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Constitutional law—Order authorizing interception of private communications with respect to narcotic offence—Application for authorization made by agent of Solicitor General of Canada pursuant to s. 178.12 of Criminal Code—Right of Attorney General of Canada to institute proceedings—Criminal Code, ss. 2, 178.12.

Evidence—Authorization to intercept private communications—Whether permissible to prove authorization by filing certified copy—Judge granting authorization does so as a judge and not as a persona designata—Criminal Code, s. 178.12—Canada Evidence Act, R.S.C. 1970, c. E-10, s. 23.

The appellant was convicted on a charge of unlawful possession of diacetylmorphine (heroin) for the purpose of trafficking. His appeal from conviction was rejected by the Appellate Division of the Supreme Court of Alberta from which judgment an appeal was brought to this Court.

At the commencement of the case, Crown counsel tendered in evidence a certified copy of an authorization signed by a judge of the District Court of Alberta, authorizing the interception of private communications. This authorization was obtained on application in writing, signed by an agent specially designated in writing by the Solicitor General of Canada, pursuant to s. 178.12 of the Criminal Code and authorized the interception by officers of the R.C.M.P. of private communications with respect to, inter alia, the offence of a possession of a narcotic for the purposes of trafficking, contrary to s. 4(2) of the Narcotic Control Act.

Evidence obtained as a result of this authorization was admitted at the trial. The appellant contended that such evidence was inadmissible on the grounds (1) that the authorization could not be made under s. 178.12 by an agent of the Solicitor General of Canada because the offence was not one in respect of which proceedings might be instituted at the instance of the Government of Canada by or on behalf of the Attorney General of

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Canada, and (2) that a judge who grants an authorization pursuant to s. 178.12 does so, not as a judge, but as persona designata.

Held: The appeal should be dismissed.

The right of the Attorney General of Canada to institute the proceedings is found in the definition of “Attorney General” in s. 2 of the Criminal Code. In view of the reversal by this Court ([1979] 1 S.C.R. 984) of the judgment of the Appellate Division of the Supreme Court of Alberta ((1977), 37 C.C.C. (2d) 129) in Hauser v. The Queen, the appellant’s contention that para. (b) of the definition of “Attorney General” in s. 2 of the Criminal Code was ultra vires of the Parliament of Canada failed.

The appellant’s further submission that a judge who grants an authorization pursuant to s. 178.12 does so, not as a judge, but as persona designata and if this is so, it was not permissible to prove the authorization by filing a certified copy of it, under s. 23 of the Canada Evidence Act, as was done in this case, could not succeed in view of the reasons given by Dickson J. in Herman et al. v. Deputy Attorney General of Canada, [1979] 1 S.C.R. 729. The judge who granted the authorization did so as a judge and not as a persona designata.

APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division[1], dismissing appellant’s appeal from his conviction on a charge of possession of a narcotic for the purpose of trafficking contrary to s. 4(2) of the Narcotic Control Act. Appeal dismissed.

B.A. Crane, Q.C., for the appellant.

L.-P. Landry, Q.C., and E.G. Ewaschuk, for the respondent.

J. David Watt, D.W. Mundell, Q.C., and Miss Lorraine E. Weinrib, for the Attorney General of Ontario.

Michel Pothier and Yves Berthiaume, for the Attorney General of Quebec.

H. Hazen Strange, Q.C., for the Attorney General of New Brunswick.

R.W. Paisley, Q.C., and W. Henkel, Q.C., for the Attorney General of Alberta.

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The judgment of the Court was delivered by

MARTLAND J.—The appellant was convicted on a charge of unlawful possession of diacetylmorphine (heroin) for the purpose of trafficking. His appeal from conviction was rejected by the Appellate Division of the Supreme Court of Alberta from which judgment this appeal is brought.

At the commencement of the case, Crown counsel tendered in evidence a certified copy of an authorization signed by His Honour Judge Bracco, a judge of the District Court of Alberta, authorizing the interception of private communications. This authorization was obtained on application in writing, signed by J.H. Kennedy, an agent specially designated in writing by the Solicitor General of Canada, pursuant to s. 178.12 of the Criminal Code and authorized the interception by officers of the R.C.M.P. of private communications with respect to, inter alia, the offence of a possession of a narcotic for the purposes of trafficking, contrary to s. 4(2) of the Narcotic Control Act.

Evidence obtained as a result of this authorization was admitted at the trial. The appellant contended that such evidence was inadmissible.

The relevant portions of s. 178.12 are as follows:

178.12 An application for an authorization shall be made ex parte and in writing to a judge of a superior court of criminal jurisdiction, or a judge as defined in section 482 and shall be signed by the Attorney General of the province in which the application is made or the Solicitor General of Canada or an agent specially designated in writing for the purposes of this section by

(a) the Solicitor General of Canada personally, if the offence under investigation is one in respect of which proceedings, if any, may be instituted at the instance of the Government of Canada and conducted by or on behalf of the Attorney General of Canada, or

(b) the Attorney General of a province personally, in respect of any other offence in that province,

The first ground of appeal was that the application for authorization could not be made under s. 178.12 by an agent of the Solicitor General of Canada because the offence was not one in respect of which proceedings might be instituted at the

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instance of the Government of Canada by or on behalf of the Attorney General of Canada.

The right of the Attorney General of Canada to institute the proceedings is found in the definition of “Attorney General” in s. 2 of the Criminal Code:

2. In this Act

“Attorney General” means the Attorney General or Solicitor General of a province in which proceedings to which this Act applies are taken and, with respect to

(a) the Northwest Territories and the Yukon Territory, and

(b) proceedings instituted at the instance of the Government of Canada and conducted by or on behalf of that Government in respect of a violation of or conspiracy to violate any Act of the Parliament of Canada or a regulation made thereunder other than this Act,

means the Attorney General of Canada and, except for the purposes of subsections 505(4) and 507(3), includes the lawful deputy of the said Attorney General, Solicitor General and Attorney General of Canada;

The appellant contested this right on the ground that para. (b) was ultra vires of the Parliament of Canada and he relied upon the judgment of the Appellate Division of the Supreme Court of Alberta in Hauser v. The Queen[2] in support of this submission.

In my opinion, in view of the reversal of that decision by this Court (not yet reported[3]) this ground of appeal fails.

The second ground of appeal was that a judge who grants an authorization pursuant to s. 178.12 does so, not as a judge, but as persona designata. If this is so, it was not permissible to prove the authorization by filing a certified copy of it, under s. 23 of the Canada Evidence Act, as was done in this case.

In my opinion this submission cannot succeed in view of the reasons given by my brother Dickson in0

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the case of Herman et al. v. The Deputy Attorney General of Canada[4]. The judge who granted the authorization did so as a judge and not as a persona designata.

I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Gunn & Vigen, Edmonton.

Solicitor for the respondent: Roger Tassé, Ottawa.

 



[1] (1978), 40 C.C.C. (2d) 442.

[2] (1977), 37 C.C.C. (2d) 129.

[3] Since reported, [1979] 1 S.C.R. 984.

[4] [1979] 1 S.C.R. 729.

 

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