COURT OF APPEAL FOR ONTARIO
Watt, Brown and Roberts JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Nicola Nero and Martino Caputo
Appellants
Alan D. Gold and Melanie J. Webb, for the appellant Nicola Nero
Vincenzo Rondinelli, for the appellant Martino Caputo
Nick Devlin, Amber Pashuk and Jeremy Streeter, for the respondent
Heard: June 29, 2015
On appeal from the convictions entered on September 8, 2014 by Justice John B. McMahon of the Superior Court of Justice, sitting without a jury.
1Spring 2011 and Nicola Nero was on parole. Finishing up a penitentiary sentence of almost nine years in a halfway house down Niagara way. Allowed out on weekdays. Required to return on weeknights. Weekends, out and about.
2Parole includes restrictions. Where you can go. What you can do. Who you can talk to and hang around with. No association with others convicted of crime. And for Nicola Nero, no cellphones.
3But old habits are hard to break. Especially lucrative old habits. Like trafficking in cocaine. And keeping in touch with those like-minded. By cellphone and text message.
4Police suspected Nicola Nero had returned to the life. They began an investigation. In Niagara Region. But soon, elsewhere, including York Region.
5About a year later, the police investigation ended. Nero; his girlfriend or common-law spouse, Tawnya Fletcher; Martino Caputo; and some others were charged with several offences relating to unlawful traffic in cocaine.
6Investigators relied on several different kinds of court orders to advance their investigation and gather evidence. Production orders. General warrants. Number recorder warrants. Authorizations to intercept private communications. And search warrants. The orders and warrants yielded a bumper crop of evidence. If admissible, the case against Nero and Caputo was overwhelming.
7Nero and Caputo elected trial by judge and jury. Their counsel took aim at the orders, warrants and authorizations that enabled investigators to gather the evidence against them. But their attack failed. The judge rejected it, shortly after the argument had concluded.
8Shortly before the jury was to be selected for trial, Nero and Caputo filed another motion. They asked the judge who had heard their motions (the motion judge) to recuse himself. The judge’s conduct, they alleged, raised a reasonable apprehension of bias.
9Nero and Caputo did not pursue their recusal motion. Instead, they appeared on the same indictment in another jurisdiction before another judge. There, they re-elected trial by a judge of the Superior Court of Justice sitting without a jury. After pleading not guilty, they agreed to be found guilty and convicted on the basis of an Agreed Statement of Facts which established their guilt on each count of the indictment beyond a reasonable doubt.
10On appeal, Nero and Caputo repeat the arguments advanced unsuccessfully before the motion judge. They reinvigorate their claim of a reasonable apprehension of bias. The reasons that follow explain why I would reject their reupholstered claims of legal error and reasonable apprehension of bias and dismiss their appeals.
THE BACKGROUND FACTS
11The nature of the grounds of appeal advanced and the procedural course this prosecution followed in the court below render unnecessary any reference to the facts ultimately admitted when the convictions were recorded.
THE GROUNDS OF APPEAL
12Nero advances three principal grounds of appeal. Caputo adopted Nero’s submissions on these grounds. I would paraphrase their arguments this way:
i. the conduct of the motion judge during the course of the pre-trial applications for adjournments of the trial proceedings and exclusion of evidence gave rise to a reasonable apprehension of bias;
ii. the motion judge erred in law in failing to find that the production orders, warrants and authorizations in accordance with which evidence was gathered were issued without jurisdiction; and,
iii. the motion judge erred in concluding that Nero and Fletcher were not common-law spouses and so their intercepted private communications should have been inadmissible as evidence and could not have been relied upon as part of the ITO in connection with the search warrant
The second principal ground is further divided into the particular productions orders, warrants and authorizations in issue.
Ground #1: Reasonable Apprehension of Bias
13This ground of appeal relates to the conduct of the motion judge who heard the pre-trial applications to exclude evidence as well as motions to adjourn the trial in order to accommodate a change of counsel. This judge, the motion judge, was scheduled to preside at the jury trial which was to proceed shortly after completion of the pre-trial motions. Traversal of the proceedings to another jurisdiction resulted in their completion before a different judge.
The Background
14The appellants and other co-accused appeared before the motion judge for what was scheduled to be three weeks of pre-trial motions. The principal application was to exclude evidence obtained under various production orders, warrants and authorizations issued and granted as the investigation progressed. The evidence obtained was central to the case for the Crown at trial.
15The parties filed extensive written materials in support of their respective positions. Included among these materials were application records and written arguments. No witnesses testified.
16After two full days of oral argument on these applications to exclude evidence, counsel returned a week later to make submissions about spousal communication privilege. At the conclusion of submissions about spousal communication privilege, the motion judge retired. Shortly thereafter, court resumed. The motion judge gave oral reasons dismissing the applications to exclude evidence.
17The motion judge advised counsel that he would provide written reasons on the spousal communication privilege issue. An hour later, he sent those reasons electronically to counsel.
The Discharge of Counsel and Adjournment Requests
18About eight weeks after pre-trial motions had concluded and about three months prior to the scheduled trial date, the appellants sought an adjournment until a yet unscheduled murder case had been concluded. The motion judge dismissed the application.
