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Criminal law - Narcotics - Wiretap - Whether the trial judge erred in law by admitting the voice identification evidence obtained by Constable Manuel on February 11, 2003 - Whether the trial judge erred in law in concluding that the arrest of the Appellant was valid - Whether the trial judge erred in law in admitting the wiretap evidence obtained on February 10, 2003.

As a result of wiretaps, various members of the alleged drug conspiracy were identified. There was one person however called Keith Unknown, who had not been identified by the police. However, it was suspected that the Keith Unknown was, in fact, Keith Meyers. On February 3rd, 2003, Constable Manuel was advised that Keith Meyers was in custody at the holding cells, which were located in Atlantic Place in St. John’s. He was under arrest for a criminal charge that was not related to the present charges. Constable Manuel felt that it would be a good opportunity to talk to Meyers and to determine if his voice matched the voice of Keith Unknown on the intercepts. Constable Manuel spoke to Meyers about another individual and during the conversation Constable Manuel confirmed that Keith Meyers was, in fact, the Keith Unknown who was recorded on the intercepts. Meyers was granted bail on the charge against him.

One of the conditions of bail was that he sign the book at Police Headquarters. During the visit on February 11th, 2003, Meyers was arrested for the present charges. He was given a caution and his right to a lawyer. Now, later that day, Meyers was taken to the RCMP Headquarters to be fingerprinted and photographed. Constable Manuel testified that he did the processing because somebody had to do it and it also gave him another opportunity to talk to Meyers to confirm that he was the Keith Unknown on the intercepts. On both February 3rd and February 11th, 2003, Meyers knew that Constable Manuel was an RCMP officer.

The trial judge found that on February 3rd, 2003, the Appellant had not been given his s. 10(b) Charter rights and this breach meant the exclusion of his discussion with Constable Manuel under s. 24(2). This finding was not appealed by the Crown. Regarding the February 11th discussion, the trial judge found that there was no breach of the Appellant’s Charter rights. On appeal, the majority of the Court of Appeal dismissed the appeal. Mercer J.A. dissenting would have allowed the appeal and ordered a new trial. He concluded that the disputed evidence, which related to voice identification, should have been excluded pursuant to s. 24(2) of the Charter and as its admission adversely affected trial fairness s. 686(1)(b)(iii) could not be invoked. Although other voice identification is left, he found that it is reasonably possible that the jury verdict may have been different without the excluded evidence and therefore s. 686(1)(b)(iii) is inapplicable.