R. v. G.
Ontario Court of Justice (General Division)
Brampton, Ontario
Hill J.
Heard: September 14 and 24, 1998.
Judgment: October 6, 1998.
The Crown tried in this case to deny my client his right to argue his trial had been unreasonably delayed by threatening to cross-examine him on an affidavit he was required to file in support of the application. A police officer was going to sit in court and listen to my client’s voice so he could testify on the trial proper it was his voice on wiretapped conversations. The Canadian Charter of Rights and Freedoms was successfully utilized to prevent this from happening.
Application by the accused for a pre-trial determination of their constitutional rights pursuant to the Canadian Charter of Rights and Freedoms respecting a proposed cross-examination on affidavits by the Crown. In two preferred indictments several accused were charged with importing cocaine, possession of cocaine for the purpose of trafficking, attempt to possess cocaine for the purposes of trafficking, conspiracy to possess cocaine for the purposes of trafficking, and conspiracy to import cocaine. Electronic interception of private communications was a significant investigative measure employed by the police. The Crown preferred indictments before the preliminary inquiries were complete and before any voice identification evidence was led. The accused contended that there had been no disclosure of voice identification evidence prior to the preliminary inquiry and that certain admissions made by the accused at the inquiry were premised on the Crown producing its identification evidence at that hearing. The accused brought a motion to stay the proceedings on the basis that their right to a trial within a reasonable time had been breached. In accordance with their obligation under the Criminal Proceedings Rules, the accused executed affidavits in support of that Charter application. The Crown proposed to cross-examine the accused on their affidavits and the accused refused to submit to the examinations because of concerns that the cross-examinations would be used for voice identification later at trial. The Crown provided an undertaking to two of the accused not to use their examinations for that purpose. The remaining accused asserted that they were being forced to give up their right to remain silent and their right not to provide potentially self-incriminatory evidence in order to assert their Charter claim that their right to be tried within a reasonable time had been breached. The Crown contended that if a breach of the right to silence or the right not to incriminate oneself occurred as a result of the cross- examinations, the trial judge could prevent the introduction of that evidence and the rights of the accused could be properly protected. At issue was whether the use of recorded cross-examinations in one proceeding to demonstrate voice identification evidence in a subsequent proceeding constituted testimonial compulsion deserving of constitutional protection.
HELD: Application granted. The accused had an obligation to provide an affidavit respecting actual prejudice while the Crown was entitled to cross-examine on the affidavits pursuant to the Criminal Proceedings Rules. Whether described as a principle of fundamental justice or as an integral feature of maintaining the integrity of the judicial system, the accused had to be given reasonable access to the court system to secure protection of their constitutional rights and to receive constitution-based remedies. Although there would be only an apprehended breach of the right against self- incrimination at the time of the cross-examination, the use of the pre-trial motion testimony as an aspect of voice identification opinion evidence at trial would involve the right against self-incrimination. The Crown’s procedure would be bound to intimidate and to hinder the accused from coming to court to complain of Charter violations. In the circumstances, access to justice would be denied and the fundamental fairness of the criminal process would be compromised. However, the motions judge ruled that he did not have the authority to declare testimonial use immunity respecting the cross- examination of the accused at a future trial. Pursuant to section 136 of the Courts of Justice Act, the court had the authority to make orders to control its own records. The court ordered that the accused were to be cross-examined on their affidavits and that there could be no audio recording made except by a court reporter. The court audiotapes were to remain in the custody of the court and were not to be audited or copied by anyone other than the court reporter. A witness exclusion order during the examination was also granted.
Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, 1982, ss. 2(b), 7, 8, 10(a), 10(b), 11(b), 13, 24(1).
Courts of Justice Act, ss. 91, 136(1), 136(2)(b), 136(3)(a).
Criminal Code, s. 577.
Ontario Court of Justice Criminal Proceedings Rules, Rules 4.06(2), 6.11(4), 27.05(1)(c), 27.05(2).
Ontario Rules of Civil Procedure, Rule 34.02(2).
Counsel:
C. Michaelson and A. Sabbadini, for A.G. Canada.
R. Rusonik, for Barrington Gordon
1 All applicants allege violation of their right to be tried within a reasonable length of time as guaranteed by s. 11(b) of the Charter.
2 A preliminary procedural point of some significance has impeded the commencement of the argument of the s. 11(b)/s. 24(1) motions as most of the applicants are resisting cross-examination on their affidavits filed in support of the unreasonable delay/stay of proceedings applications…
11 Electronic interception of private communications was a significant investigative measure employed by the authorities respecting the charges before the court…
27 The refusal of some counsel to have their clients submit to cross-examination related to concern that any cross-examination conducted upon an applicant’s affidavit not be employed at trial for voice identification or other purposes by the prosecution.
28 On August 26th, 1998, the Crown filed an application for directions returnable on August 28th, 1998. In its supporting documentation, the Crown stated:
The applicant [the Crown] intends to use the testimony of the respondents for the purpose of voice identification. It is the applicant’s position that the respondents cannot restrict the use to which their testimony will be put to by the applicant…
THE VOICE IDENTIFICATION ISSUE
32 It was submitted by counsel for the applicants that as of the commencement of the preliminary inquiry, in January of 1997, there had been no disclosure of voice identification evidence to be called on the part of the prosecution.
33 On July 10th, 1997, in cross-examination of a Crown witness, Corporal Decker, the applicants learned, for the first time, that a voice identification line-up of sorts had been conducted by the investigating authorities. The applicants, on arrest, were processed in July of 1995 at the Toronto Airport. As they were fingerprinted and photographed and underwent the ordinary processing protocol, police voice monitors, concealed at the scene, were surreptitiously able to hear any exchanges between the applicants and the processing police officers. The objective of this procedure was to assist the investigators with the voice identification issue. There had been no disclosure of any notes to counsel for the applicants respecting this listening post procedure. Apparently, no notes were made nor were any of the utterances of the applicants recorded from the processing at the airport…
POSITION OF THE APPLICANTS
47 The applicants acknowledge that the Crown has a right to cross-examine them on their affidavits. However, given the avowed objective of the government to attempt to use the cross-examinations to bolster its voice identification evidence at trial, the applicants see themselves at this time to be in an abusive and offensive environment. It is submitted that the applicants are forced to the choice of giving up their right to remain silent and their right not to provide potentially self-incriminatory evidence to the police in order to assert a violation of their s. 11(b) Charter right before the court. In effect, it is said that the s. 11(b) Charter application acts as a trap against the interests of the applicants.
48 It is said that the applicants ought not to be in a position of assisting the Crown in the preparation of the case to meet by exposing themselves to a voice line-up in the course of attempting to assert their Charter rights. It is submitted that the Crown is attempting to take advantage of the court process and is co-opting the adjudicative function. Some of the applicants have submitted that s. 7 of the Charter will be breached by the questioning of the applicants upon their affidavits by Crown counsel motivated, at least in part, by an evidence-gathering objective.
