R. v. Wong et al.

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Supreme Court (Canada)
• Judge: Dickson, C.J.C., Lamer, C.J.C.*, La Forest, L'Heureux-Dubé, Sopinka and McLachlin, JJ.
• Citation: (1990), 120 N.R. 34 (SCC),[1990] CarswellOnt 58,[1990] SCJ No 118 (QL),2 CRR (2d) 277,45 OAC 250,[1990] 3 SCR 36,60 CCC (3d) 460,1 CR (4th) 1,120 NR 34,11 WCB (2d) 350,JE 90-1682,1990 CanLII 56 (SCC)
• Date: 02 May 1990

R. v. Wong (1990), 120 N.R. 34 (SCC)

MLB headnote and full text

[French language version follows English language version]

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

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

Wong (appellant) v. Her Majesty The Queen (respondent) and The Attorney General of Canada and The Attorney General for Alberta (intervenors)

(20549)

Indexed As: R. v. Wong et al.

Supreme Court of Canada

Dickson, C.J.C., Lamer, C.J.C.*, La Forest, L'Heureux-Dubé, Sopinka and McLachlin, JJ.

November 22, 1990.

Summary:

Wong and several other accused were charged with keeping a common gaming house. The Crown submitted videotape evidence and other evidence obtained at the time of the accused's arrest. The trial judge ruled that the evidence submitted was inadmissible, where the accused's s. 8 Charter rights had been violated, and dismissed the charges against all accused. The Crown appealed the acquittals.

The Ontario Court of Appeal, in a decision reported in 19 O.A.C. 365; 34 C.C.C.(3d) 51; 56 C.R.(3d) 352, allowed the appeal, set aside the acquittals and ordered a new trial. Wong appealed.

The Supreme Court of Canada, Wilson, J., dissenting in part, dismissed the appeal.

*Editor's Note: Dickson, C.J.C., was Chief Justice at the time of hearing; Lamer, C.J.C., was Chief Justice at the time of judgment.

Civil Rights - Topic 1211

Security of the person - Lawful or reasonable search - General - The Supreme Court of Canada affirmed that the guaranteed freedom from unreasonable search and seizure granted by s. 8 of the Charter only arose within those circumstances where the object of the intrusion had a reasonable expectation of privacy - The court stated that the test was whether the courts giving their sanction to the particular form of unauthorized surveillance in question would see the amount of privacy and freedom remaining to citizens diminished to a compass inconsistent with the aims of a free and democratic society - See paragraphs 10 to 12, 47, 54.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - Unreasonable search and seizure - What constitutes - The Supreme Court of Canada held that a surreptitious unauthorized video surveillance by police constituted an unreasonable search and seizure contrary to s. 8 of the Charter - The court held that the test for reasonableness was whether the surveillance intruded on a person's privacy in an unacceptable manner - See paragraphs 8 to 13.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - Unreasonable search and seizure - What constitutes - Police established the surreptitious unauthorized video surveillance in a hotel room of a large group of persons suspected on reasonable grounds of illegal gambling - The Supreme Court of Canada held that the surveillance was an unreasonable search and seizure contrary to s. 8 of the Charter, because in our society persons retiring to a hotel room behind closed doors had a reasonable expectation of privacy protected by s. 8 - The court further noted that the police did not act in the exercise of authority derived from their duties at common law, nor could the video surveillance be authorized as incidental to an authorization obtained under part IV.1 of the Criminal Code - See paragraphs 24 to 36, 54.

Civil Rights - Topic 1219

Security of the person - Lawful or reasonable search - Search defined - The Supreme Court of Canada held that video surveillance could constitute a search within the meaning of s. 8 of the Charter if the object of the intrusion had a reasonable expectation of privacy - The court referred to the test of what constituted a reasonable expectation of privacy - See paragraphs 8 to 13, 47 to 49, 54.

Civil Rights - Topic 8368

Charter - Denial of rights - Remedies - Exclusion of evidence - Police breached s. 8 of the Charter by conducting an unauthorized surreptitious video surveillance in a hotel room of persons suspected of illegal gambling - Police acted in good faith and on reasonable and probable grounds that a gambling offence was being committed - The breach resulted from a reasonable misunderstanding of the law by police - There was a measure of urgency to obtain the evidence, which could not be obtained by other investigative techniques - The Supreme Court of Canada affirmed that the admission of the evidence would not bring the administration of justice into disrepute - See paragraphs 37 to 42.

Criminal Law - Topic 3045

Search warrants - Scope of - The Supreme Court of Canada held that video surveillance could not be authorized as incidental to an authorization obtained under Part IV.1 of the Criminal Code - See paragraphs 31 to 36.

