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R. v. McCafferty
The judgment of the Court was delivered by 1 LACOURCIERE J.A.:—This is an appeal by the appellant from his conviction on an indictment charging him, with one Stan Trachtulec, that they: ... on or about the 13th of May 1979, at the City of Windsor in the County of Essex, together did commit second degree murder on the person of Catherine Techko contrary to section 218, subsection (1) of the Criminal Code. This was a second trial, both accused having successfully appealed their earlier conviction for murder. At the second trial the co-accused Trachtulec pleaded guilty. The Facts 2 The deceased, Catherine Techko, was a 77 year old widow who lived alone in Windsor. She was in the habit of keeping substantial quantities of currency and coins around her home. This fact was known by one of her tenants, Elaine Seremack, who lived with Trachtulec in a second house owned by the deceased situated at 1070 Cadillac Street in Windsor. Trachtulec and the appellant were well acquainted. The appellant was a frequent visitor to Trachtulec's residence. On the night of May 13, 1979, the deceased's home was broken into. As a result of an alert neighbour's observations, the deceased's son was called and discovered the break-in the following day. His mother's residence had been ransacked. Her body was in her bedroom. Subsequent examination revealed evidence that the deceased's ankles and wrists had been tied. She had cuts to her lips consistent with being punched by a closed fist. In the opinion of the pathologist, the injuries inflicted upon her gave rise to an increase in her blood pressure which caused acute myocardial insufficiency -- the cause of death. 3 There was some evidence to support the Crown's theory that more than one person had been responsible for the break in. Among other things, two opened beer bottles were found in the deceased's home. A heavy lawn ornament had been dismantled and moved. There was, however, no direct evidence against the appellant. As a result of intercepted communications by a wiretap and a room probe, some of the stolen money was found. Trachtulec had paid the money to a third party, one Mary Bohack. The appellant had accompanied Trachtulec to Bohack's house at the time of the payment. A dealer in coins testified that he was shown over $1,000 in coins by the appellant and Trachtulec. Other circumstantial evidence included a number of items seized during a search of the appellant's apartment as well as statements made by the appellant to the police prior to his arrest and to a friend of Seremack who, equipped with a body pack, had visited the appellant in jail. There were, in addition, other authorized interceptions of private communications. Motion for Directed Verdict and Sufficiency of Evidence 4 The evidence has been reviewed in exceptional detail by the appellant's counsel to support his attack on its sufficiency and in an attempt to question the reasonableness of the verdict. The Crown also reviewed the evidence in great detail, pointing out that the appellant did not testify at his trial nor adduce any evidence on his behalf. We were all satisfied, after reviewing the evidence and considering the able arguments presented, that there was evidence, albeit circumstantial, upon which a reasonable jury, properly instructed, could convict. The motion for a directed verdict of acquittal could not properly have been granted by the learned trial judge, as it would have involved improperly weighing the evidence, U.S.A. v. Sheppard, [1977] 2 S.C.R. 1067, 30 C.C.C. (2d) 424, 34 C.R.N.S. 207; Re Martin Simard and Desjardins v. The Queen (1977), 20 O.R. (2d) 455, 41 C.C.C. (2d) 308, aff'd (1978) 2 S.C.R. 511, 41 C.C.C. (2d) 342. While the learned trial judge may have erred in law in failing to recognize that the appellant's election with respect to adducing evidence in defence did not affect his authority to direct a verdict, nevertheless he committed no error in refusing to direct a verdict of acquittal at the conclusion of the Crown's case. 5 We accept the Crown's submission that it would have been preferable if the jury had been asked to determine liability solely upon the basis of ss. 21(2) and 213 of the Criminal Code, having regard to the evidence of break, entry and theft as well as robbery. However, leaving the alternative basis of liability to the jury on the basis of ss. 21(1)(b) and 21(1)(c) did not result in any substantial wrong or miscarriage of justice in the circumstances. The Interceptions of Private Communications 6 The only ground of appeal which required the Court to reserve its decision concerns the admissibility of the intercepted private communications. Two officers attended at Trachtulec's home in Windsor on May 14, 1979, to execute a search warrant. A copy of the warrant has not been reproduced in the Appeal Book but it was said in evidence that the warrant was issued to search for stolen property (i.e. coins and currency) and break and enter tools. A cursory search was carried out that evening. The officers returned the next day to conduct a thorough search of the premises. There is no suggestion that the warrant was not strictly correct in every particular and that the conduct of the officers carrying out the search for the money and the tools was not entirely lawful. On May 15, 1979, after the occupants had been removed to the police station for questioning, and while the officers given the responsibility for carrying out the search were in the process of doing so, one Sgt. Prystanski entered the premises and installed a transmitting device called a "room probe". The purpose of this installation was to put in place one component of a system which was ultimately used to intercept the private communications of the occupants. While the room probe emitted a radio signal from the day of its installation, no receiving equipment was installed or made operational until two days later, on May 17, 1979, when Sgt. Prystanski's superior, Staff Sgt. Garswood, applied for and was granted an authorization to intercept the private communications of certain persons at 1070 Cadillac Street. Private communications were subsequently intercepted by the police and eventually introduced in evidence at trial. 