Dersch v. Canada (Attorney General) [1990] 2 S.C.R. 1505: Interception of private communications -- Whether accused must show prima facie misconduct by applicant before being able to inspect affidavit filed in support of wiretap authorization.

Present: Beetz, McIntyre, Lamer, Wilson, Le Dain, La Forest and L'Heureux-Dubé JJ.

Re-hearing: 1989: October 2; 1990: November 22.

Present: Dickson C.J. and Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier and McLachlin JJ.

Criminal law -- Interception of private communications -- Access to sealed packet -- Whether accused must show prima facie misconduct by applicant before being able to inspect affidavit filed in support of wiretap authorization -- Criminal Code, R.S.C. 1970, c. C-34, s. 178.14 -- Canadian Charter of Rights and Freedoms, ss. 7, 8.

Appellants were charged with various drug trafficking offences. The evidence against them was obtained partly from wiretaps. They were granted access to the sealed packets containing the affidavits used to obtain the wiretap authorizations, but the provincial superior court ruled that the packets should not have been released when the appellants had not shown prima facie misconduct by the applicants for the authorizations. The Court of Appeal affirmed this decision.

Held: The appeal should be allowed.

Per Dickson C.J. and Lamer C.J. and La Forest, Sopinka and Gonthier JJ.: Prima facie misconduct is not required to be shown by an accused who seeks access to the documents relating to an application for a wiretap authorization. The assertion that the admission of the evidence is challenged and that access is required in order to permit full answer and defence to be made is sufficient.

Under s. 178.14(1)(a)(ii) of the Criminal Code, the sealed packet is to be opened only on the order of a judge. The fact that Parliament relies on judicial discretion does not disclose an intention to deny the accused disclosure, but rather indicates that the judge must carefully and thoroughly exercise his discretion taking into account all the interests involved. A series of pre-Charter cases read in certain very restrictive criteria, but the right to make full answer and defence requires disclosure to an accused, since without the information contained in the packet he may not be able to establish that the interception was unlawfully made and thus inadmissible, or unreasonably made and thus in contravention of s. 8 of the Canadian Charter of Rights and Freedoms. The judge still has a discretion but, in the case of an accused, it would not be judicially exercised in conformity with the Charter right unless the application is granted.

Here, the authorization is spent, and the concern with respect to disclosure of police informers and techniques will be addressed by the trial judge in determining the degree to which editing is required. If dissatisfied with the editing, the Crown always has the option of withdrawing tender of the evidence.

Per L'Heureux-Dubé and McLachlin JJ.: The question of whether the packet should be opened is a matter within the discretion of the judge hearing the application, who must balance the interests of the accused in the protection of privacy and a fair trial, including the right to make full answer and defence, with the public interest in the administration of justice. Given the importance of the accused's right to make full answer and defence, the balance will generally fall in favour of opening the packet, subject to editing and special concerns for the administration of justice which may arise in particular cases. Here there is nothing to suggest that the balance mandates any other conclusion than the issuing judge's decision to open the packet.

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