49 It is submitted that any voice identification evidence garnered by government agents through the auditing of cross-examinations upon the s. 11(b)/s. 24(1) Charter affidavits would in all circumstances be inadmissible against the applicants at their trial given the protection of s. 13 of the Charter and the related jurisprudence. It is submitted that, because the introduction of such evidence would violate s. 13 of the Charter, the Court should act, in an anticipatory fashion, to defeat a pending breach of the Charter in this regard.
50 The applicants submitted that their exposure or risk of contributing to the government’s voice identification evidence, in the absence of a remedy from a court at this time, will undoubtedly lead to them withdrawing the s. 11(b)/s. 24(1) applications until the conclusion of the Crown’s case at trial. This will serve to exacerbate what is already said to be constitutionally intolerable delay.
51 The applicants recommended to the court an array of remedial actions designed to eliminate self-incriminatory exposure during cross-examination upon their affidavits. Prophylactic measures suggested to the court included the following: an in camera hearing before the court during which the cross-examinations would be conducted; a prohibition against the examiner’s office being permitted to record, broadcast or publish anything heard during the cross-examinations; a publication and audio recording ban extended to the court and others; a present declaration of use immunity respecting the cross-examination testimony preventing the Crown at trial from supplementing its voice identification evidence with evidence gathered during the cross-examinations; an order excluding anyone from being present during the cross-examinations who is or may be called to testify at trial; a stay of proceedings for abuse of process; or an adjournment of the s. 11(b)/s. 24(1) applications…
ANALYSIS
Testifying in the s. 11(b)/s. 24(1) Charter Hearing
59 The burdens of persuasion and production are upon the applicant to establish a breach of s. 11(b) of the Charter. From a constitutional perspective, in considering how long is too long, one of the factors to be analysed is prejudice to the accused: Morin v. The Queen (1992), 71 C.C.C. (3d) 1 (S.C.C.) at 13 per Sopinka J. Proof of the existence of prejudice occasioned by delay is essential to establishing intolerable delay. Prejudice may be inferred from the passage of time or real or actual prejudice may be demonstrated by the applicant producing evidence directed to his or her personal circumstances and in particular to issues of security of the person, liberty, and fair trial interests…
60 While an affidavit speaking to actual prejudice may be filed “on behalf” of an applicant, as opposed to an affidavit of the applicant, only non-contentious facts may be the subject of a third party affidavit stating facts on information and belief (Rules (6.11(4), 4.06(2) of the Ontario Court of Justice Criminal Proceedings Rules (the Rules)). Affidavits reciting secondhand information, as opposed to an accused person’s own affidavit, often amount to little more than a clumsy subterfuge: Regina v. Kutynec (1992), 70 C.C.C. (3d) 289 (Ont. C.A.) at 299 per Finlayson J.A.
61 At the end of the day, the rules of court and the prevailing jurisprudence compel, at least indirectly, that the applicant’s own affidavit be filed on the subject of actual prejudice…
63 The applicants agree that, in the ordinary case, the compulsion to provide an affidavit of the accused regarding actual prejudice, arising from the rules of court and the prevailing jurisprudence respecting delay-to-trial cases, does not infringe the rights to remain silent and not to be compelled to testify against oneself. The applicants quite properly recognize that cross-examination of an accused person, on an affidavit filed in support of a pre-trial motion, may be employed for the limited purpose of impeaching the credibility of the accused should he or she testify at trial: The Queen v. Kuldip (1991), 61 C.C.C. (3d) 385 (S.C.C.); The Queen v. Calder (1996), 105 C.C.C. (3d) 1 (S.C.C.). It is submitted that that is the limit of the accused’s exposure or waiver of the right to remain silent — there is no real or true consent beyond that to the risk of contributing to the Crown’s building of a case to meet.
The s. 13 Charter Argument
64 Section 13 of the Charter provides:
A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
65 In Dubois v. The Queen (1986), 22 C.C.C. (3d) 513 (S.C.C.) at 528, McIntyre J. held that testimony of an accused on a voir dire held during the course of a trial amounts to evidence given in another proceeding. As observed by McIntyre J. in Mills v. The Queen (1986), 26 C.C.C. (3d) 481 (S.C.C.) at 494-5, “The pre-trial motion and its near relative, the preliminary motion or preliminary objection, are well known in the law and may be employed in seeking s. 24(1) relief once an indictment has been preferred”. In my view, a s. 11(b)/s. 24(1) Charter application heard by a member of the trial court is clearly “another proceeding”.
66 Section 13 of the Charter is a protection directed against self-incrimination through the use of one’s previous testimony. The presumption of innocence underlies the right. Intrinsic to the right is that establishing the “case to meet” is the legal obligation of the Crown — “… it means specifically that the accused enjoys the initial benefit of a right of silence’ and its corollary, protection against self-incrimination”: Dubois v. The Queen, supra at 532. By excluding the substantive admissibility of testimony from another proceeding, s. 13 protects individuals from being indirectly compelled to incriminate themselves.
67 Section 13 applies to testimony from an earlier proceeding whether voluntarily given or as a witness under compulsion: Dubois v. The Queen, supra at 534.
68 Leaving aside the use of previous testimony to cross-examine, “… any evidence the Crown tenders as part of its case against the accused is, for the purpose of s. 13, incriminating evidence”: Dubois v. The Queen, supra, at 537. This may include an attempt to use prior testimony as consciousness of guilt: The Queen v. Mannion (1986), 28 C.C.C. (3d) 544 (S.C.C.). Interpretation of incrimination within s. 13, consistent with protection of the underlying values associated with the “case to meet” principle, must be one which defeats the purpose of establishing guilt through the admission of prior testimony. In this sense, prior testimony sought to be led for the truth of its contents infringes the s. 13 Charter right: Kuldip v. The Queen, supra at 397 per Lamer J. (as he then was).
69 In Regina v. Skinner (1988), 42 C.C.C. (3d) 575 (Ont. C.A.), the court held that it amounted to a breach of s. 13 of the Charter for a Crown witness to provide identification evidence respecting the accused originating entirely in the testimony of the accused as a witness in a prior proceeding.
70 In this case, the prosecution wishes to use an audiotape of the applicants’ cross-examinations, or an auditing of the examinations by voice monitors, to compare to the sound of voices in recorded intercepted private conversations in an effort to adduce opinion evidence, in the trial of the applicants, as to the identity of the speakers in the wiretap conversations. The objective of this approach, while not employing the testimonial content of the prior testimony to prove guilt, seeks to use the sound or aural quality of the prior testimony in furtherance of establishing proof of relevant out-of-court statements made by an accused person. The applicants submit that this purpose is equally designed to incriminate and offensive to the purpose and spirit of s. 13 of the Charter.