7 Several attacks were made by the appellant on the admissibility of the intercepted private communications: in particular, (1) the failure to name the appellant in the May 17, 1979 order; (2) the jurisdiction of a County Court judge sitting in the County of Middlesex to authorize the interception of private communications in the County of Essex; and, (3) the fact that the interception was not made under the control or supervision of a person designated under s. 178.13(2.1). We find no reversible error with respect to the trial judge's ruling on these three points. The information obtained during the police investigation, in our view, did not require that the appellant be included and identified in the authorization. The jurisdiction of the County Court judge, under Part IV.1 of the Code, to issue an authorization in another county is recognized by this Court in R. v. Longworth, Freeman, Newton and Wolfe (1982), 38 O.R. (2d) 367, 67 C.C.C. (2d) 554. Further, the absence of a designation by the Attorney General of Ontario does not affect the admissibility of the evidence obtained by an authorized interception. See R. v. Baker (1977), 35 C.C.C. (2d) 314. The Pre-authorization Entry 8 One of the appellants' submissions is that the pre-authorization entry and installation of the "live" room probe transmitter by Sgt. Prystanski was not disclosed on the May 17 ex parte application for an authorization to intercept private communications. The appellant argues that the learned County Court judge would have refused the authorization if this prior entry and installation had been disclosed on the application. 9 In our view this constitutes a collateral attack on the authorization which the Supreme Court of Canada held, in R. v. Wilson (1983), 51 N.R. 321 at 325-326, the trial judge is without jurisdiction to entertain. Accordingly, the learned trial judge had to accept the validity of the authorization. Nor do we consider that it would be in the interests of justice to exercise our power under s. 610(1)(a) of the Criminal Code to order production of the sealed packet, assuming, without deciding, that this Court has the power to make an order pursuant to s. 178.14. 10 The most difficult issue raised by the appellant is his submission that the installation of the room probe by Sgt. Prystanski rendered the subsequent interceptions unlawful and therefore inadmissible as evidence at trial. The success of this argument turns on two further questions: (i) was Sgt. Prystanski's covert entry conduct in the nature of a trespass; and, (ii) if so, does such trespass render the interceptions unlawful for the purpose of determining their admissibility at trial? 11 In Colet v. The Queen [1981] 1 S.C.R. 2, 57 C.C.C. (2d) 105 the Supreme Court of Canada held that a warrant to seize a weapon did not authorize the police to enter and search the subject's property. The Court concluded that in attempting to enter and search without authority the police were trespassers. In our view, similar considerations apply to a warrant to search. A search warrant must be given a very strict interpretation. It cannot properly be used to carry out a general search nor can it be used to plant a room probe or other listening device. In the present case, the installation by Sgt. Prystanski was not merely in the nature of preparatory work, such as a non-activated wiretap which can be prepared without covert entry. It involved a deliberate, judicially unauthorized entry upon private premises without the consent of the owner. The fact that there was a search warrant did not make the entry lawful where Sgt. Prystanski's purpose in entering the premises was not to conduct a search but to install a room probe. Such conduct exceeded the limited authority of the search warrant and must, in the absence of an authorization under Part IV.1 of the Code, be considered as conduct in the nature of a trespass. The Admissibility of the Evidence of the Intercepted Communications 12 The matter of the admissibility of intercepted communications turns on the provisions of s. 178.16(1) of the Code which reads: 178.16(1) A private communication that has been intercepted is inadmissible as evidence against the originator of the communication or the person intended by the originator to receive it unless(a)the interception was lawfully made; or 13 We note at the outset that prior to the enactment of Part IV.1 of the Code, there was no exclusionary rule of evidence in Canada. Martin J.A. noted the change to the general rule that had been effected by s. 178.16(1) where he said, in R. v. LeSarge (1976), 26 C.C.C. (2d) 388 at p. 391-392: There is not in Canada, apart from the rule which governs the admissibility of statements made by an accused to a person in authority, any general rule which excludes evidence which is relevant and otherwise admissible, on the ground that such evidence was illegally obtained. On the contrary, the general rule is that such evidence is admissible. Section 178.16(1) creates a limited exception to the general rule and makes inadmissible a private communication that has been intercepted and evidence obtained directly or indirectly as a result of information acquired by the interception of such communication, unless such interception was lawfully made in accordance with the provisions of the Code subject to the limited power conferred on the judge by the provisions of s. 178.16(2) to admit such evidence if the conditions of admissibility under that subsection exist. 14 "Intercept" is defined in s. 178.1 to include "listen to, record or acquire the substance, meaning or purport thereof". If one considered only the definition of the word "intercept" it might be argued that no interception could take place, in a case such as this one, until the activation of receiving equipment made any listening device operational because, until reception could be made, there could be no "listening to, recording or acquiring" of communications. 