19In a separate application, the co-accused, Tawnya Fletcher, sought an adjournment of the trial. Fletcher had discharged counsel who had represented her for two years, and retained another lawyer whose availability would have necessitated an eight to twelve-month adjournment. The motion judge dismissed the application for brief oral reasons which found the claim of reasonable apprehension of bias. The judge said:
Miss Fletcher asks for an adjournment of the trial from September 8 to the six weeks beginning December 1st, 2014. This would allow Miss Fletcher to be represented by Ms. Henein instead of Mr. Patterson. Miss Fletcher has given no reason for discharging Mr. Patterson. The adjournment would delay the trial substantially. Given my availability, the earliest I could see it going would be May of 2015, although September of 2015 is the estimate given by the Regional Senior Judge who knows about how my commitments fit in with the other judge’s commitments and availability of space.
In any event, that does not even take into account the effect on the Crown. Again, no reason is given for changing counsel. Miss Fletcher was given her choice of counsel and exercised it. The trial [date] was chosen to accommodate the counsel that she chose, Mr. Patterson. If she wants to change her lawyer, she will have to find one who is available September 8th.
Given the circumstances of the case, as I understand them from the pre-trial motions, I conclude that this application for adjournment and this change of lawyers is simply a sham designed as a backup in case Mr. Nero’s adjournment request is dismissed. I conclude that they are [in] cahoots and that he is calling the shots.
So, not only is her application not sufficient or justified, it is not brought in good faith. For oral reasons the application for adjournment is dismissed.
The Recusal Motion
20About two weeks before jury selection was scheduled to begin, several accused, including the appellants, brought an application asking the motion judge to recuse himself from presiding over the trial on the basis of a reasonable apprehension of bias. Written material was filed. But the application was not heard because the appellants, who were in custody, were not brought to the courthouse. The case was adjourned to the trial date.
The Resolution
21Counsel did not proceed with the recusal motion.
22On the scheduled trial date, the appellants appeared with counsel in another jurisdiction before another judge. There they resolved their alleged involvement and were sentenced to substantial terms of imprisonment in the penitentiary.
The Arguments on Appeal
23The appellants readily accept the onus to establish a reasonable apprehension of bias. They acknowledge that they must overcome the presumption of judicial impartiality by pointing to the persuasive force of the specific circumstances of this case. They say, however, that the remarks made by the motion judge in dismissing Fletcher’s adjournment request after having rejected their own satisfies this test.
24The appellants contend that the motion judge’s finding that Fletcher and the appellants, in particular, Nero, had colluded together was rank speculation unsupported by any evidence. Likewise, his conclusion that Nero was “calling the shots”. The appellants argue that these comments reflect an unjudicial state of mind and imbue the rulings on the pre-trial applications with an impermissible taint.
25The respondent resists any claim that the proceedings before the motion judge were infected by any reasonable apprehension of bias. No such apprehension could arise from the sequence of arguments and rulings on the pretrial applications. Further, the finding of collusion between Fletcher and Nero was available on the evidence before the motion judge.
26The respondent says that claims of judicial bias must be advanced as soon as reasonably possible after the events giving rise to the allegation occur. In this case, the recusal motion was scheduled two weeks before the trial was to begin, well after the dismissal of the adjournment requests which are said to give rise to it. What is more, the respondent continues, the application was never pursued, made but abandoned when the appellants decamped to resolve their case in another jurisdiction before another judge.
27At all events, the respondent submits, neither the timing nor the manner in which the trial judge ruled on the motions to exclude evidence, nor his summary dismissal of Fletcher’s request for an adjournment, singly or in combination, can satisfy the high standard required to establish a reasonable apprehension of bias. The parties filed extensive written materials in advance of the oral arguments on the pre-trial motions. The trial judge gave reasons orally when they returned to argue the spousal communication privilege issue on which written submissions had also been filed. Providing written reasons shortly after that argument affords no ground for a claim of reasonable apprehension of bias.
The Governing Principles
28Several basic principles inform the determination of this ground of appeal.
29First, the apprehension of bias must be reasonable, held by reasonable and right-minded persons applying themselves to the question and obtaining the required information about it. The test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude”: Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394; R. v. R.D.S., 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 111; Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 60.
30Second, the standard refers to an apprehension of bias that rests on serious grounds in light of the strong presumption of judicial impartiality: Committee for Justice and Liberty, at p. 395; Wewaykum, at para. 76. The grounds for the apprehension must be substantial: R.D.S., at para. 112.
31Third, as a necessary consequence of the presumption of judicial impartiality, the onus of demonstrating bias lies with the party who alleges its existence: R.D.S., at para. 114. That party must prove bias on a balance of probabilities: Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97 (C.A.), at para. 131
32Fourth, the inquiry into a reasonable apprehension of bias is fact-specific. Said in another way, whether a reasonable apprehension of bias arises, all the more so whether it has been established, depends entirely on the circumstances of the case under consideration: R.D.S., at para. 114.