Criminal Law - Topic 5286

Evidence - Witnesses - Interception of private communications - Authority for - Scope of - [See Criminal Law - Topic 3045].

Police - Topic 3183

Powers - Search - Electronic surveillance - Video cameras - [See second Civil Rights - Topic 1217].

Cases Noticed:

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322, appld. [para. 8].

Olmstead v. United States (1928), 277 U.S. 438, refd to. [para. 9].

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

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249, refd to. [para. 15].

R. v. Rao (1984), 4 O.A.C. 162; 12 C.C.C.(3d) 97 (Ont. C.A.); leave to appeal refused [1984] 2 S.C.R. ix; 57 N.R. 238; 4 O.A.C. 241, refd to. [para. 29].

Stoner v. California (1964), 376 U.S. 483, refd to. [para. 30].

United States v. Agapito (1980), 620 F.2d 324 (U.S.C.A. 2d Cir.), refd to. [para. 30].

People v. Teicher (1977), 395 N.Y.S.2d 587 (S.C.N.Y. Co.), refd to. [para. 30].

United States v. Biasucci (1986), 786 F.2d 504 (U.S.C.A. 2d Cir.), refd to. [para. 30].

R. v. Biasi (1981), 66 C.C.C.(2d) 566 (B.C.S.C.), refd to. [para. 33].

Re Banque Royale du Canada and The Queen (1985), 18 C.C.C.(3d) 98; leave to appeal refused [1985] 1 S.C.R. xii; 55 N.R. 158, refd to. [para. 34].

R. v. Landry, [1986] 1 S.C.R. 145; 65 N.R. 161, refd to. [para. 35].

R. v. Bernard, [1988] 2 S.C.R. 833; 90 N.R. 321, refd to. [para. 35].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 33 C.C.C.(3d) 1; 38 D.L.R.(4th) 508, appld. [paras. 38, 60].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1, refd to. [para. 38].

R. v. Finlay and Grellette (1985), 11 O.A.C. 279; 23 C.C.C.(3d) 48 (Ont. C.A.); leave to appeal refused [1986] 1 S.C.R. ix; 65 N.R. 159; 15 O.A.C. 238, refd to. [para. 40].

R. v. Duarte, [1990] 1 S.C.R. 30; 103 N.R. 86; 32 O.A.C. 322, refd to. [paras. 45, 56].

R. v. Duguay, Murphy and Sevigny, [1989] 1 S.C.R. 93; 91 N.R. 201, refd to. [para. 58].

R. v. Jacoy, [1988] 2 S.C.R. 548; 89 N.R. 61, refd to. [para. 60].

R. v. Ross, [1989] 1 S.C.R. 3; 91 N.R. 81, refd to. [para. 62].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [paras. 43, 53]; sect. 8 [paras. 1, 7-10, 21, 27-29, 43, 45-47, 52-53, 61]; sect. 24(2) [paras. 7, 37, 43, 53-58, 60, 73-74].

Criminal Code, R.S.C. 1985, c. C-46, Part IV.1 [paras. 31-33, 36]; Part VI [paras. 70-71]; sect. 186(4)(c), sect. 186(4)(d) [para. 32].

Authors and Works Noticed:

Amsterdam, Perspectives on the Fourth Amendment (1974), 58 Minnesota Law Review 349, pp. 402; 403 [para. 12].

Counsel:

Alan D. Gold and Aimée Gauthier, for the appellant;

Casey Hill and Susan Chapman, for the respondent;

R.W. Hubbard, for the Attorney General of Canada;

Jack Watson, for the Attorney General for Alberta.

Solicitors of Record:

Gold and Fuerst, Toronto, for the appellant;

Attorney General for Ontario, for the respondent;

Attorney General of Canada, for the intervenor, the Attorney General of Canada;

Attorney General of Alberta, for the intervenor the Attorney General of Alberta.

This appeal was heard before Dickson, C.J.C., Lamer, J., (now C.J.C.), Wilson, La Forest, L'Heureux-Dubé, Sopinka and McLachlin, JJ., of the Supreme Court of Canada, on May 2, 1990. The decision of the Supreme Court of Canada was delivered in both official languages on November 22, 1990, when the following opinions were filed:

La Forest, J. (Dickson, C.J.C., L'Heureux-Dubé and Sopinka, JJ., concurring) - see paragraphs 1 to 43;

Lamer, C.J.C. (McLachlin, J., concurring) - see paragraphs 44 to 53;

Wilson, J., dissenting in part - see paragraphs 54 to 75.