71 The American jurisprudence, applying an interpretation of the Fifth Amendment protection from being compelled in any criminal case to be a witness against oneself, holds that compulsion of an accused to exhibit physical characteristics such as voice is not testimonial or communicative and accordingly undeserving of constitutional protection. The compelled production of voice exemplars or repetition of words by an accused person is not viewed as self-incriminatory: United States v. Wade, 388 U.S. 218 (1967); United States v. Dionisio, 410 U.S. 1 (1973); Gilbert v. California, 388 U.S. 263 (1967); United States v. Leone, 823 F. 2d 246 (8th Cir. 1987).
72 The American approach continues to perpetuate the narrow interpretation of incrimination originating in the plurality decision in Schmerber v. State of California, 382 U.S. 757 (1966) that only compelled evidence of a testimonial or communicative character is worthy of constitutional protection. In this sense then, coercion of an accused to produce voice to identify him or her is characterized not as a source of information against himself or herself but as a source of real or physical evidence.
73 A purposeful interpretation, a flexible and contextual interpretation, of s. 13 of the Charter is not so limited.
74 In Stillman v. The Queen (1997), 113 C.C.C. (3d) 321 (S.C.C.) at 353-5 Cory J. stated:
Evidence will be conscriptive when an accused, in violation of his Charter rights, is compelled to incriminate himself at the behest of the state by means of a statement, the use of the body or the production of bodily samples. The traditional and most frequently encountered example of this type of evidence is a self-incriminating statement made by the accused following a violation of his right to counsel as guaranteed by s. 10(b) of the Charter. The other example is the compelled taking and use of the body or of bodily substances of the accused, such as blood, which lead to self-incrimination. It is the compelled statements or the conscripted use of bodily substances obtained in violation of Charter rights which may render a trial unfair.
. . .
It is only in recent times that the compelled use of the body of the accused has been considered. Yet, it cannot be forgotten that in Collins, supra, Lamer J. astutely observed that “the situation is very different with respect to cases where, after a violation of the Charter, the accused is conscripted against himself through a confession or other evidence emanating from him. The use of such evidence would render the trial unfair, for it did not exist prior to the violation, and it strikes at one of the fundamental tenets of a fair trial the right against self-incrimination” (p. 284). The carefully worded phrase “or other evidence emanating from him” gives a clear indication that the compelled or conscripted use of bodily substances in violation of the Charter will tend to render the trial unfair.
It is contended that the taking of bodily substances should not be subject to the same protection as statements or confessions. Statements, it is said, are a product of the mind which would not exist but for the Charter violation. Bodily substances on the other hand already exist. Thus it is said that the body itself or identifying marks on it may always be used for identification. As a result, it is argued that bodily substances should always be available for testing and identification.
Those who take this position rely upon the decision of the U.S. Supreme Court in Schmerber v. California, 384 U.S. 757 (1966). There, a blood sample was taken without the consent of the accused. It was contended that the taking infringed his right against self-incrimination. It was conceded that the state compelled him to submit to the taking to discover evidence that might be used to prosecute him. In a 5 to 4 decision the majority found the right against self-incrimination only guaranteed the right “to remain silent unless he chooses to speak in the unfettered exercise of his own will” (p. 760). The minority were of the view that taking the blood constituted a breach of the right against self-incrimination. I must say I prefer the view of the minority. Black J. in his dissenting reasons stated at p. 778:
How can it reasonably be doubted that the blood test evidence was not in all respects the actual equivalent of “testimony” taken from the petitioner when the result of the test was offered as testimony, was considered by the jury as testimony, and the jury’s verdict of guilt rests in part on that testimony? The refined, subtle reasoning and balancing process used here to narrow the scope of the Bill of Rights’ safeguard against self-incrimination provides a handy instrument for further narrowing of that constitutional protection, as well as others, in the future. Believing with the Framers that these constitutional safeguards broadly construed by independent tribunals of justice provide our best hope for keeping our people free from governmental oppression …
. . .
We are dealing with the right of privacy which, since the Breithaupt case, we have held to be within the penumbra of some specific guarantees of the Bill of Rights. Griswold v. Connecticut, 381 U.S. 479. Thus, the Fifth Amendment marks “a zone of privacy” which the Government may not force a person to surrender. Id, 484. Likewise the Fourth Amendment recognizes that right when it guarantees the right of the people to be secure “in their persons.” Ibid. No clearer invasion of this right of privacy can be imagined that forcible bloodletting of the kind involved here.
It has, for a great many years, been considered unfair and indeed unjust to seek to convict on the basis of a compelled statement or confession. If it was obtained as a result of a breach of the Charter its admission would generally tend to render the trial unfair. Similarly, to compel an accused to use his body or to provide bodily substances in order to incriminate himself would generally render the trial unfair. This is so because the compelled production of bodily parts or substances is just as great an invasion of the essence of the person as is the compelled conscripted statement.
75 While the observations of Cory J. were made in the context of ss. 7 and 8 of the Charter, rights acutely concerned with state coercion, the values associated with fairness and individual dignity are surely as applicable to the scope of s. 13 of the Charter. The thrust of the vigorous dissent in Schmerber was, for all intents and purposes, repeated in the minority views expressed in the Wade decision. At page 245, Black J. stated:
I dissented from that holding [Schmerber v. State of California, supra], and still dissent. The Court’s reason for its holding was that the sample of Schmerber’s blood taken in order to convict him of crime was neither testimonial’ nor communicative’ evidence. I think it was both. It seems quite plain to me that the Fifth Amendment Self-Incrimination Clause was designed to bar the Government from forcing any person to supply proof of his own crime, precisely what Schmerber was forced to do when he was forced to supply his blood … So here, having Wade in its custody awaiting trial to see if he could or could not be convicted of crime, the Government forced him to … speak certain words, in order to make it possible for government witnesses to identify him as a criminal. Had Wade been compelled to utter these or any other words in open court, it is plain that he would have been entitled to a new trial because of having been compelled to be a witness against himself. Being forced by the Government to help convict himself and to supply evidence against himself by talking outside the courtroom is equally violative of his constitutional right not to be compelled to be a witness against himself.
76 In Regina v. Pelland (J.R.) (1997), 99 O.A.C. 62 (C.A.), the appellant argued that the circumstances of the obtaining of his voice sample in one investigation, and its intended use as evidence of voice identification respecting a charge laid in another investigation, violated his s. 7, 8, 10(a) and 10(b) Charter rights. In declining to find a breach of s. 7 of the Charter, the court noted that, at the time of the surreptitious recording of his voice, the accused knew he was speaking to a police officer and willingly chose to speak to him. As to the s. 8 Charter issue, the court stated at page 65:
Turning next to the alleged violation of the appellant’s privacy rights under s. 8 of the Charter, we are not persuaded that the appellant had any reasonable expectation of privacy in the sound of his voice. The sound of one’s voice is a physical characteristic much the same as a person’s physical appearance. Accordingly, we are of the view that the surreptitious recording of the appellant’s voice did not amount to a violation of his s. 8 Charter rights. Of importance, we note that the content of the voice sample itself was innocuous and it did not in any way implicate the appellant in criminality. Rather, upon request, the appellant merely volunteered a brief history of his family background.