33Finally, at least as a general rule, allegations of bias or a reasonable apprehension of bias should be advanced as soon as it is reasonably possible to do so: R. v. Curragh Inc., 1997 CanLII 381 (SCC), [1997] 1 S.C.R. 537, at para. 11.
The Principles Applied
34As I will explain, I would reject this ground of appeal for several reasons.
35First, the claim of reasonable apprehension of bias was initiated but never pursued. The motion judge was never confronted with the claim. He was not asked and did not rule upon it. The lis vanished, along with the appellants, when the allegations contained in the indictment were resolved before another judge in another jurisdiction.
36Second, the claim was not brought as soon as reasonably possible after the circumstances said to give rise to it arose. The principal incident that underpins the claim is the trial judge’s statements rejecting Fletcher’s request for an adjournment. The recusal motion was brought three months later, on the eve of trial. To the extent that the appellants invoked the circumstances in which the trial judge ruled on the pre-trial motions to exclude evidence, the recusal motion was returnable five months later.
37Third, the evidence relied upon in support of the claim falls well short of establishing the substantial grounds required to rebut the presumption of judicial impartiality on a balance of probabilities.
38Without more, the submission that the manner in which the motion judge delivered his rulings on the applications to exclude evidence for constitutional infringement and to give effect to the claim of spousal communication privilege fails. Consider the context. An extensive application record. Lengthy written submissions. Two days of oral argument. An adjournment for a week. A further argument about spousal communication privilege. Then a ruling on the earlier motions. A decision not to call on the Crown for submissions on the spousal communication privilege issue followed shortly by brief written reasons. Scarcely the stuff of the substantial grounds required to rebut a strong presumption of judicial impartiality.
39Nor do the comments of the motion judge in determining Fletcher’s adjournment application establish a basis to ground the claim. The trial date had been fixed, in part at least, to accommodate the schedule of counsel whom Fletcher purported to discharge after he had represented her for two years. Fletcher advanced no reasons for the discharge. As to Nero’s aptitude and practice of directing others, the record on the pre-trial applications provided ample support for such a conclusion.
Ground #2: The Production Orders
40The appellants attack production orders granted on April 29 and August 29, 2011 by justices of the peace under s. 487.012 of the Criminal Code of Canada, R.S.C., 1985, c. C-46, as it read at the time. To better understand the basis of this claim of error, it is necessary to sketch in some background about the circumstances in which the orders were granted.
The Background
41In the spring of 2011, Niagara Regional Police Service (“NRPS”) began an investigation into Nero’s suspected involvement in large scale cocaine trafficking in Niagara Region. Over the ensuing months the investigation expanded. Other police forces became involved.
The Production Order of April 29, 2011
42On April 29, 2011 a justice of the peace granted a production order requiring two service providers to furnish records for four cellphones allegedly used by Nero but registered to other subscribers. The offence in respect of which the order was sought and granted was trafficking in cocaine in Niagara Region.
43The information to obtain (the “ITO”), which provided the evidentiary foundation for the production order, was submitted by Det. Cst. Jay Howe of NRPS. The ITO listed the dramatis personae of the distribution scheme, including Nero and several others said to be associated with him and with whom he was alleged to be in contact.
44In the ITO, Det. Cst. Howe identified several sources of information upon which he relied in seeking the production order. Among the sources were confidential informers (“CIs”), surveillance reports, intercepted private communications, subscriber checks in connection with certain telephones, and information obtained under previous production orders showing substantial traffic on phones registered to Nero’s mother, and his girlfriend.
45Det. Cst. Howe had direct contact with only one of five CIs to whom he made reference in the ITO. Consistent with his obligation not to disclose an informer’s identity, or any information that could reveal his or her identity, Det. Cst. Howe described for each CI whether she or he had a criminal record, including offences of dishonesty, or was facing outstanding charges; any indicia of reliability; and the nature of the contact between the informer and his or her handler. The ITO developed in chronological order contact between various individuals including through use of the cellphones whose records were sought under the order.
46Det. Cst. Howe was not cross-examined on the pre-trial motion.
The Production Order of August 29, 2011
47The second production order, granted on August 29, 2011, included a number recorder warrant under what was then s. 492.2(1) of the Criminal Code. By this time, the investigation had expanded beyond the borders of Niagara Region to other parts of the province, including York Region. The ITO was completed by Det. Cst. Les Titleman of York Regional Police Service (“YRPS”). The ITO for the order of April 29, 2011 was attached to Det. Cst. Titleman’s ITO.
48In his ITO, Det. Cst. Titleman included reference to several aspects of the investigation including the results of surveillance and information obtained under the prior production order and other judicially authorized investigative methods. The officer recorded his understanding of the ex parte nature of the application and of his obligation to provide full, fair and frank disclosure of relevant available information, but not to describe every step along the way. He was careful to distinguish between his beliefs and the actual language used by various individuals.
