R. v. Martin (G.W.),

R. v. Martin (G.W.) (2010), 361 N.B.R.(2d) 251 (CA);

    361 R.N.-B.(2e) 251; 931 A.P.R. 251

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[French language version follows English language version]

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

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Temp. Cite: [2010] N.B.R.(2d) TBEd. JN.021

Renvoi temp.: [2010] N.B.R.(2d) TBEd. JN.021

Her Majesty the Queen (appellant) v. George W. Martin (respondent)

(143-08-CA; 2010 NBCA 41)

Indexed As: R. v. Martin (G.W.)

Répertorié: R. v. Martin (G.W.)

New Brunswick Court of Appeal

Robertson, Richard and Bell, JJ.A.

June 10, 2010.

Summary:

Résumé:

Martin, a lawyer, was charged with attempting to obstruct justice. The indictment alleged that Martin counselled someone "to dispose of items which could afford evidence with respect to the commission of an offence".

The New Brunswick Court of Queen's Bench, Trial Division, in a decision not reported in this series of reports, acquitted Martin, after excluding from the evidence an intercepted, incriminating, telephone conversation between Martin and the wife of one of his clients. The Crown appealed.

The New Brunswick Court of Appeal allowed the appeal and ordered a new trial. The telephone conversation was admissible.

Civil Rights - Topic 1373

Security of the person - Police surveillance - Interception of private communications - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - An authorization to intercept telephone communications at the Wedge residence contained a basket clause which required the police listener to stop listening when it became known that a lawyer was involved - The basket clause allowed the police to continue recording the conversation but required that it be sealed - Mr. Wedge was charged with illegal tobacco transactions - A police civil employee, Rushton, started to listen to a conversation already in progress between a male person and Mrs. Wedge - The gist of what Rushton heard was that Mr. Wedge was in police custody, was concerned about incriminating evidence at home, and wanted his wife to call "Romeo" to have him remove the evidence - Upon hearing this, Rushton contacted Constable Légère - Constable Légère asked Rushton to play back the entire conversation - It was then discovered that the male person was Martin, Mr. Wedge's lawyer - Constable Légère kept on listening - Martin was charged with attempting to obstruct justice - Martin wanted to have the intercepted conversation excluded from the evidence under s. 24(2) of the Charter because his rights under s. 8 had been violated - The New Brunswick Court of Appeal held that the conversation was admissible even though there was a violation of s. 8, where its admission would not bring the administration of justice into disrepute - The violation occurred only upon the play back of the conversation, when the basket clause was not complied with - While the violation was serious, it was attenuated by (a) the uniqueness of the situation in that a part of the conversation had already been heard, and (b) the need to prevent evidence from being removed - Martin's privacy interest respecting the conversation was not very high where the conversation was subject to a lawful authorization to intercept - The evidence resulting from the interception was "highly relevant and reliable" - Without it, the prosecution's case collapsed and society's interest in adjudication on the merits was compromised - See paragraphs 54 to 103.

Civil Rights - Topic 8599

Canadian Charter of Rights and Freedoms - Practice - Appeals - Standard of review - The New Brunswick Court of Appeal held that the trial judge's decision to exclude evidence pursuant to s. 24(2) of the Charter was not owed any deference where the trial judge focussed only on the seriousness of the Charter violation involved and did not weigh the proper factors in determining whether the admission or exclusion of the evidence would bring the administration of justice into disrepute - See paragraphs 67 to 80.

Criminal Law - Topic 4951

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - Appeal by Crown from acquittal - Section 676(1)(a) of the Criminal Code gave the Attorney General a right of appeal against an acquittal on any ground that involved a question of law alone - The New Brunswick Court of Appeal discussed this right of appeal and concluded as follows: (1) this right of appeal generally insulated factual findings from appellate review - However, if factual findings were not grounded in evidence but rather in speculation or conjectural possibility, the question then raised amounted to one of law; and (2) a trial judge's error of relying on conjecture and speculation did not necessarily lead to appellate intervention - See paragraphs 34 to 40.

Criminal Law - Topic 4951

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - Appeal by Crown from acquittal - An authorization to intercept telephone communications at the Wedge residence contained a basket clause which required the police listener to stop listening when it became known that a lawyer was involved - The basket clause allowed the police to continue recording the conversation but required that it be sealed - Mr. Wedge was charged with illegal tobacco transactions - A police civil employee, Rushton, started to listen to a conversation already in progress between a male person and Mrs. Wedge - The gist of what Rushton heard was that Mr. Wedge was in police custody, was concerned about incriminating evidence at home, and wanted his wife to call "Romeo" to have him remove the evidence - Upon hearing this, Rushton contacted Constable Légère - Constable Légère asked Rushton to play back the entire conversation - It was then discovered that the male person was Martin, Mr. Wedge's lawyer - Constable Légère kept on listening - Martin was charged with attempting to obstruct justice - The trial judge acquitted him after excluding the conversation from the evidence - The trial judge ruled that Rushton and Constable Légère had violated Martin's s. 8 Charter rights since they should have known from the outset that the conversation involved a lawyer - The New Brunswick Court of Appeal ordered a new trial after ruling that the conversation was admissible - The trial judge's s. 8 analysis had been coloured by findings based on conjecture and speculation - See paragraphs 54 to 66.

