Ellsworth, for the Crown;

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

These motions were heard on February 14, 17-21, 24-27, 1997, at Moncton, New Bruns­wick, before Landry, J., of the New Bruns­wick Court of Queen's Bench, Trial Divi­sion, Judicial District of Moncton, who delivered the following deci­sion on March 10, 1997.