49Det. Cst. Titleman identified the targets of his investigation. He included photographs, biographical details, places of residence, associations, involvement in drug trafficking, cellphone usage and the nature and extent of their involvement with Nero. He described the grounds for his belief that the records sought would afford evidence of the cocaine trafficking offence under investigation:
- prior and existing association
- prior and existing involvement in drug trafficking
- counter-surveillance measures
- the analysis of phone records
- results of earlier investigations
50In his ITO, Det. Cst. Titleman included information provided by a single informant. In a separate and undisclosed Appendix, the officer provided greater detail about the information provided and how and the extent to which it had been confirmed by other means. He concluded by explaining why he believed the documents or data he sought would afford evidence of cocaine trafficking by those alleged to be involved.
51Det. Cst. Titleman was not cross-examined on the pre-trial motions.
The Ruling of the Motion Judge
52The motion judge declined to find the production orders had been improvidently granted. He rejected the argument that evidence gathered under their auspices should be excluded for constitutional infringement.
53The motion judge described the conditions precedent to the issuance of a production order under the former s. 487.012. He explained the standard of review he would apply. In connection with the order of April 29, 2011, the motion judge acknowledged that the ITO contained individual items of little evidentiary value. He recognized the prospect that the three CIs reporting second-hand information reduced to two the confidential sources of reliable first-hand information. He pointed out that the inclusion of investigative theory in the ITO was readily identifiable. Despite these deficiencies, the motion judge held that the ITO as a whole could satisfy the conditions precedent under the former enabling provision and thus evidence obtained under it was not excluded by constitutional infringement.
54In connection with the production (and related number recorder) order of August 29, 2011 the motion judge was satisfied that, read as a whole, the ITO provided ample evidence that Nero was involved in drug trafficking and that the records sought would provide evidence of his involvement.
The Arguments on Appeal
55Nero acknowledges that he was both in continuous possession or control and the primary user of the cellphones in respect of which the production orders were sought. Nero further concedes that the motion judge recognized that some of the information provided by the CIs was second-hand. But what the motion judge failed to take into account, according to Nero, was that the failure of the informant to disclose the second-hand nature of this information amounted to a failure to make full, fair and frank disclosure of all material facts. This vitiated the order because it deprived the justice of information that was vital to a proper assessment of the reliability of the information provided by the CI.
56Nero contends that the production orders preceding the order of April 29, 2011 yielded information about essentially innocuous activities and contacts that in no way confirmed any material aspect or core allegation made by any CI providing first-hand information. The bald assertions and conclusory statements were largely police theory and failed to satisfy the statutory conditions precedent for the order.
57Nero says that the production order of August 29, 2011 also cannot stand. It relied on information obtained under the first order which ought not to have been granted. And the second ITO failed to establish a reasonably grounded belief that the records sought would afford evidence of cocaine trafficking. It too failed to point out the second-hand nature of the information supplied by the CIs. It was permeated with bald allegations and police theory, not facts that could support the findings necessary for a production order. In the absence of any evidence about the content of the relevant calls, there could be no finding that they would afford evidence of a crime.
58The respondent sees it differently. The ITOs established a sound and ample evidentiary predicate to nourish the findings necessary to grant the orders. The core information came from three CIs of proven reliability, and a concerned member of the public without criminal antecedents or any personal benefits in play. Another CI was an admitted participant in the drug culture of Niagara Region and provided first-hand information about those involved in it. No information provided by any informant was proven incorrect. The interpersonal connections of which they spoke were confirmed by physical surveillance.
59The respondent also points out that the appellants’ approach, a microscopic analysis of each morsel of information provided and its parsing in search of otherwise innocent explanations, is incompatible with the authorities and at odds with the standard of review mandated by R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, and its offspring. In the end, the respondent says, there was sufficient reliable evidence that might reasonably be believed on the basis of which the issuing justice could have concluded that the conditions precedent had been established. And that is all that matters.
The Governing Principles
60Several principles inform a decision on this ground of appeal. Some are statutory provisions, no longer in force, that define what must be established before a production order may be issued or a number recorder warrant granted. Others have to do with the standard and scope of review applicable when, as here, the orders are alleged to have been improvidently given.
Production Orders
61Under former ss. 487.012(1) and (3) a justice or judge was authorized to make a production order if satisfied, on the basis of an ex parte application containing an information on oath in writing, that there were reasonable grounds to believe:
i. that an offence against the Criminal Code or other federal statute had been or was suspected to have been committed;
ii. the documents or data sought would afford evidence respecting the commission of the offence; and
iii. the person who was subject to the order had possession or control of the documents or data.
62The reasonably grounded belief in the commission of the offence to which requirement i. refers needed not be in respect of an offence known to have been committed. A reasonably grounded belief in a suspected offence was sufficient to satisfy this requirement.
Number Recorder Warrants
63Former s. 492.2 authorized a justice to issue a number recorder warrant provided an information on oath in writing established the conditions precedent required by s. 492.2(1). The justice must have been satisfied that there were reasonable grounds to suspect that an offence under the Criminal Code or other federal statute had been or would be committed and that information that would assist in the investigation of the offence could be obtained through the use of a number recorder. The warrant could be valid for a period of not more than 60 days.
64Unlike s. 487.012 relating to production orders, s. 492.2 required that the information support a reasonably grounded suspicion (as opposed to belief) of a prior or future offence.