Criminal Law - Topic 5286

Evidence and witnesses - Interception of private communications - Authority for - Scope of - An authorization to intercept telephone communications contained a basket clause which authorized the interception of communications of unknown persons taking place at a residence at a specific address, and at a specific telephone number - Mr. and Mrs. Wedge lived at the residence - The police intercepted a telephone conversation that took place at the Wedge residence between Mrs. Wedge, an unknown person according to the basket clause, and Mr. Wedge's lawyer, another unknown person - At issue was whether that interception fell within the ambit of the basket clause - The New Brunswick Court of Appeal held that it did - The basket clause was not so broad as to be invalid but was sufficiently broad to authorize the interception of Mrs. Wedge's communications at the Wedge residence - See paragraphs 41 to 53.

Droit criminel - Cote 4951

Appels - Actes criminels - Nouveaux procès - Motifs - Directives erronées par le juge du procès - Appel par la Couronne d'un acquittement - [Voir Criminal Law - Topic 4951 ].

Droit criminel - Cote 5286

Preuve et témoins - Interception de communications privées - Portée de l'autorisation - [Voir Criminal Law - Topic 5286 ].

Droits et libertés - Cote 1373

Sécurité de la personne - Surveillance policière - Interceptions de communications privées - [Voir Civil Rights - Topic 1373 ].

Droits et libertés - Cote 8368

Charte canadienne des droits et libertés - Négation de droits - Mesures de redressement - Exclusion de la preuve - [Voir Civil Rights - Topic 8368 ].

Droits et libertés - Cote 8599

Charte canadienne des droits et libertés - Procédure - Appels - Norme de révision - [Voir Civil Rights - Topic 8599 ].

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 2].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 2].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [para. 2].

R. v. Le (V.) (1996), 181 A.R. 107; 116 W.A.C. 107 (C.A.), refd to. [para. 18].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 19].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 20].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, consd. [para. 34].

R. v. Rousseau, [1985] 2 S.C.R. 38; 60 N.R. 278, refd to. [para. 34].

R. v. Dubois (1979), 17 A.R. 541 (C.A.), refd to. [para. 34].

R. v. Dubois, [1980] 2 S.C.R. 21; 32 N.R. 176; 23 A.R. 116, refd to. [para. 34].

R. v. Wild, [1971] S.C.R. 101, refd to. [para. 34].

R. v. White (G.) (1994), 130 N.S.R.(2d) 143; 367 A.P.R. 143 (C.A.), consd. [para. 34].

R. v. Schuldt, [1985] 2 S.C.R. 592; 63 N.R. 241; 38 Man.R.(2d) 257, consd. [para. 35].

Parlee v. McFarlane (1999), 210 N.B.R.(2d) 284; 536 A.P.R. 284 (C.A.), consd. [para. 36].

R. v. Noel (P.J.) (2010), 358 N.B.R.(2d) 108; 924 A.P.R. 108; 2010 NBCA 28, consd. [para. 37].

R. v. Duguay (R.) (2007), 320 N.B.R.(2d) 104; 825 A.P.R. 104; 2007 NBCA 65, refd to. [para. 39].

R. v. Gray (R.) and Gray (H.) (1998), 208 N.B.R.(2d) 1; 531 A.P.R. 1 (C.A.), refd to. [para. 41].

R. v. Chesson and Vanweenan, [1988] 2 S.C.R. 148; 87 N.R. 115; 90 A.R. 347, refd to. [para. 42].

R. v. Goldman, [1980] 1 S.C.R. 976; 30 N.R. 453, refd to. [para. 43].

R. v. Thompson et al., [1990] 2 S.C.R. 1111; 114 N.R. 1, consd. [para. 47].

R. v. Taylor (S.D.) (1997), 86 B.C.A.C. 224; 142 W.A.C. 224 (C.A.), affd. [1998] 1 S.C.R. 26; 221 N.R. 280; 100 B.C.A.C. 319; 163 W.A.C. 319, consd. [para. 49].

R. v. Taillefer (B.) (1995), 100 C.C.C.(3d) 1 (Que. C.A.), leave to appeal refused (1996), 199 N.R. 80 (S.C.C.), consd. [para. 49].

R. v. Willock (P.J.) et al. (1998), 64 Alta. L.R.(3d) 354; 1998 ABCA 260, consd. [para. 51].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 70].

R. v. Mooring (I.R.) et al. (2003), 181 B.C.A.C. 63; 298 W.A.C. 63; 2003 BCCA 199, refd to. [para. 72].

R. v. Babinski (R.R.) (2005), 193 O.A.C. 263 (C.A.), refd to. [para. 72].

R. v. Beaulieu (G.) (2010), 398 N.R. 345; 2010 SCC 7, consd. [para. 78].

R. v. Wijesinha (W.K.K.), [1995] 3 S.C.R. 422; 186 N.R. 169; 85 O.A.C. 241, consd. [para. 90].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 92].

R. v. Kitaitchik (A.) (2002), 161 O.A.C. 169 (C.A.), refd to. [para. 92].

Counsel:

Avocats:

Luc LaBonté, for the appellant;

Alan D. Gold, for the respondent.

This appeal was heard on October 22, 2009, by Robertson, Richard and Bell, JJ.A., of the New Brunswick Court of Appeal. The following decision of the Court of Appeal was delivered in both official languages on June 10, 2010, by Richard, J.A.