The Pelland case was heard two weeks after the release of the Stillman judgment by the Supreme Court of Canada and contains no reference to the Stillman decision. In any event, the expectation of privacy analysis in Pelland is of little assistance in the study of incrimination arising in circumstances of testimony compelled, if only indirectly, in furtherance of the pursuit of a remedy for the alleged violation of a constitutional right (here, s. 11(b) of the Charter).
77 It seems to me, unlike the giving of evidence in a Charter application, that an applicant for constitutional relief would be hard-pressed to argue that exhibiting his or her physical appearance in a public courtroom implicates unreasonable search, right to silence or self-incrimination concerns. In that instance, nothing emanates or is removed from the body and there is no affront to human dignity and privacy.
78 Context is significant. While we generally, in our daily lives, bear the risk of the “tattle-tale” (Duarte v. The Queen (1990), 53 C.C.C. (3d) 1 (S.C.C.) at 14 per La Forest J.), not every venue is as unprotecting of speech. While we may, in some circumstances, be compelled to reveal information about ourselves, “… situations abound where the reasonable expectations of the individual [are] that the information shall … [be] … restricted to the purposes for which it is divulged”: Dyment v. The Queen (1989), 45 C.C.C. (3d) 244 (S.C.C.) at 256 per La Forest J.
79 I am encouraged in my analysis by those Canadian decisions which have held that the attempted use of the aural quality of evidence in one proceeding as voice identification evidence in a subsequent proceeding constitutes an incriminating purpose contrary to s. 13 of the Charter: Regina v. Lee (1986), 36 C.R.R. (2d) 162 (Ont. Ct. Gen. Div.) at 167-8 per Boyko J.; Regina v. Tarafa (1990), 53 C.C.C. (3d) 472 (Que. S.C.) at 475-6 per Barrette-Joncas J.; Regina v. Sicurella et al. (1998), 120 C.C.C. (3d) 403 (Ont. Ct. Prov. Div.) 427-432, 441 per Renaud Prov. Div. J.
Anticipatory Breach and Conduct of the Department of Justice
80 Although the applicants, Gordon, Sinclair and Thomas, were far from certain or unanimous in their submissions as to the appropriate remedial action required of the court, all agreed that s. 24(1) of the Charter constituted the authority to redress the situation presented by the prosecutorial approach to the cross-examinations.
81 Section 24(1) provides:
Anyone whose rights and freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedies as the court considers appropriate and just in the circumstances.
82 From a purely textual perspective, the jurisdiction of the court appears to be engaged only where a constitutionally entrenched right or freedom is alleged to have already been infringed or denied. On this view of s. 24(1), the court would not be in a position to entertain an application for a pre-emptive or prophylactic order respecting an assertion of future or imminent violation of a constitutional right.
83 Particularly with respect to the s. 13 Charter argument advanced by the applicants, it cannot be said that a violation of this provision’s self-incrimination protection has occurred in circumstances of the Crown’s stated intentions as to future events. The s. 13 Charter self-incrimination protection of evidentiary use immunity only inures to an individual at the moment an attempt is made, in a subsequent proceeding, to utilize previous testimony to incriminate him or her: Dubois v. The Queen, supra at 532-7.
84 However, the scope of s. 24(1) extends as well to a preventative function respecting a threatened violation of a Charter right: Operation Dismantle et al. v. The Queen (1985), 18 D.L.R. (4th) 481 (S.C.C.) at 485, 487, 490, 491-493 per Dickson J. (as he then was); The Queen v. Vermette (1988), 41 C.C.C. (3d) 523 (S.C.C.) at 529-530 per La Forest J.
85 In order to establish a real and imminent threat of breach of a Charter right, an applicant for a s. 24(1) Charter remedy must demonstrate more than belief or opinion founded in conjecture or speculation. In this regard, Dickson J. stated at pages 491-2 of the Operation Dismantle decision:
The principles governing remedial action by the courts on the basis of allegations of future harm are illustrative of the more general principle that there is no legal duty to refrain from actions which do not prejudice the legal rights of others. A person, whether the government or a private individual, cannot be held liable under the law for an action unless that action causes the deprivation, or threat of deprivation, of legal rights. And an action cannot be said to cause such deprivation where it is not probable that the deprivation will occur as a result of the challenged action. I am not suggesting that remedial action by the courts will be inappropriate where future harm is alleged. The point is that remedial action will not be justified where the link between the action and the future harm alleged is not capable of proof.
. . .
None of this is to deny the preventative role of the declaratory judgment. As Madame Justice Wilson points out in her judgment, Borchard, Declaratory Judgments, 2nd ed. (1941), at p. 27, states that:
… no “injury” or “wrong” need have been actually committed or threatened in order to enable the plaintiff to invoke the judicial process; he need merely show that some legal interest or right of his has been placed in jeopardy or grave uncertainty …
. . .
It is clearly illustrated by the rules governing declaratory and injunctive relief that the courts will not take remedial action where the occurrence of future harm is not probable. This unwillingness to act in the absence of probable future harm demonstrates the courts’ reluctance to grant relief where it cannot be shown that the impugned action will cause a violation of rights.
86 I was invited by counsel for Clive Thomas to find that the sole purpose for the Department of Justice seeking to cross-examine was to further its criminal investigation and to bolster its woefully inadequate voice identification case against some of the applicants. It was argued, in effect, that reference to any interest in cross-examination relating to the prejudice issue is a sham. The defence submissions allege improper motivation on the part of the Crown — cross-examination on the prejudice issue as a ruse or subterfuge to the conduct of an identification parade. In the alternative, it was submitted that the cross-examination, as a continuing investigative opportunity, was the “predominant” objective of the intended cross-examination.
87 In response, the Crown submits that “the predominant purpose of the intended cross-examination is to test the applicants’ evidence that they suffered particular prejudice”. Further, the Crown stated in its written argument:
… the Crown intends to have monitors present during the cross-examination of the applicants …
. . .
… the Crown also intends to seek to utilize the reporter’s audio recording of the cross-examinations for the purpose of voice identification …
88 The parties appear to have seized upon the characterization of “predominant” purpose in compelling testimony as a result of the role of this expression in British Columbia Securities Commission v. Branch et al.; Attorney General of Canada et al. (1995), 97 C.C.C. (3d) 505 (S.C.C.) at 512-513 per Sopinka and Iacobucci JJ.
