R. v. Wilson (1983), 51 N.R. 321 (SCC)

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R. v. Wilson

Indexed As: R. v. Wilson

Supreme Court of Canada

Laskin, C.J.C., Dickson, Estey, McIntyre and Chouinard, JJ.

December 15, 1983.


The accused was charged with nine counts of engaging in the business of betting or recording bets, keeping a common betting house and related offences. The Crown relied upon evidence obtained by wiretap authorized by the Manitoba Court of Queen’s Bench. At trial the trial judge ruled that the wiretaps were unlawful, because the conditions for the issuance of an authorization under s. 178.13(1)(b) of the Criminal Code of Canada were not met. As a result, the accused was acquitted. The Crown appealed.

The Manitoba Court of Appeal in a judgment reported 13 Man.R.(2d) 155 allowed the appeal and ordered a new trial on the ground that the trial judge erred in going behind the authorization, which he was bound to accept. The accused appealed.

The Supreme Court of Canada dismissed the appeal and affirmed that it was not open to the trial judge to question the validity of the authorization. See paragraphs 1 to 19.

Dickson, J., concurred in the result, but was of the opinion that it was open to the trial judge to go behind the authorization. Dickson, J., stated that the trial judge erred in deciding that the conditions for the authorization had not been met without examining the contents of the sealed packet. See paragraphs 20 to 57.

Criminal Law – Topic 5283

Evidence and witnesses – Interception of private communications – Authority for – Judicial review of – The Supreme Court of Canada held that an application for review of an authorization must be made to the court that made it, because there was no right of appeal and prerogative relief by certiorari was inapplicable in the absence of a question of jurisdiction – See paragraph 15.

Criminal Law – Topic 5310.1

Evidence and witnesses – Inadmissible private communications – Admission of admissible interceptions – Authorization – Effect of – The Supreme Court of Canada held that, where the Crown tendered evidence obtained by an authorized interception, the trial judge must accept the authorization and may not go behind it – See paragraphs 1 to 19.

Practice – Topic 5461

Judgments and orders – Finality of – General – The Supreme Court of Canada held that a court order stands unless set aside and may not be attacked in collateral proceedings – For example, the court held that a wiretap authorization must be accepted by the trial judge at a trial, where authorized wiretap evidence is offered – See paragraphs 4 to 14, 19.

Practice – Topic 5807

Judgments and orders – Ex parte orders – Judicial review – The Supreme Court of Canada held that an ex parte order may be reviewed by the judge who made it or another judge of the same court – See paragraphs 15 to 16.

Practice – Topic 6258

Judgments and orders – Setting aside orders – In collateral action – The Supreme Court of Canada held that a court order, which has not been set aside, may not be attacked in a collateral proceeding – See paragraphs 4 to 14, 19.

Cases Noticed:

Canadian Transport (U.K.) Ltd. v. Alsbury et al., [1953] 1 D.L.R. 385, affd. [1953] S.C.R. 516, appld. [para. 5].

Poje et al. v. Attorney General of British Columbia, [1953] S.C.R. 516, affing [1953] 1 D.L.R. 385, appld. [para. 6].

Pashko v. Canadian Acceptance Corporation Ltd. (1957), 12 D.L.R.(2d) 380, refd to. [para. 6].

Gibson v. Le Temps Publishing Co. (1903), 6 O.L.R. 690, appld. [para. 7].

Clarke et al. v. Phinney (1895), 25 S.C.R. 633, appld. [para. 8].

Maynard v. Maynard, [1951] S.C.R. 346, appld. [para. 8].

Bador Bee v. Habib Merican Noordin et al., [1909] A.C. 615, appld. [para. 8].

Royal Trust Company v. Jones et al., [1962] S.C.R. 132, appld. [para. 8].

R. v. Welsh and Iannuzzi (No. 6) (1977), 32 C.C.C.(2d) 363 (Ont. C.A.), appld. [paras. 10, 51].

R. v. Wong (No. 1) (1976), 33 C.C.C.(2d) 506, consd. [paras. 10, 18, 34].

R. v. Charette, [1980] 1 S.C.R. 785; 33 N.R. 158, affing sub nom. R. v. Parsons, 37 C.C.C.(2d) 497, consd. [paras. 14, 31].

R. v. Parsons (1977), 37 C.C.C.(2d) 497, affd. sub nom. R. v. Charette, [1980] 1 S.C.R. 785; 33 N.R. 158, consd. [para. 14, 31].

Dickie v. Woodworth (1883), 8 S.C.R. 192, appld. [para. 15].

Stewart v. Braun, [1924] 3 D.L.R. 941 (Man. K.B.), appld. [para. 15].

Stewart and The Queen, Re (1975), 23 C.C.C.(2d) 306 (Ont. C.C.), app. for cert. dismissed 30 C.C.C.(2d) 391 (O.H.C.), consd. [paras. 15, 34].

Turangan and Chui and The Queen, Re (1976), 32 C.C.C.(2d) 249 (B.C.S.C.), appeal dismissed for lack of juris. 32 C.C.C.(2d) 254 (B.C.C.A.), consd. [para. 15].

Bidder v. Bridges (1884), 26 Ch.D. 1 (C.A.), consd. [para. 16].

Boyle v. Sacker (1888), 39 Ch.D. 249 (C.A.), consd. [para. 16].

Gulf Islands Navigation Ltd. v. Seafarers’ International Union (1959), 18 D.L.R.(2d) 625 (B.C.C.A.), consd. [para. 16].

