R. v. Steel (R.K.) et al., (1993) 136 A.R. 267 (QB)

• Judge: Egbert, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 07, 1993
• Citations: (1993), 136 A.R. 267 (QB)

R. v. Steel (R.K.) (1993), 136 A.R. 267 (QB)

MLB headnote and full text

Her Majesty The Queen v. Richard Kelly Steel, Douglas Calverley, Glen Peter Misko, Barry Benini, Richard Allan Hughes and Timothy Proudfoot

(Action No. 9101-2489-C4)

Indexed As: R. v. Steel (R.K.) et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Egbert, J.

January 7, 1993.

Summary:

Six persons were charged with conspiring to import and conspiring to traffic in cocaine. Some of the Crown's evidence had been obtained through telephone wiretaps. One of the accused applied for a ruling on the admissibility of the wiretap evidence.

The Alberta Court of Queen's Bench held that the evidence was admissible.

Civil Rights - Topic 1217

Security of the person - Lawful or unrea­sonable search - Unreasonable search and seizure - Wiretap evidence - The accused was named in certain wiretap authoriza­tions - The accused submitted that, inter alia, some of the authorizations were invalid under s. 8 of the Charter because they constituted unreasonable search and seizure - The accused claimed that he should not have been named as a target because there was no evidence that he had either committed or was going to commit a crime - The Crown claimed that all that was required was a crime and reasonable grounds that the interceptions would pro­vide evidence of the crime; there was no requirement that the target also be a sus­pect - The Alberta Court of Queen's Bench held that the evidence was admis­sible - See paragraphs 57 to 60.

Criminal Law - Topic 5274

Evidence and witnesses - Interception of private communications - Application for - Supporting affidavits - Material non­disclosure - The accused were charged with conspiring to import and traffic in cocaine - During the investigation, the police employed the services of an infor­mant - Authorizations for telephone wiretaps were also obtained - One of the accused applied to have the wiretap evi­dence ruled inadmissible on the ground, inter alia, that there was material nondisclosure in the supporting affidavits - The affidavits failed to disclose that an informant was cooperating, that the in­formant was being infiltrated back into the conspiracy and that considerable cash had been seized from safety deposit boxes - The Alberta Court of Queen's Bench ruled that there had not been material nondisclosure - See paragraphs 43 to 48.

Criminal Law - Topic 5274.4

Evidence and witnesses - Interception of private communications - Application for - Requirement of investigative necessity - Last resort vs. further investigative tool - Under s. 186(1)(b) of the Criminal Code, a wiretap authorization can be issued where other investigative procedures have been tried and have failed, other investiga­tive procedures are unlikely to succeed or where the urgency of the matter makes it impractical to use only other investigative techniques - A defendant submitted that an authorization should be granted only as a last resort - The Crown claimed that it was not necessary to exhaust other methods first - The authorization could be granted as a "further investigative tool" where independent and confirming evi­dence would not be otherwise available - The Alberta Court of Queen's Bench declined to accept the last resort approach - See paragraphs 30 to 38.

Criminal Law - Topic 5274.4

Evidence and witnesses - Interception of private communications - Application for - Requirement of investigative necessity - An accused was charged with conspiring to import and traffick in cocaine - The police employed wiretaps and an informant dur­ing the investigation - The accused was aware of the investigation - The surveil­lance had been detected - The accused applied to have the wiretap evidence excluded on the ground that it was not obtained as a "last resort" as required by s. 186(1)(b) of the Criminal Code - The Alberta Court of Queen's Bench held that the evidence was admissible - The wiretaps were a further investigative tool that could produce evidence to corroborate the informant's evidence - The court observed that other methods would not have been likely to succeed and there had been a degree of urgency - See paragraphs 37 to 42.