The Standard and Scope of Review
65A production order under former s. 487.012 and a number recorder warrant under former s. 492.2 authorize conduct by state authorities that amounts to a search or seizure and is thus subject to the reasonableness requirement imposed by s. 8 of the Canadian Charter of Rights and Freedoms.
66When evidence gathered under the aegis of these orders and warrants is tendered at trial, and objection is taken to its admission, the trial judge is required to decide whether the statutory preconditions to each enabling authority have been met: R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 8; R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, at para. 84.
67The evidentiary record for the reviewing judge to consider consists of the documents relating to the order or warrant, any additional evidence adduced at the hearing and the submissions of counsel: Pires; Lising, at para. 8; Beauchamp, at para. 85.
68The review proceeds from a presumption of validity of the enabling warrant or order. The presumption is rebuttable: Pires; Lising, at para. 30; Beauchamp, at para. 85; R. v. Ebanks, 2009 ONCA 851, 249 C.C.C. (3d) 29, at para. 21. The review requires a contextual analysis of the record, not a piecemeal dissection of individual items of evidence shorn of their context in a vain search for alternative exculpatory inferences: Beauchamp, at para. 85; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 87.
69The principles governing review of production orders are those first articulated by Sopinka J. in Garofoli: Canadian Broadcasting Corp. v. Manitoba (Attorney General), 2009 MBCA 122, 250 C.C.C. (3d) 61, at para. 31. There is no reason to apply a different standard to the review of number production warrants. The review is not a rehearing or a de novo hearing of the original application. Nor does it involve the reviewing judge substituting his or her views, or discretion, for those of the issuing justice.
70The test or standard a reviewing judge is to apply is whether the ITOs contained sufficient reliable evidence that might reasonably be believed on the basis of which the authorizing justice could have concluded that the conditions precedent required to be established had been met: Garofoli, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 51, 54; Sadikov, at para. 84; Beauchamp, at para. 87; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40.
71Like the authorizing justice, the reviewing judge is entitled to draw reasonable inferences from the contents of the ITO. That an item of evidence in the ITO may support more than one inference, or even a contrary inference to one supportive of a condition precedent, is of no moment. The inquiry begins and ends with an assessment of whether the ITO contains reliable evidence that might reasonably be believed on the basis of which the warrant or order could have issued: Morelli, at para. 40; Sadikov, at para. 88.
72Inaccuracies and omissions in the ITO are not, without more, fatal to the adequacy of the material to establish the necessary conditions precedent: Garofoli, at p. 1452; Araujo, at para. 54; Pires; Lising, at para. 30.
73The standards required for production orders differed from those for number recorder warrants under the then applicable statutory provisions. The former required a reasonable belief, the latter only a reasonable suspicion about the commission of an offence. A standard of reasonable suspicion addresses the possibility of uncovering criminality, not a probability of doing so as is the case for a reasonable belief: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 32.
74On appeal, we owe deference to the findings of fact made by the reviewing judge in his assessment of the record, as well as to his disposition of the s. 8 Charter challenge. In the absence of an error of law, a misapprehension of material evidence or a failure to consider relevant evidence, we should not interfere: Beauchamp, at para. 89; Ebanks, at para. 22; R. v. Grant (1999), 1999 CanLII 3694 (ON CA), 132 C.C.C. (3d) 531 (Ont. C.A.), at para. 18.
75The fact that information in the ITO came from informants affords no basis upon which to set aside the production orders or number recorder warrant any more than if the enabling authority were a search warrant, general warrant or authorization to intercept private communications. It is well settled that hearsay statements of a CI can provide reasonable and probable grounds to justify a search: Garofoli, at pp. 1456-57.
76A final point about information provided by CIs. As established in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at paras. 53, 63, it is not necessary for investigators to corroborate each exquisite detail of the information provided. The ITO, however, should describe what has been done to confirm the credibility of the source and the reliability of his or her information so that the issuing and reviewing justice can properly assess it.
The Principles Applied
77As I will explain, I would not give effect to this ground of appeal in connection with either production order or the number recorder warrant.
The First Production Order
78First, in sustaining the first production order, the motion judge acknowledged that the information three CIs had provided was second-hand, a circumstance that could not exclude the possibility of a single common source. The motion judge took this factor into account in his decision to uphold the production order.
79Second, the non-disclosure in the ITO is not, without more, fatal to the validity of the order. As is explained below, viewed as a whole, the ITO contained sufficient reliable evidence that might reasonably be believed on the basis of which the order could have issued.
80Third, the ITO contained information about Nero’s conduct and his involvement in the unlawful distribution of controlled substances in Niagara Region. The information was detailed and came from sources of established reliability intimately familiar with Nero’s activities, associations and habits.
81Fourth, it is critical to bear in mind what must be established to obtain a production order and the nature of its subject-matter.
82The ITO need not prove that a named individual has committed a specified offence. What is required is that the ITO establish a reasonably grounded belief either that an offence has been committed or that an offence is suspected to have been committed. Proof of the offence occurs at trial.