R. v. Dass (1979), 47 C.C.C.(2d) 194 (Man. C.A.), consd. [para. 29].

R. v. Gill (1980), 56 C.C.C.(2d) 169 (B.C.C.A.), consd. [para. 34].

R. v. Ho et al. (1976), 32 C.C.C.(2d) 339 (B.C.C.C.), consd. [para. 34].

Donnelly and Acheson and The Queen (1976), 29 C.C.C.(2d) 58 (Alta. S.C.T.D.), consd. [para. 35].

Miller and Thomas and The Queen, Re (1975), 23 C.C.C.(2d) 257 (B.C.S.C.), consd. [para. 35].

R. v. Goldman, [1980] 1 S.C.R. 976; 30 N.R. 453, consd. [para. 35].

Miller and Thomas (No. 4), Re (1975), 28 C.C.C.(2d) 128 (B.C.C.C.), consd. [para. 39].

R. v. Newall et al. (No. 1), Re (1982), 67 C.C.C.(2d) 431 (B.C.S.C.), consd. [para. 39].

R. v. Johnny and Billy (1981), 62 C.C.C.(2d) 33 (B.C.S.C.) consd. [para. 39].

R. v. Bradley et al. (1980), 19 C.R. (3d) 336 (Que. S.C.), consd. [para. 39].

Royal Commission Inquiry into Royal American Shows (No. 3), Re (1978), 40 C.C.C.(2d) 212 (Alta. S.C.T.D.), consd. [para. 39].

Zaduk and The Queen, Re (1977), 37 C.C.C.(2d) 1 (Ont. H.C.), consd. [para. 39].

R. v. Haslam (1977), 12 Nfld. & P.E.I.R. 29; 25 A.P.R. 29; 36 C.C.C.(2d) 250 (Nfld. D.C.), consd. [para. 39].

R. and Kozak, Re (1976), 32 C.C.C.(2d) 235 (B.C.S.C.), consd. [para. 39].

R. v. Kalo, Kalo and Vonschrober (1975), 28 C.C.C.(2d) 1 (Ont. C.C.), consd. [para. 39].

R. v. Blacquiere et al. (1980), 57 C.C.C.(2d) 330 (P.E.I.S.C.), consd. [para. 43].

R. and Collos et al., Re (1977), 37 C.C.C.(2d) 405 (B.C.C.A.), reversing on other grounds 34 C.C.C.(2d) 313 (B.C.S.C.), consd. [para. 43].

R. v. Robinson et al. (1977), 39 C.R.N.S. 158 (B.C.C.C.), consd. [para. 43].

R. v. Hollyoake et al. (1975), 27 C.C.C.(2d) 63 (Ont. Prov. Ct.), consd. [para. 43].

R. v. Crease et al. (No. 2) (1980), 53 C.C.C.(2d) 378 (Ont. C.A.), consd. [para. 51].

R. v. Cardoza (1981), 61 C.C.C.(2d) 412 (Ont. C.C.), consd. [para. 51].

R. v. Gabourie (1976), 31 C.C.C.(2d) 471 (Ont. Prov. Ct.), consd. [para. 51].

R. v. Hancock and Proulx (1976), 30 C.C.C.(2d) 544 (B.C.C.A.), consd. [para. 51].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 178.12, sect. 178.13, sect. 178.14, sect. 178.16.

Authors and Works Noticed:

Bellemare, La revision d’une autorization en ecoute electronique (1979), 39 R. du B. 496 [para. 34].

Cohen, Stanley A., Invasion of Privacy: Police and Electronic Surveillance in Canada (1983) [para. 35].

Manning, Protection of Privacy Act (1974), pp. 135-137 [para. 34].


Robert L. Pollack, for the appellant;

John D. Montgomery, Q.C., for the respondent.

This case was heard on March 14, 1983, at Ottawa, Ontario, before Laskin, C.J.C., Dickson, Estey, McIntyre and Chouinard, JJ., of the Supreme Court of Canada.

On December 15, 1983, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:

McIntyre, J. – see paragraphs 1 to 19;

Dickson, J. – see paragraphs 20 to 57.

Laskin, C.J.C., and Estey, J., concurred with McIntyre, J.

Chouinard, J., concurred with Dickson, J.


R. v. Wilson

[1983] 2 SCR 594

Supreme Court of Canada
Reading Time:
37 minutes
Chouinard, Dickson, Estey, Laskin, McIntyre 

McIntyre, J.
: The appellant was charged with nine counts relating to betting. He was tried before Dubienski, Provincial Court Judge, in the Manitoba Provincial Court. The Crown’s case depended on evidence obtained by wiretap for which it had procured four authorizations under the provision of Part IV.1 of the
Criminal Code
from judges of the Court of Queen’s Bench of Manitoba. Each authorization contained the following words:

“And upon hearing read the affidavit of Detective Sergeant Anton Cherniak; And upon being satisfied that it is in the best interests of the administration of justice to grant this authorization and that other investigative procedures have been tried and have failed, that other investigative procedures are unlikely to succeed, and that the urgency of the matter is such that it would be impractical to carry out the investigation of the undermentioned offences using only other investigative procedures;”

At trial, on cross-examination of the police officer Cherniak, who is referred to in the authorizations, evidence was given that Cherniak had had the sole direction of the investigation and that he had made the applications for the authorizations. He said that the interceptions were made under the authorizations, that they were the sole investigations made and that no other investigation was done or ordered by him after the first authorization. He was unaware of any other investigation steps. It is evident that counsel for the appellant by this line of cross-examination was attempting to ascertain whether or not the above-quoted words from the authorization were true and whether the prescriptions of s. 178.13(1)(b) of the
had been satisfied. That section reads:

“178.13 (1) An authorization may be given if the judge to whom the application is made is satisfied.

) …

) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.”

No objection was taken by the Crown to this line of examination.

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