89 As I understand it, the applicants submit that the present circumstances should permit an exemption from compulsion to testify in the first proceeding, in the cross-examinations, or at least exemption from testifying in an environment with a risk of self-incrimination. In this regard, reliance is placed on the words of Sopinka and Iacobucci JJ. in British Columbia Securities Commission v. Branch et al.; Attorney General of Canada et al., supra at 512-3:
In view of the conclusions reached in S. (R.J.) [(1995), 96 C.C.C. (3d) 1 (S.C.C.)], any test to determine compellability must take into account that if the witness is compelled, he or she will be entitled to claim effective subsequent derivative use immunity with respect to the compelled testimony or other appropriate protection. The common feature of the respective compellability tests proposed in the reasons in S. (R.J.) is that the crucial question is whether the predominant purpose for seeking the evidence is to obtain incriminating evidence against the person compelled to testify or rather some legitimate public purpose. This test strikes the appropriate balance between the interests of the state in obtaining the evidence for a valid public purpose on the one hand, and the right to silence of the person compelled to testify on the other.
In applying this test, the court must first determine the predominant purpose for which the evidence is sought. To qualify as a valid public purpose, compelled testimony in a criminal prosecution or prosecution under a provincial statute must be for the purpose of obtaining evidence in furtherance of that prosecution. In S. (R.J.), Sopinka J. suggested some guidelines for determining whether this is the predominant purpose. In other proceedings, discerning the purpose is more complex. Where evidence is sought for the purpose of an inquiry, we must first look to the statute under which the inquiry is authorized. The fact that the purpose of inquiries under the statute may be for legitimate public purposes is not determinative … Indeed, even if the terms of reference authorize an inquiry for a legitimate purpose in some circumstances, the object of compelling a particular witness may still be for the purpose of obtaining incriminating evidence.
It would be rare indeed that the evidence sought cannot be shown to have some relevance other than to incriminate the witness. In a prosecution, such evidence would simply be irrelevant. There may, however, be inquiries of this type and it would be [page 513] difficult to justify compellability in such a case. In the vast majority of cases, including this case, the evidence has other relevance. In such cases, if it is established that the predominant purpose is not to obtain the relevant evidence for the purpose of the instant proceeding, but rather to incriminate the witness, the party seeking to compel the witness must justify the potential prejudice to the right of the witness against self-incrimination. If it is shown that the only prejudice is the possible subsequent derivative use of the testimony, then the compulsion to testify will occasion no prejudice for that witness. The witness will be protected against such use. Further, if the witness can show any other significant prejudice that may arise from the testimony such that his right to a fair trial will be jeopardized, then the witness should not be compellable.
We recognize that the purpose of calling a particular witness will not be readily apparent and that such purpose must be inferred in many cases from the overall effect of the evidence proposed to be called. If the overall effect is that it is of slight importance to the proceeding in which it is compelled but of great importance in a subsequent proceeding against the witness in which the witness is incriminated, then an inference may be drawn as to the real purpose of the compelled evidence. If that relationship is reversed, then no such inference may be drawn. As stated in S. (R.J.), the issue of compellability may arise at the time when the witness is called to testify (the subpoena stage) and at a subsequent penal proceeding against the witness (the trial stage). By reason of the foregoing, the true purpose of the evidence will often not be apparent until the latter stage.
As in the case of any breach of Charter rights, the burden of establishing a breach is on the party alleging it. In this context, the burden of proof with respect to the predominant purpose of the compelled testimony will be on the witness who asserts that it is not sought for a legitimate purpose. If this is established, the witness should not be compelled unless the party seeking to compel the witness justifies the compulsion as referred to above.
90 In 116533 Ontario Ltd. v. Celluland Canada Inc., [1996] O.J. No. 3417 (Gen. Div.), at para. 1, Ground J. stated that “… the purpose of cross-examinations on affidavits is to test the evidence and the credibility of the deponent”. I agree. In Canada Metal Co. Ltd. et al. and Heap et al. (1975), 7 O.R. (2d) 185 (C.A.) at 192, Arnup J.A. cautioned against invoking a process of examination, designed for the purpose of eliciting relevant evidence, for an ulterior or improper purpose.
91 On the record, I am unable to conclude that the prosecution is engaged in a colourable attempt to pervert the court process in the sense of using the cross-examinations for a reason entirely unrelated to defending the s. 11(b)/s. 24(1) applications. The Crown’s position on the subject of prejudice, a matter peculiarly within the knowledge of the applicants, would be seriously diminished were the affidavits to stand unchallenged. The most reasonable view of the matter is that cross-examination on the prejudice issue and taking advantage of what is seen to be an investigative opportunity are both important objectives of the Crown. I am unable to say which, if either, may be a predominant purpose driving the announced cross-examinations.
92 In light of this observation, I am unable to say that, in the circumstances known to the court, it has been established that there has been an entirely improper invocation of the cross-examination process or arbitrary motivation to the exercise of the Crown’s discretion in giving notice to cross-examine. Such an allegation must of course be supportable by the record or an offer of proof: Regina v. Durette et al. (1992), 72 C.C.C. (3d) 421 (Ont. C.A.) at 438 per Finlayson J.A. (reversed on other bases — sub nom Farianacci et al. v. The Queen (1994), 88 C.C.C. (3d) 1 (S.C.C.)).
93 I specifically decline to determine whether the conduct of the government of having voice monitors present during the applicants’ cross-examinations would amount to an abuse of process — conduct violating these fundamental principles of justice which underlie the community’s sense of fair play and decency: O’Connor v. The Queen (1996), 103 C.C.C. (3d) 1 (S.C.C.) at 33-36 per L’Heureux-Dubé J. This issue need not be decided. It is sufficient to say that I am inclined to the view that the proposed investigative technique is a novel one — one informed by a clear government miscalculation as to the necessary balance of interests at stake.
94 Like abuse of process though, which not frequently involves an overlap between prejudice to the individual and prejudice to the judicial system, there exists, as I will more fully discuss momentarily, a discretion in the court, in circumstances falling short of abuse of process, to control its own process to ensure fundamental fairness and respect for the integrity of the court’s procedures.
95 A related submission of the applicants is the assertion that the prosecution representation of its intention to prove voice identification respecting Gordon, Thomas and Sinclair exclusively through voice monitor witnesses amounted to an enforceable and binding undertaking.
96 I am not satisfied, on the facts of this case, that the Crown at any time provided an irrecovable and unequivocal undertaking to establish voice identification through voice monitor evidence secured solely in the initial investigation. The police have a right and duty to continue to investigate crimes even after arrest: Storrey v. The Queen (1990), 53 C.C.C. (3d) 316 (S.C.C.) at 326 per Cory J. The consequential duty on the Crown is to continue to make timely disclosure: Stinchcombe v. The Queen (1992), 68 C.C.C. (3d) 1 (S.C.C.) at 11, 14 per Sopinka J.