83In a similar way, the ITO must afford a basis for a reasonably grounded belief that the documents sought – cellphone records of phones admittedly used by and under the control of Nero – will afford evidence respecting the commission of the offence. The records need not be conclusive proof of guilt. Self-evidently, cellphone records reveal contact with others, the frequency of that contact and, if they include tower information, where the contact occurred. This information is of evidentiary value in proof of preliminary as well as substantive crime, and thus will afford evidence respecting the commission of an offence.
84Finally, the standard of review applied on appeal from findings made on a Garofoli application does not permit a microscopic re-examination of individual components of the ITO as the appellant urges. The motion judge was required to consider the ITO as a whole and to determine whether the ITO contained sufficient reliable evidence that might reasonably be believed on the basis of which the production order could have issued. An appeal from that finding is not Garofoli nouveau or Garofoli redux. Absent an error in the statement of the test, a misapprehension of relevant evidence or a misapplication of principle, an appellate court is disentitled to intervene. That is this case.
The Second Production Order
85The ITO submitted to obtain the production order of August 29, 2011 included as an appendix the ITO on which the previous production order was based, as well as further surveillance of Nero’s activities. The telephone traffic linked Nero to other convicted traffickers and two members of the Hell’s Angels alleged to be involved in similar activity beyond Niagara Region.
86For reasons similar to those rejecting the challenge to the production order of April 29, 2011, I would not give effect to the challenge to the later order.
87First, the attack on the ITO filed in support of the second production order, like that advanced in connection with the first, urges the availability of competing exculpatory inferences from individual bits of information included in the ITO. But, as we saw earlier, this is not the proper approach. It is reminiscent of an approach that would subject individual items of circumstantial evidence to a standard of persuasion applicable only to the evidence as a whole. Such an approach is inimical to the true standard which asks whether the ITO contains sufficient reliable information, that might reasonably be believed on the basis of which the order could have been issued.
88Second, the argument advanced here is essentially a do-over of the submissions made to and rejected by the motion judge. That decision, in the absence of the application of an improper standard, an error in principle or a misapprehension of relevant evidence, is to be accorded substantial deference on appellate review. This is not, as I have said, Garofoli nouveau or Garofoli redux. A review of the ITO supports the conclusion that it contained information on the basis of which the motion judge, applying Garofoli, could have concluded that there was sufficient reliable information, that could have reasonably been believed, on the basis of which the order could have issued.
89Third, the adequacy of the evidentiary foundation cannot be separated from the nature of the subject-matter sought under the production order. What is being sought are historical records that disclose the fact, not the substance of previous communications. Who talked to whom. Who texted whom. During the period of the order. It is in this sense that the documents sought will afford evidence.
90Given these findings, there is also no reason to disturb the motion judge’s finding that the information provided in support of the number recorder warrant met the requirement of reasonable suspicion about the commission of an offence.
Ground #3: The Validity of the Authorizations
91The appellants repeat their challenge, first advanced before the motion judge, to two authorizations to intercept private communications. The authorizations were granted about a month apart under s. 186(1) of the Criminal Code. The second authorization was an expansion of the first.
92To better understand the complaints advanced by the appellants, it is helpful to recall briefly the state of the investigation when the authorizations were sought and the information contained in the affidavits filed in support of the applications.
The Background
93The original investigation had begun about a year earlier. Its focus was on cocaine trafficking in Niagara Region. Over time, other police forces became involved. The scope of the investigation expanded into York Region and elsewhere in and around the surrounding area.
94Police had utilized several different investigative techniques and procedures as their investigation progressed. Some required judicial approval in advance, others not. Officers conducted physical surveillance, solicited or were provided with information from confidential human sources and pursued undercover investigations. They obtained and executed production orders, number recorder warrants and general warrants.
95Much of the information gathered by investigators identified or confirmed contact between or among various targets of the investigation. Historical and current telephone records established traffic among the principals and its frequency, but yielded nothing of substance about their discussions, activities, plans or roles. Number recorder warrants yielded more current information about telecommunications traffic, but disclosed nothing of its content and were incapable of recording certain types of messaging apparently used by the targets.
96About two weeks before the first authorization was granted, police executed a general warrant at a storage facility or warehouse frequented by and leased to some of the targets. There, police seized 110 kg of cocaine. The premises were owned by the family of Tawnya Fletcher, the common-law spouse or girlfriend of Nero. The persons arrested were in frequent contact with Nero and linked by information from CIs to his drug distribution network.
97The authorizations the appellants challenge were but part of an omnibus order that also included consent authorizations, a number recorder warrant, a production order, two general warrants, a tracking warrant and an assistance order.
The Supportive Affidavit
98The supportive affidavit of Det. Cst. Les Titleman, who also swore the ITO for the second production order and the number recorder warrant, contained nearly 600 paragraphs and extended to about 150 pages. The affidavit included several appendices, among them, a document that furnished information, not disclosed to the appellants or their counsel, about the CIs who had provided information to investigators.
99The affidavit identified the goals of the investigation including the gathering of clear and compelling evidence relating to domestic trafficking of cocaine and the laundering of proceeds of crime. Through interception of private communications, investigators sought to identify the participants and ascertain their roles in the unlawful agreement to traffic and the trafficking itself.
