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Judge Throws Out Prosecutors’ Applications in Wiretap Case

  • February 2, 2014
  • Clayton Rice, Q.C.

The four defendants in a wiretap case I have before Justice Brian R. Burrows in the Court of Queen’s Bench, at Edmonton, brought evidence suppression motions regarding historic text messages seized by the police from a telephone service provider. The Crown Attorneys brought counter applications for declarations that the defendants’ motions ¬†were deficient. The prosecutors asked the court for an order requiring the defendants to provide more facts underpinning the motions. This is called an application for better particulars which is a disguised attempt by the state to get disclosure of more information than it is entitled to.

In R. v. Dwernychuk, 1992 ABCA 316 the Alberta Court of Appeal held that when a defendant intends to allege a breach of his or her constitutional rights by the state or its agents, prior notice must be given to the Crown Attorney. This is called a Dwernychuk Notice in Alberta. The notice must specify the right alleged to have been violated, how it was violated and the remedy sought. This kind of pretrial motion is started when a defence lawyer files a document in court called a Charter Notice.

In this case reported as R. v. Croft, 2013 ABQB 604 the state commenced the prosecution when the Attorney General of Canada preferred a direct Indictment. When this is done, the prosecution proceeds directly to trial in the Court of Queen’s Bench with a judge and jury. The use of this charging document deprives the defendant of a preliminary inquiry. Since there are no grand juries in Alberta the defendant thus looses the right to pretrial discovery by way of examination of witnesses. It is a tactic being used more often by the federal and provincial prosecution agencies in Canada. It was also significant that the Crown Attorneys had not provided complete disclosure before they brought their applications. Justice Burrows observed, at para. 11, that in light of the direct Indictment and incomplete disclosure, “…the scope of the various applications is as clear as it can or needs to be at present.”

In dismissing the state’s applications for better particulars, Justice Burrows stated the following, at paras. 12-13:

While the authorities indicate that the Court has a discretion as to whether to permit the accused to conduct a voir dire in relation to the alleged Charter violation and that in determining how to exercise that discretion the Court may require the accused to summarize the evidence he intends to rely upon, they do not suggest that a notice must include all of the facts which the applicant intends to prove to meet the onus which rests on him in the application. Neither is it required that the notice set out the argument to be made in support of the application.

A notice of motion in this criminal context is not the equivalent of a statement of claim in a civil proceedings. It is not expected that the notice of motion will set out all the facts which the applicant intends to prove in order to establish the grounds for his application. The notice of motion in this context is more in the nature of a civil notice of application which is sufficient if it states briefly the grounds for the application, identifies the relief sought and identifies the materials and evidence to be relied upon.

 

These motions in Croft fell on the heels of the decision in R. v. Telus Communications Co., 2013 SCC 16 where the Supreme Court of Canada held that a general warrant could not be used to authorize the police to seize prospective text messages. That kind of search and seizure requires a wiretap authorization. However, the Supreme Court did not consider whether a production order could be used by the police to seize historic text messages. That issue would be decided next in the Croft motions.

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