Criminal Law - Topic 5284.1

Evidence and witnesses - Interception of private communications - Authority for, "resort to" clause - The police obtained wiretap authorizations - The authorizations specified named targets - Specified loca­tions included their houses and businesses as well as public pay and cellular tele­phones - The authorizations also extended to unspecified locations through the use of a "resort to" clause - An informant also consented to the interceptions - All of the interceptions involved the informant - All but one involved named targets at spec­ified locations - An accused applied to have the wiretap evidence excluded because the interceptions were unlawful - The Alberta Court of Queen's Bench held that the interceptions were lawful and that the evidence was admissible - See para­graphs 48 to 57.

Criminal Law - Topic 5295

Evidence and witnesses - Inadmissible private communications - Admissible communications - Consent to admit into evidence - [See Criminal Law - Topic 5284.1 ].

Criminal Law - Topic 5295.3

Evidence and witnesses - Inadmissible private communications - Admissible communications - Under "resort to" clause - [See Criminal Law - Topic 5284.1 ].

Cases Noticed:

R. v. Parsons - see R. v. Charette.

R. v. Charette, [1980] 1 S.C.R. 785; 33 N.R. 158, refd to. [para. 4].

R. v. Wilson, [1983] 2 S.C.R. 594; 51 N.R. 321; 26 Man.R.(2d) 155, refd to. [para. 4].

R. v. Vanweenan - see R. v. Chesson.

R. v. Chesson, [1988] 2 S.C.R. 148; 87 N.R. 115, refd to. [para. 4].

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; 80 C.R.(3d) 317; 60 C.C.C.(3d) 161, consd. [para. 5].

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

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322; 65 D.L.R.(4th) 240; 74 C.R.(3d) 281; 53 C.C.C.(3d) 1, refd to. [para. 12].

Hunter v. Southam Inc. - see Southam Inc. v. Hunter.

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; [1984] 6 W.W.R. 577; 55 N.R. 241; 55 A.R. 291; 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.R.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 12].

R. v. Collins, [1987] 1 S.C.R. 265; [1987] 3 W.W.R. 699; 74 N.R. 276; 56 C.R.(3d) 193; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1, refd to. [para. 14].

People v. Baris (1986), 500 N.Y.S. 2d 572 (A.D. 4 Dept.), refd to. [para. 32].

R. v. Playford (1987), 24 O.A.C. 161; 40 C.C.C.(3d) 142; 63 O.R.(2d) 289; 61 C.R.(3d) 101 (C.A.), refd to. [para. 32].

R. v. Hiscock; R. v. Sauvé (1992), 46 Q.A.C. 263; 72 C.C.C.(3d) 303, folld. [para. 33].

R. v. Rosebush (F.E.) et al. (1992), 131 A.R. 282; 25 W.A.C. 282 (C.A.), consd. [para. 34].

R. v. McKay (T.C.) et al. (1992), 136 A.R. 27 (Q.B.), folld. [para. 36].

R. v. Thompson et al., [1990] 2 S.C.R. 1111; 114 N.R. 1; 59 C.C.C.(3d) 225, consd. [para. 52].

R. v. Montoute (1991), 113 A.R. 95; 62 C.C.C.(3d) 481 (C.A.), appld. [para. 55].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8, sect. 24 [para. 7, Appendix].

Criminal Code, R.S.C. 1985, c. C-46, sect. 184(1), sect. 184(2)(a), sect. 184(2)(b), sect. 185(1), sect. 186(1)(a), sect. 186(1)(b), sect. 186(4), sect. 189(1), sect. 189(5) [para. 7, Appendix].

Counsel:

K.R. McLeod, for the Crown;

R.E. Williamson, for Calverley;

T.C. Semenuk, for Benini;

J.A. Orman and C. Mah, for Hughes;

P. Sullivan, for Proudfoot;

Steel was unrepresented;

Misko was unrepresented and absent.

This matter was heard in Calgary, Alberta, by Egbert, J., of the Alberta Court of Queen's Bench, who delivered the following decision on January 7, 1993.