100The affidavit divided the known targets of interception into two categories: “principal known persons” and “other known persons”. In respect of each, the affiant included a photograph and descriptions of the person’s association with others in the same or different category, his or her prior convictions and any outstanding charges, and information learned in prior and related investigations of each.
101The affidavit set out at length the basis upon which the affiant asserted the requirements of probable cause and investigative necessity were established. The affiant deposed that the requirement of investigative necessity had been satisfied on the basis that other investigative procedures had been tried and had failed or were unlikely to succeed in achieving their investigative objective. Among the specific methods described were: physical surveillance; confidential human sources; agents; tipsters; phone data; witnesses; forensic investigation; and undercover operations.
The Ruling of the Motion Judge
102The motion judge upheld the omnibus orders of February 24 and March 26, 2012, which included the two authorizations to intercept private communications challenged here. He was of the view that the affidavits contained sufficient reliable evidence that might reasonably be believed on the basis of which the authorization judge could have concluded that the requirements of probable cause and investigative necessity had been met and thus granted the authorizations.
103In respect of probable cause, the motion judge attached particular significance to the seizure of 110 kg of cocaine in a storage or warehouse facility owned by Fletcher’s family and leased in turn to the Alessio brothers and Nero. The connection described by the informants was confirmed by physical surveillance and, to some extent at least, by telecommunications traffic revealed in cellphone records.
104On the requirement of investigative necessity, the motion judge pointed out that although less intrusive investigative techniques such as production orders, physical surveillance and informants established or confirmed links between or among the principals, these methods yielded no evidence of the substance of any discussions among them.
105The motion judge considered the second authorization an expansion of the first, fully supported by the original affidavit material supplemented by what had been obtained by execution of the first authorization and through other investigative steps undertaken during its currency.
The Arguments on Appeal
106The appellants recycle here the submissions made to but rejected by the motion judge. They submit that the affidavit material failed to provide sufficient reliable evidence that might reasonably be believed on the basis of which the authorizing judge could have concluded that either the probable cause or investigative necessity conditions precedent had been satisfied.
107The appellants say that the finding of probable cause rested on conclusory information provided by CIs whose reliability was untestable and speculation from brief meetings or conversations among various targets, at least some of whom were related to one another. In combination, conclusory statements from unverifiable suspect sources and speculation from innocuous social intercourse among friends and relatives does not meet the Garofoli/Araujo standard.
108According to the appellants, the case for investigative necessity as advanced in the affidavits fell far short of what is required. Investigators did not exhaust other avenues of investigation. They failed to execute a general warrant and a search warrant issued for Nero’s home before they sought and obtained the first authorization. They made limited use of undercover officers and confidential informants. The cellphone records on which they relied were largely historical. The affidavit offered no adequate explanation as to why traditional methods of investigation would not succeed in meeting their investigative objective or, for that matter, why those methods were not used.
109The respondent characterizes the evidentiary foundation for the authorizations as “overwhelming”, especially after the seizure of 110 kg of cocaine in a storage facility controlled by those identified by CIs as Nero’s associates and owned by the family of Nero’s common-law wife or girlfriend. The credibility of the CIs and the reliability of the information they provided was confirmed, at least in a general way, by independent evidence.
110The respondent begins with a reminder about the manner in which courts are to apply the standard of review described in Garofoli and confirmed in Araujo. Both the probable cause and investigative necessity requirements apply to the investigation as a whole, not to individual persons named as targets. We must interpret each requirement in a practical, commonsense way bearing in mind the nature of the investigation and the objectives of the investigators. We must also keep in mind that interception of private communications is not an investigative technique of last resort, but rather is established on evidence that reveals, practically speaking, no other reasonable alternative in the circumstances of the particular criminal inquiry. This is of particular significance when investigators seek to move up the hierarchy of a distribution network to gather evidence about the principals.
111The respondent says that with the seizure of the 110 kg of cocaine from the storage facility or warehouse, there could not be any real issue concerning reasonable grounds to believe a listed preliminary or substantive crime involving importing, possession and trafficking cocaine was being committed. Nor could there be any contest that the interception of the appellants’ private communications would assist the investigation of those offences. The affidavit disclosed that Nero was a high-level cocaine trafficker who several informants reported was moving huge quantities of cocaine. On parole, he met and called other known drug dealers. He was clearly connected to those seen in the storage facility where the cocaine was located and with the family that owned the warehouse. He was one of the first persons to whom those who rented the storage facility went after the cocaine had been seized.
112Further, the respondent contends, the affidavit established the investigative necessity requirement in s. 186(1) of the Criminal Code. The affidavit included nearly three dozen paragraphs to explain the other investigative procedures that had been undertaken and to describe how each and all had failed to achieve the investigative objective of the project. Investigative necessity applies to the investigation as a whole, not to individual targets. It is not a procedure of last resort. Interceptions were necessary to gather evidence of the content of communications passing between surveillance-conscious, experienced and sophisticated criminals.
The Governing Principles
113In earlier paragraphs of these reasons, more specifically in paragraphs 68-72 and 74-76, I have canvassed the general principles that govern the standard of review applicable under Garofoli and Araujo, as well as reviews of those decisions in appellate courts. It is unnecessary to retill that soil here. What is necessary, however, is an examination of the conditions precedent enacted by s. 186(1) and how the review mandated by Garofoli and Araujo applies to them.