The Location of the Proposed Cross-Examination
97 Rule 6.11(4) contemplates cross-examination on an affidavit by an opposing party. The rule contemplates cross-examination before an examiner with a filing of the transcript of cross-examination before the judge hearing the application. As reflected in the pre-trial orders of Thomas J., the prevailing practice in this jurisdiction, with the pressures upon in-court time, is for cross-examinations to be conducted under the auspices of an examiner in advance of the hearing.
98 While the rule speaks of examination before a “special examiner”, I agree with the observation of counsel for the Attorney General of Canada that the examiner in question is presumably an “official examiner” as referred to in the Courts of Justice Act and the Rules of Civil Procedure.
99 The Crown relies on the open court principle to the extent of submitting, at least with respect to the presence of voice monitors at the situs of the cross-examinations, that such government agents are simply exercising their right of public attendance. As with any member of the public or representative of the media, present for their own purposes, the monitors, it is argued, are free to fulfil their particular investigative objectives.
100 The Crown submits that exclusion of its agents would offend the public nature of trial proceedings including pre-trial proceedings.
101 Not every investigatory technique used by the police is a “search” within the meaning of s. 8 of the Charter: Evans and Evans v. The Queen (1996), 104 C.C.C. (3d) 23 (S.C.C.) at 29 per Sopinka J. For example, it is difficult to see any reasonable expectation of privacy where something is exposed in plain view in a location open to the public: Regina v. Fitt (1995), 96 C.C.C. (3d) 341 (N.S.C.A.) at 344-6 per Hallett J.A. (affirmed (1996), 103 C.C.C. (3d) 224 (S.C.C.) at 224 per curiam). Accordingly, from a search and seizure perspective, it cannot be said that the police activity of conducting a warrantless seizure of the sounds of the voices of the applicants in open court amounts to a breach of s. 8.
102 One cannot understate the significant contribution of the open court principle, embodied in the common law and s. 2(b) of the Charter, to the concepts of representative democracy and public scrutiny of the criminal courts: Re Canadian Broadcasting Corp and Attorney General for New Brunswick et al. (1997), 110 C.C.C. (3d) 193 (S.C.C.) at 201-206 per La Forest J.; Re Dagenais et al. and Canadian Broadcasting Corp. et al. (1995), 94 C.C.C. (3d) 289 (S.C.C.) at 315-317 per Lamer C.J.C.; Re Vickery and Prothonotary of the Supreme Court of Nova Scotia (1991), 64 C.C.C. (3d) 65 (S.C.C.) at 93-5 per Stevenson J.; Attorney General of Nova Scotia et al. v. MacIntyre et al. (1982), 65 C.C.C. (2d) 129 (S.C.C.) at 145-149 per Dickson J. (as he then was).
103 The open court rule is of course not absolute and may, depending upon the context, yield in the degree of its application to a balancing of legitimate and significant interests. In Regina v. Laws, [1998] O.J. No. 3623 (C.A.), the court stated at para. 21:
Trial judges are entitled to maintain a discretion to exclude members of the public when circumstances warrant. However, this discretion should not be exercised arbitrarily. Furthermore, the discretion should not be exercised in the absence of an evidentiary foundation and must be exercised in accordance with the Charter.
This statement applies with equal force to pre-trial proceedings conducted before a member of the trial court. A long-standing and relatively benign example of exclusion involves witnesses and potential witnesses being excluded from court proceedings, including pre-trial motions, in an effort to avoid the influence, consciously or unconsciously, of earlier evidence upon their subsequent testimony.
104 Several authorities have taken the position that an examiner’s office is not a public court and that an examiner may admit or exclude persons according to the circumstances of each case and according to what the examiner considers best calculated to secure the ends of justice: Smith et al. v. Walnut Dairy Ltd. et al., [1945] O.W.N. 801 (Master Conant) at 802 (affirmed [1945] O.W.N. 803 (H.C.) at 803 per Hope J.); Baywood Paper Products Ltd. v. Paymaster Cheque-Writers (Canada) Ltd. (1986), 57 O.R. (2d) 229 (Dist. Ct.) at 233, 239 per Borins, D.J.C. (as he then was); Abulnar v. Varity Corp. (1989), 70 O.R. (2d) 168 (H.C.) at 170 per Henry J.
105 I note that Rule 34.02(2) of the Rules of Civil Procedure permits a person who objects to being examined at the place set out in the notice of examination to bring a motion to show that the place is unsuitable for the proper conduct of the examination.
106 The applicants are in effect submitting that cross-examination on their affidavits at an examiner’s office attended by investigating authorities is unacceptable. In other words, while recognizing that the Crown, as a party, has a prima facie right to be present at an examination (Management Science America (Canada) Ltd. v. McCormack & Dodge Canada Inc., [1987] O.J. No. 1116 (Div. Ct.) at 1 per Callaghan A.C.J.H.C.)), the applicants dispute and resist any extended audience to Crown agents and officials.
107 The Crown submits that “the fact that examinations might be conducted in the offices of … [an official] … examiner does not lend any conceptual distinction warranting departure from the general rule of openness”. While it is true that by virtue of s. 91 of the Courts of Justice Act, every official examiner is an officer of the court this does not inform the question of the application of the open court rule to cross-examination on affidavits in an examiner’s office.
1 The Crown submits that:
Examinations conducted out of court for purposes of expediency or administrative convenience obviously ought not to be cloaked in secrecy – if a member of the public wishes to attend any such examination, then the interests of justice require that that person be permitted to attend. In this manner, public confidence in the integrity of the court processes and understanding of the administration of justice will be fostered.
108 I disagree. As recognized by La Forest J. in C.B.C. v. Attorney General of New Brunswick et al., supra at 205, it may be that the open court philosophy protected under s. 2(b) of the Charter does not extend to every venue in which criminal law is administered — while it has long extended to courts themselves other considerations may apply to sites not historically considered to be public arenas. Imposing an open court imperative on the examiner’s environment, relating to cross-examination on affidavits filed in criminal proceedings, is unnecessary and unworkable. The record dealt with before the examiner, the affidavit and the cross-examination, are filed with the court and used in the pre-trial motion argued in open court.
CONCLUSION
109 It is perhaps necessary to draw back for a moment to summarize the sequence of events or circumstances forming the backdrop to the applicants’ submission;
(1) the government is alleged to have a non-existent or weak case as to voice identification respecting some of the applicants,
(2) disclosure difficulties respecting voice identification were encountered during the preliminary inquiry,
(3) admissions by the applicants at the preliminary inquiry were premised at least in part on the Crown producing its voice identification evidence in that hearing,
(4) the government preferred direct indictments before any voice identification was led at the preliminary inquiry,
(5) the government has allegedly infringed the applicants’ s. 11(b) Charter right to come to trial within a reasonable time,
(6) the applicants invoked the process of the court in an effort to prove a breach of their s. 11(b) Charter right and to obtain a remedy therefor,
(7) the government agrees that the delay to trial warrants judicial scrutiny,
(8) following the direction of the rules of court and the prevailing s. 11(b) Charter jurisprudence, the applicants filed their own affidavits to establish that actual prejudice was occasioned by the alleged intolerable delay,
(9) through notice to the applicants, the Crown triggered its right to cross-examine the applicants on their filed affidavits,
(10) during the cross-examinations, the Crown intends to establish or supplement its evidence of voice identification by acquiring the sound of the applicants’ voices, using that information for comparative analysis with the wiretap intercepts, to be followed by an attempt to introduce opinion voice identification evidence at trial.