15 This reasoning finds support in the judgment of the Manitoba Court of Appeal in R. v. Dass (1979) 47 C.C.C. (2d) 194 where the Court drew a distinction between the installation of electronic listening equipment and the actual listening to or recording of private communications. The commission of a trespass in the installation of a listening device did not, in the view of the Manitoba Court of Appeal, render the interception unlawful so that the evidence obtained pursuant to a valid judicial authorization was admissible in evidence. 16 The majority of the British Columbia Court of Appeal in R. v. Lyons (1982), 69 C.C.C. (2d) 318 adopted this reasoning. Anderson J.A., in his dissent, expressed the opinion that such a narrow interpretation of "interception" was not consonant with the provisions of Part IV.1 of the Code read as a whole. He concluded that the "interception" process included the installation and maintenance of electronic listening equipment. In his view an interception which involved a trespass for the installation of a listening device could not have been lawfully made and would have held that the interception was inadmissible in evidence. See also R. v. Hardy et al. (August 28, 1984, unreported, N.B.C.A.). Leave to appeal to the Supreme Court of Canada has been granted in Lyons and the appeal is pending. 17 Judgment was reserved in this appeal pending the decision of this Court in R. v. Papalia released August 2, 1984. In that case, this Court, in a unanimous judgment written by Brooke J.A., held that the judge granting an authorization has the power to authorize surreptitious entry where necessary to install the listening device. The Court went further and held that the authorization, by necessary implication, carries with it the authority to make covert entry to install a transmitting device. In doing so, it was necessary for the Court to conclude, in agreement with Anderson J.A. in Lyons, that the installation itself is part of the interception process, being a necessary part of the manner of interception. Pending the decision of the Supreme Court of Canada in Lyons, this conclusion puts to rest in this province the argument that covert entry to install listening equipment necessary to effect judicially authorized interceptions of private communications is conduct in the nature of a trespass. An interception made following surreptitious entry for purposes of installation is "lawfully made" within s. 178.16(1)(a) if it is made pursuant to a valid judicial authorization. By viewing equipment installation as part of the interception for the purposes of s. 178.16(1) the Court in Papalia also foreclosed the Crown's argument in this case that installation is severable from interception and that no "interception" had taken place prior to the activation of the receiving equipment which made the room probe operational on May 17, 1984. 18 In the present case, the authorization contained the following clause: ... in order to intercept ... private oral communications carried on within any such premise [1970 Cadillac Street] entry may be made upon any such premise in order to install, service, monitor, or remove such electromagnetic, acoustic, mechanical or other intercepting device as may be required. [Emphasis added] In fact, as previously stated, the transmitting device described as the "room probe" had been installed by covert entry in Trachtulec's home on May 15th, two days prior to the authorization. Unlike the facts in Papalia, the officer who installed the listening device in this case purported to gain entry to the premises, not by a Part IV.1 authorization but under the authority of a warrant to search for stolen goods and break and enter tools. 19 This installation on May 15 was unlawful. It involved a surreptitious entry which constituted conduct in the nature of a trespass because it was made neither pursuant to a valid judicial authorization nor a warrant to search for stolen goods. Part IV.1 of the Code establishes a scheme for the protection of privacy against invasion, among other things, by various forms of electronic eavesdropping. The most significant exception to this protection is where interceptions of private communications are authorized by judicial act. Parliament has determined the substance and form of the material that must be placed before the authorizing judge and the factors that must be taken into account in deciding whether or not to grant the authorization. The completeness and detail of these provisions, in my view, precludes the possibility of giving retrospective effect to the May 17 authorization. 20 It follows therefor that the interceptions acquired by use of the room probe at 1070 Cadillac Street were not lawfully obtained and that the evidence of those communications is inadmissible. Conclusion 21 Unlike the Crown's case in Dass which was very strong without the evidence obtained by interception, the Crown's case against the appellant is entirely circumstantial and barely meets the test to be applied in order to avoid a directed verdict of acquittal. The transcript of the communications obtained by the use of the room probe may be viewed as supporting an inference of consciousness of guilt on the part of the appellant. In the circumstances the Crown has not persuaded us that the admission of this prejudicial evidence did not result in substantial wrong or miscarriage of justice. Accordingly the appeal should be allowed and a new trial directed. LACOURCIERE J.A. DUBIN J.A.:—I agree. Addendum Released December 7, 1984. LACOURCIER J.A.:-- We wish to make it clear that the evidence declared to be inadmissible on our reasons for judgment released November 8th, 1984, is limited to the conversation obtained through the unlawful interception by means of the room probe installed prior to the May 17th, 1979 judicial authorization. LACOURCIERE J.A. DUBIN J.A. Corrigendum Released December 7, 1984. At p. 10, first full paragraph. "I would note" should read "We note". At p. 15, 7th line of the last paragraph, "room probes" should read "room probe ".
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