R. v. Smyk (K.W.) et al., (1993) 88 Man.R.(2d) 303 (CA)

• Judge: Scott, C.J.M., Philp and Twaddle, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 17, 1993
• Jurisdiction: Manitoba
• Citations: (1993), 88 Man.R.(2d) 303 (CA);1993 CanLII 3370 (MB CA);[1994] 1 WWR 513;86 CCC (3d) 63;[1993] MJ No 483 (QL);51 WAC 303;88 Man R (2d) 303

R. v. Smyk (K.W.) (1993), 88 Man.R.(2d) 303 (CA);

    51 W.A.C. 303

MLB headnote and full text

Her Majesty The Queen (respondent) v. Kevin William Smyk, Dale Jason Sweeney and Lionel Reagan Langan (accused/appellants)

(Suit No. A.R. 93-30-01125; A.R. 93-30-01127; A.R. 93-30-01128)

Indexed As: R. v. Smyk (K.W.) et al.

Manitoba Court of Appeal

Scott, C.J.M., Philp and Twaddle, JJ.A.

November 15, 1993.

Summary:

The accused were all convicted of two counts of conspiracy to attempt to obstruct justice and two counts of attempting to obstruct justice. The accused Smyk was also convicted of trafficking in a narcotic and possession of a narcotic for the purpose of trafficking. Smyk was sentenced to a total of five years' imprisonment, Sweeney to a total of three years and Langan to a total of two years. The accused appealed against convic­tion and sentence. Sweeney later abandoned his conviction appeal, then applied to with­draw his abandonment and adopt the argu­ments presented by the other accused. Fol­lowing the hearing of the appeals, the accused applied for interim release.

The Manitoba Court of Appeal allowed Langan's appeal, quashed the convictions and entered acquittals. The court allowed Swee­ney's application to revive his conviction appeal. The court allowed the appeals of Smyk and Sweeney against their convictions for conspiracy and obstructing justice charges and quashed the convictions. The court ordered a new trial on the obstructing justice charges, with a direction that acquit­tals be entered on the conspiracy charges. The court dismissed Smyk's appeals from conviction on the narcotics charges. It was unnecessary to resolve the accused's applica­tions for release.

Criminal Law - Topic 5274.4

Evidence - Witnesses - Interception of private communications - Application for - Request of investigative necessity - The Manitoba Court of Appeal held that the grounds for granting a wiretap author­iza­tion referred to in ss. 185(1)(h) and 186(1)(b) of the Criminal Code were not cumulative requirements - The applicant for an authorization did not have to estab­lish that all other investigative procedures were utterly exhausted in order to meet the necessity requirement of s. 186(1)(b) - The court referred to principles which have been accepted and applied by the courts in the determination of whether or not the information put before an authorizing judge established the necessity requirement - See paragraphs 22 to 34, 36.

Criminal Law - Topic 5302

Evidence - Witnesses - Inadmissible private communications - Inadmissible interceptions - Unlawful and unreasonable interceptions - The affidavit supporting a wiretap authorization application referred to information received from confidential sources using ambiguous, uncertain state­ments having no support or confirmation - There was an absence of any connection or relevance of the allegations to the offence being investigated - The Manitoba Court of Appeal ruled it unsafe to conclude that named surveillance attempts were part of the ongoing investigation of the suspected offence - The trial judge erred in finding that the authorizing judge could have granted the authorization - There was no proven investigative necessity for the making of an authorization - Urgency was not raised and the facts stated did not adequately deal with other investigative procedures - The interceptions were thus unlawfully made - See paragraphs 38 to 53.

Cases Noticed:

R. v. Wilson, [1983] 2 S.C.R. 594; 51 N.R. 321; 26 Man.R.(2d) 194; 9 C.C.C.(3d) 97, refd to. [para. 14].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 60 C.C.C.(3d) 161; 80 C.R.(3d) 317; 50 C.R.R. 206, appld. [para. 14].

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; 65 D.L.R.(4th) 240; 71 O.R.(2d) 575; 74 C.R.(3d) 281; 45 C.R.R. 278, refd to. [para. 16].

R. v. Miller and Thomas (1975), 23 C.C.C.(2d) 257 (B.C.S.C.), refd to. [para. 19].

R. v. Donnelly (1976), 29 C.C.C.(2d) 58 (Alta. T.D.), refd to. [para. 19].

R. v. Welsh and Ianuzzi (No. 6) (1977), 32 C.C.C.(2d) 363 (Ont. C.A.), refd to. [para. 19].

R. v. Robinson, [1977] 4 W.W.R. 697 (B.C. Co. Ct.), refd to. [para. 21].

R. v. Lalonde (1978), 50 C.C.C.(2d) 183 (Que. S.C.), refd to. [para. 21].

R. v. Madsen, [1988] N.W.T.R. 82 (S.C.), refd to. [para. 21].

R. v. Playford (1987), 24 O.A.C. 161; 63 O.R.(2d) 289 (C.A.), refd to. [para. 21].

R. v. Morrison (1989), 34 O.A.C. 50; 50 C.C.C.(3d) 353 (C.A.), refd to. [para. 21].

R. v. Land (1990), 55 C.C.C.(3d) 382 (Ont. H.C.), refd to. [para. 21].

R. v. Mikituk et al. (1992), 101 Sask.R. 286 (Q.B.), refd to. [para. 21].

R. v. Petrisor (R.N.) (1992), 106 Sask.R. 33 (Q.B.), refd to. [para. 21].

R. v. Commisso, [1983] 2 S.C.R. 121; 49 N.R. 26, refd to. [para. 24].

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. 26].

R. v. Lachance, [1990] 2 S.C.R. 1490; 116 N.R. 325; 43 O.A.C. 241; 36 O.A.C. 243, refd to. [para. 27].

People v. Baris (1986), 500 N.Y.S.2d 572 (A.D. 4 Dept.), refd to. [para. 29].

R. v. Hiscock; R. v. Sauvé (1992), 46 Q.A.C. 263; 72 C.C.C.(3d) 303 (C.A.), refd to. [para. 31].

R. v. Rosebush (F.E.) et al. (1992), 131 A.R. 282; 77 C.C.C.(3d) 241 (C.A.), refd to. [para. 31].

R. v. Todoruk (1992), 78 C.C.C.(3d) 139 (B.C.S.C.), refd to. [para. 31].

R. v. Steel (R.K.) et al. (1993), 136 A.R. 267 (Q.B.), refd to. [para. 31].

R. v. Sheppe, [1980] 2 S.C.R. 22; 31 N.R. 437, refd to. [para. 57].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, Part VI [para. 16]; sect. 185(1)(c) [para. 17]; sect. 185(1)(h) [paras. 17, 20]; sect. 186(1)(a) [para. 17]; sect. 186(1)(b) [paras. 17-18, 20, 23, 45]; sect. 679(1) [para. 61].

Counsel:

Z.I. Garber, for the appellant, Smyk;

S.M. Merrick and M.S. Makar, for the appellant, Sweeney;

K.A. Strang, for the appellant, Langan;

G.D. Joyal and B.E. Clarke, for the respondent.

This appeal was heard on September 17, 1993, before Scott, C.J.M., Philp and Twaddle, JJ.A., of the Manitoba Court of Appeal. The decision of the court was delivered on November 15, 1993, and the following opinions were filed:

Philp, J.A. (Scott, C.J.M., concurring) - see paragraphs 1 to 63;

Twaddle, J.A. - see paragraphs 64 to 65.