110 A waiver of a constitutional right may not be unconditional. As observed by Sopinka J. in Evans and Evans v. The Queen, supra at 30, “… it becomes necessary to determine the terms of the waiver”. The applicants maintain their waiver of the right to silence and right against self-incrimination is qualified — it does not extend to the production of evidence against themselves respecting the charge(s). The Crown in turn submits that the availability of investigative information arising from government presence during the cross-examinations is effectively a non-conscriptive windfall subject to a s. 13 Charter ruling at trial.
111 Whether described as a principle of fundamental justice protected by s. 7 of the Charter, or as an integral feature of maintaining the integrity of the judicial system, an individual must have reasonable access to the court system. Access to justice is the touchstone of a free, democratic and civilized society.
112 While access to justice may not be absolute, the court must play its part in ensuring reasonable opportunity to every person to secure the protection of constitutional rights and to receive constitution-based remedies. In British Columbia Government Employees’ Union v. Attorney General of British Columbia (1988), 44 C.C.C. (3d) 289 (S.C.C.) at 299, 300, Dickson C.J.C. stated:
To paraphrase the European Court of Human Rights in Golder v. United Kingdom (1975), 1 E.H.R.R. 524 at 537, it would be inconceivable that Parliament and the provinces should describe in such detail the rights and freedoms guaranteed by the Charter and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court. As the Court of Human Rights truly stated: “The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings.” And so it is in the present case. Of what value are the rights and freedoms guaranteed by the Charter if a person is denied or delayed access to a court of competent jurisdiction in order to vindicate them? How can the courts independently maintain the rule of law and effectively discharge the duties imposed by the Charter if court access is hindered, impeded or denied? The Charter protections would become merely illusory, the entire Charter undermined.
. . .
I would adopt the following passage from the judgment of the British Columbia Court of Appeal (at p. 406):
We have no doubt that the right to access to the courts is under the rule of law one of the foundational pillars protecting the rights and freedoms of our citizens. It is the preservation of that right with which we are concerned in this case. Any action that interferes with such access by any person or groups of persons will rally the court’s powers to ensure the citizen of his or her day in court. Here, the action causing interference happens to be picketing. As we have already indicated, interference from whatever source falls into the same category.
McIntyre J. observed at pages 315, 316:
The Chief Justice has said, and with this I am in full agreement, that the rule of law is the very foundation of the Canadian Charter of Rights and Freedoms and that free access to the courts is essential to the maintenance of this rule of law. He has considered it inconceivable that [at p. 11, above]:
… Parliament and the provinces should describe in such detail the rights and freedoms guaranteed by the Charter and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to the court.
In my view, the right of such free access is Charter-protected …
. . .
In this, it is clear that it [the injunction] enjoined the Union and its members from engaging in conduct which was aimed at the infringement or limitation of the Charter-protected rights of others.
. . .
What is in issue here is the question of whether any person or group may have a Charter right to engage deliberately in conduct calculated to abridge the Charter rights of others.
113 While the court was concerned with physical denial of access to justice in the B.C.G.E.U. v. B.C.(A.-G.) case, the court was careful to define an affront to access to justice as a hindrance, interference, denial or delay “from whatever source”. The concept of access to justice is multi-faceted and not unlimited in scope. Access to justice may be impeded or denied physically or constructively by conduct tending to deter an individual from approaching the court system. As to any barrier occasioning delays in the administration of justice, at page 302 of the B.C.G.E.U. decision, the Chief Justice observed that “… justice delayed is justice denied”.
114 At common law, and certainly within the inherent jurisdiction of a superior court, is the judicial authority to control its own process. This point was aptly summarized by La Forest J. in C.B.C. v. New Brunswick (Attorney General), supra at 208:
The first such value is the power vested in courts of criminal jurisdiction to control their own process in furtherance of the rule of law. This was recognized in United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, 71 C.C.C. (3d) 225 (S.C.C.), where McLachlin J. noted that “[t]he rule of law is directly dependant on the ability of the courts to enforce their process and maintain their dignity and respect” (p. 931). Similarly, in B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, 44 C.C.C. (3d) 289 (S.C.C.), this Court referred to the English decision of Morris v. Crown Office, [1970] 1 All E.R. 1079 (C.A.), where, at p. 1081, it was said:
The course of justice must not be deflected or interfered with. Those who strike at it strike at the very foundations of our society. To maintain law and order, the judges have, and must have, power at once to deal with those who offend against it.
In B.C.G.E.U., supra, Dickson C.J. affirmed the power of courts to act in furtherance of the proper administration of justice. While said in the context of discussing contempt of court, the principle of permitting a court to control its own process may be said to extend to situations, such as the one at bar, where the court is granted a discretion to act in the interests of the proper administration of justice to exclude the public from criminal proceedings.
115 I am unable to accede to the Crown submission that, without implicating a s. 13 Charter breach, it can, at trial, adduce testimony as to voice identification derived in whole or in part, directly or indirectly, from comparative analysis of electronic intercepts with the sound of an applicant’s voice uttered during cross-examination upon his affidavit. There exists no sustainable argument that such an approach would not impermissibly infringe the applicants’ right against self-incrimination.
116 The Crown is correct in its submission that any information of voice identification secured during cross-examinations of the applicants could not be adduced at trial without the trial judge ruling on the s. 13 Charter issue. Because the right attaches at the time of attempted admission in the successive proceeding, there is not, at this time, a violation of s. 13 during the cross-examinations. The Crown says there is an apprehended breach only, but one which cannot in law transpire. Either the Crown is correct and the evidence is admissible at trial without a violation of s. 13 or, if the admission at trial of voice identification evidence derived from the applicants’ pre-trial motion testimony is protected by s. 13 the evidence will be excluded without any Charter breach.
117 The applicants, however, seek the security of a declaratory ruling in their favour, binding at trial, respecting the s. 13 Charter issue in order to characterize the present evidence-gathering exercise as an abuse — one deserving the court’s immediate attention.
118 While no evidence has been adduced by the applicants that they feel constrained to resist cross-examination on their affidavits as a result of what they see as involuntary participation in an investigative lineup, this fact is surely self-evident. The respondent did not seek to rely on the lack of direct evidence in this respect and did not suggest that the applicants’ failure to surrender to cross-examination was motivated by anything other than a desire not to produce voice identification evidence to the authorities.
