R. v. Ouellette, [1989] 1 SCR 1781

R. v. Ouellette, [1989] 1 S.C.R. 1781

 

André Claude Ouellette Appellant

 

v.

 

Her Majesty The Queen    Respondent

 

indexed as:  r. v. ouellette

 

File No.:  20187.

 

1988:  April 28, 29; 1989: June 29.

 

Present:  Beetz*, McIntyre, Lamer, Wilson, Le Dain*, La Forest and L'Heureux‑Dubé JJ.

 

on appeal from the court of appeal for british columbia

 

    Criminal law -- Wiretap authorizations -- Application to set aside authorizations (Wilson application) -- Whether a right of appeal exists from a Wilson application -- Whether Charter of Rights guarantees a right of appeal.

 

    Appellant's motion for an order setting aside wiretap authorizations (a Wilson application) given on separate occasions by two authorizing judges was dismissed and an appeal from that judgment was dismissed by the Court of Appeal for want of jurisdiction.  At issue were (1) whether the appeal was civil in nature so that jurisdiction could be found under the Court of Appeal Act, and (2) whether the interests guaranteed by the Canadian Charter of Rights and Freedoms  were of such importance that an appeal on the merits should be provided.

 

    Held:  The appeal should be dismissed.

 

    The appeal should be dismissed for the reasons given in R. v. Meltzer, [1989] 1 S.C.R. 000.

 

Cases Cited

 

    Applied:  R. v. Meltzer, [1989] 1 S.C.R. 000; referred to:  Wilson v. The Queen, [1983] 2 S.C.R. 594;  R. v. Heikel,  [1989] 1 S.C.R. 000.

 

Statutes and Regulations Cited

 

Court of Appeal Act, S.B.C. 1982, c. 7.

 

Criminal Code, R.S.C. 1970, c. C-34, ss. 178.14(1)(a)(ii), 185(1), 186(1)(a), (d).

 

    APPEAL from a judgment of the British Columbia Court of Appeal dismissing an appeal from a judgment of Skipp Co. Ct. J. dismissing an application to set aside authorizations to intercept private communications.  Appeal dismissed.

 

    Richard Israels and H. Scott Fairley, for the appellant.

 

    S. R. Fainstein, Q.C., for the respondent Her Majesty The Queen in right of Canada.

 

    Kirk Lambrecht, for the respondent Her Majesty The Queen in right of British Columbia.

 

//McIntyre J.//

 

    The judgment of the Court was delivered by

 

    MCINTYRE J. --  This appeal again raises the question of the right to appeal from the refusal of what has been called a Wilson review (Wilson v. The Queen, [1983] 2 S.C.R. 594).   On January 30, 1985 an authorization was granted for the interception of the private communications of the appellant, in respect of narcotics offences.  On March 1, 1985 a different judge granted an application for an authorization, authorizing the interception of the appellant's private communications concerning bookmaking offences under the Criminal Code, R.S.C. 1970, c. C-34.    The Crown commenced proceedings by indictment on October 15, 1985, under ss. 185(1) , 186(1) (d) and 186(1) (a) of the Criminal Code .  The appellant pleaded not guilty.

 

    The case came to trial on November 25, 1985.   Counsel for the appellant sought the right to cross-examine the deponents on affidavits filed to obtain the authorizations.   The Crown objected.  Counsel for the appellant sought and obtained an adjournment to enable an application for an order permitting access to the filed affidavits, pursuant to s. 178.14(1)(a)(ii) of the Code, and an order setting aside the wiretap authorizations of the two authorizing judges.   On or about August 12, 1986, edited versions of the police affidavits were released to defence counsel, but in reasons delivered the same day His Honour Judge Skipp, of the Vancouver County Court, dismissed the motion to quash each of the authorizations.  This judgment was appealed to the Court of Appeal which dismissed the appeal for want of jurisdiction.  In doing so, Taggart J.A., speaking with the agreement of Macfarlane and Cheffins JJ.A., said:

 

    The Crown has referred to us the decision of this court in Meltzer v. Laison and Her Majesty the Queen.  That judgment was given June 18, 1986.  The Registry number is CA004567.  The effect of the majority judgment of the court in Meltzer is that the court lacks jurisdiction to entertain an appeal from a judgment declining to quash authorizations such as the authorizations granted in this case.  We are bound by that judgment.

 

    In this court, the appellant stated in his factum that the sole issue in the appeal was whether the Court of Appeal erred in declining jurisdiction to hear an appeal on the merits from the authorizing orders.  In support of that argument he took the position that the appeal was civil in nature and that jurisdiction to hear it could be found under the provisions of the Court of Appeal Act, S.B.C. 1982, c. 7, for civil appeals, and that the absence of a specific provision in the Criminal Code  enabling the appeal was therefore not decisive.   He argued as well, as did counsel in the related cases of R. v. Meltzer, [1989] 1 S.C.R. 000, and R. v. Heikel, [1989] 1 S.C.R. 000, that the importance of the interests guaranteed by the Canadian Charter of Rights and Freedoms  were such that an appeal on the merits should be provided.

 

    These arguments were raised and disposed of in R. v. Meltzer (judgment given concurrently) and for the reasons given in that case I would reject both arguments and dismiss the appeal.

 

    Appeal dismissed.

 

    Solicitors for the appellant:  Israels & Ballantyne, Vancouver.

 

    Solicitor for the respondent Her Majesty The Queen in right of Canada:  The Deputy Attorney General of Canada, Ottawa.

 

    Solicitor for the respondent Her Majesty The Queen in right of British Columbia:  The Ministry of the Attorney General, Vancouver.