119 The Crown is, in my view, seeking to use the open court principle as a sword divorced from the rationale and values informing the principle. Converting the courtroom into what is effectively a police lineup is bound to intimidate and to hinder and impede anyone from coming to court to complain of violation of a Charter right. Litigants are confronted with the uncertainty as to whether they are assisting in their own prosecution. In the circumstances, access to justice is denied. Fundamental fairness — fair treatment of the accused in the criminal process is compromised. The court’s process calls the applicants to the witness box for cross-examination. Respect for the court system would be diminished in the eyes of any reasonable observer seeing the court, while purporting to exercise an adjudicative function, apparently engaged in lending its authority to an investigative measure carried out without the consent of the litigant attempting to vindicate an important Charter right. The integrity of the court’s process requires judicial intervention to enjoin the authorities from having the voice monitors or any other potential witness as to voice identification in court during the cross-examinations.
120 Despite the impressive arsenal of remedial measures consistent with the court’s s. 24(1) Charter discretion, I do not agree with the applicants’ submission that I have the authority, as a motions court judge, to declare testimonial use immunity respecting the applicants’ cross-examination at any future trial which may be held. I am fortified in this belief given the clear linkage between the s. 13 Charter right against self-incrimination and the timing of the attempted admission of the impugned evidence at the subsequent proceeding.
121 The applicants are deserving of some relief from the prospect of the cross-examinations being conducted in the context of a voice identification lineup. I see any order of the court as largely a matter of the court’s inherent right to control its own process having regard especially to the following factors:
(1) While the prosecutorial approach does not offend s. 13 of the Charter now, any attempt to use the pre-trial motion testimony as an aspect of voice identification opinion evidence at trial would inevitably implicate s. 13 protection.
(2) Quite apart from the correctness of this court’s view on the s. 13 Charter issue, unlike the circumstances in the S.(R.J.) and the B.C. Securities v. Branch cases:
(a) the Crown here has an announced interest in using the pre-trial motion testimony to establish the guilt of the applicants in a criminal case,
(b) while acting under indirect compulsion or coercion to testify, the applicants are seeking access to the courts to vindicate a Charter right.
As discussed, these features of the present case raise serious access to justice and fundamental fairness concerns.
(3) From the experience of this court, and review of the relevant authorities, the Crown has, in the past, employed investigative measures in wiretap cases, other than that proposed here, to establish voice identification. There is no evidence of an at-large necessity to resort to this approach. Nor is there evidence as to why such an approach is reasonably necessary in this case.
122 One final point is deserving of mention. Mr. Rusonik, on behalf of the applicant Gordon, submitted that quite apart from the presence of government agents to audit the sound of the applicant’s voice during cross-examination upon his affidavit, in an effort to prop up existing voice identification evidence, the content of answers to questions may afford evidence of identity. It was suggested that prosecutorial questioning as to collateral details about the applicant’s circumstances or background could be connected to the contents of intercepted private communications to verify the identity of the applicant as the speaker. It is evident that, in certain circumstances, disclosure of factual information about an individual might “implicitly” reveal identity: Leipert v. The Queen (1997), 112 C.C.C. (3d) 385 (S.C.C.) at 393 per McLachlin J. However, quite apart from testimonial use immunity at trial, with disclosure of the wiretap intercepts to the defence, and mechanisms to control and limit cross-examination, I am unpersuaded that the production of cross-examination testimony at this time unreasonably endangers the applicant’s interest in not contributing to the Crown’s evidence of his identity as a speaker in the intercepts.
THE APPROPRIATE ORDER
123 Subject to limited exceptions, s. 136(1) of the Courts of Justice Act prohibits anyone, at a court hearing, from taking, or attempting to take, an audio recording or other record capable of producing aural representations by electronic means or otherwise. A lawyer, party acting in person or a journalist may unobtrusively make an audio recording in the manner that has been approved by the judge for the sole purpose of supplementing or replacing written notes (s. 136(2)(b)). Also excluded from the general prohibition is the creation of an audio record made with the authorization of the judge where required for the presentation of evidence or the making of a record or for any other purpose of the court hearing (s. 136(3)(a)).
124 Every court has supervisory and protecting power over its own records: Attorney General of Nova Scotia et al. v. MacIntyre et al., supra at 149. Tape recordings of testimony before the superior court of criminal jurisdiction, as a court of record, are under the control and authority of the court.
125 It is ordered that:
(1) The applicants, Alleyne and Dowdie, are to be cross-examined upon their affidavits in an examiner’s office and the transcripts of the examinations are to be filed with the court prior to October 19, 1998,
(2) The applicants, Gordon, Sinclair and Thomas, are to be cross-examined on their affidavits before the court on October 19, 1998,
(3) As to the in-court examinations of Gordon, Sinclair and Thomas:
(a) there will be no audio-recording in the courtroom except by the court reporter in furtherance of creation of the court record,
(b) the court audiotapes will remain in the custody of, and under the control of, the court, and may not be audited by anyone other than the court reporter, and may not be copied or seized, in the absence of an order of this court,
(c) excepting the applicants, any witness or potential witness respecting the trial of the applicants, is to be excluded from the courtroom,
(d) excepting the applicants, there will be no communication, direct or indirect, with any witness or potential witness respecting indictment No. 2057/98, regarding the contents of the testimony or describing any of the characteristics of the applicants’ voices including pace, quality and sound.
(4) Until the conclusion of trial, there will be no publication or broadcast of the matters described in paragraph 3(d).
126 Counsel for one or more of the applicants submitted exotic examples of the risks associated with cross-examinations conducted in circumstances other than with the protection of an in camera hearing or a use immunity ruling i.e. a trial subpoena issued to a journalist, lawyer or member of the public who had been present when the examinations were conducted to come to court to offer voice identification testimony. A witness exclusion order in the pre-trial application should alleviate any such danger. As a general rule, evidence will not be received from a witness improperly present in court during the currency of an exclusion order, especially in circumstances where the effect of the witness’ evidence would be to “fill in gaps in the Crown’s case or offend [the accused’s] right against self-incrimination”: Regina v. Linan, [1998] O.J. No. 1267 (C.A.) at para. 2-5 per curiam.
127 I recognize that the Crown may well apply to the trial judge for release of the court reporter’s tape(s) of the applicants’ cross-examinations in an effort to further its investigation. Pending this contingency, however, the voice information in the taped medium is protected by court order.
128 This order, in my view, best ensures a balance of societal concerns, fairness to the individual, and maintenance of the integrity of the judicial system. A more extreme position, one way or the other, propels the litigation toward a multitude of other subjects — appellate immunization of rulings by the court at this time, the rule against collateral attack of court rulings, the promulgation of Dagenais notices, and on and on. Without wishing to trivialize the importance of the submissions in this case, this is a preliminary motion to a pre-trial application. The criminal trial system is threatened by collapse under its own weight with a proliferation of procedural complexities. It is in the interests of the administration of justice to get on with the applications.
HILL J.