114Section 186(1) requires that two conditions precedent be met before the discretion to grant an authorization to intercept private communications may be granted by a judge of the superior court of criminal jurisdiction:
(a) that it would be in the best interests of the administration of justice to do so; and
(b) 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.
For discussion purposes, the condition described in s. 186(1)(a) can be described as “probable cause” and that in s. 186(1)(b) as “investigative necessity”.
115The probable cause requirement demands that the authorizing judge be satisfied by the supportive affidavit that there are reasonable and probable grounds to believe that:
i. a specified crime, and “offence” as defined in s. 183(1) of the Criminal Code, has been or is being committed; and
ii. the interception of the private communication sought will afford evidence of the, or an, offence for which authorization is sought: Garofoli, at p. 1451; R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, at p. 45; R. v. Mahal, 2012 ONCA 673, 292 C.C.C. (3d) 252, at paras. 68, 75; Beauchamp, at para. 91.
116The probable cause requirement and the capacity of the contents of the supportive affidavit to satisfy it involve a commonsense approach that takes into account the nature of the subject-matter investigators seek to acquire: future communications, not yet in existence, perhaps not even in contemplation at the time the authorization is sought or granted. These communications may never take place. But if they do, the likelihood of anything said affording evidence of a listed offence is enhanced by their probable participation in that offence. It is in that sense that interception of what they say will afford evidence of the offences.
117It is also important to keep in mind that the affidavit is required to establish a reasonably grounded belief in the commission of the offence and the collection of evidence about it, not proof beyond a reasonable doubt or a prima facie case of either.
118Under s. 186(1)(b), investigative necessity may be established where the affidavit demonstrates that other investigative procedures are unlikely to succeed. Interception of private communications is not an investigative tool of last resort. The second branch of investigative necessity is met where, practically speaking, there is no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry: Araujo, at para. 29; Mahal, at para. 41; Beauchamp, at para. 95.
119Whether investigative necessity is established is informed by the investigative objectives pursued by the police: Araujo, at para. 43; Beauchamp, at para. 99.
120The investigative necessity requirement of s. 186(1)(b) applies to the investigation as a whole, not to each individual target. The supportive affidavit need not demonstrate investigative necessity on an individual target basis: Mahal, at para. 42; Beauchamp, at paras. 100, 119.
121Investigative necessity may also be established where the objective of investigators is to bring to ground the upper echelon of a drug distribution network far removed from the grunt work performed by the street trafficker: Araujo, at para. 43.
122The requirement of investigative necessity may be met where it anticipates the vicissitudes of proof in a criminal trial. An investigative purpose or objective may then be to obtain evidence confirmatory of information provided by a source whose testimony is not available through no fault of or connivance by the authorities, or is subject to special scrutiny: Beauchamp, at para. 102.
The Principles Applied
123As I will explain, I would reject this ground of appeal.
124First, as stated previously, on review of decisions made on Garofoli applications, we begin from a standard of deference to findings of fact made by the Garofoli hearing judge. Absent a demonstrated misapprehension of the evidence, a failure to consider relevant evidence, a consideration of irrelevant evidence, an unreasonable finding or an error of law in the application of the governing principles, we are disentitled to interfere with the decision of the Garofoli hearing judge.
125Second, the attack advanced here on the motion judge’s decision is nothing more, and certainly nothing less, than a thinly-veneered reprise of the arguments advanced and rejected on the Garofoli hearing. This represents an approach with some rough equivalence to that advanced in cases in which proof of guilt depends on circumstantial evidence. There, as here, each item of evidence is analyzed every which way to tease out neutral or benign inferences and rejected on account of their availability. But that is not the standard of measure we apply. It is the effect of the evidence taken as a whole that is to be subjected to the standard required, not each individual item. The whole is often greater than the sum of its individual parts.
126Third, implicit in the argument the appellants advance is an assumption at odds with the standard set by Garofoli. On a Garofoli review, the standard is whether the information in the affidavit or ITO, considered as a whole, constitutes sufficient reliable evidence that might reasonably be believed on the basis of which the relevant search authority could have issued. The approach advanced here seems more directed to demonstrating that the search authority should not have been granted. But, as we have seen, that is not the test.
127Fourth, the supportive affidavit provided an adequate evidentiary predicate to satisfy the Garofoli standard.
128In terms of the probable cause requirement, the affidavit contained overwhelming evidence that a listed offence had been committed and was continuing. Police found 110 kg of cocaine in a storage facility controlled by persons with whom CIs linked Nero in cocaine trafficking. Physical surveillance confirmed their association immediately after discovery of the drugs. The warehouse was owned by the family of Nero’s common-law spouse or girlfriend.
129The affidavit material disclosed cocaine trafficking on a large scale by a network of individuals who occupied different roles and performed different functions in the distribution scheme. As jurors are routinely instructed, participation in an offence may be established by direct or circumstantial evidence, including what suspected individuals do and what they say. It is a reasonable inference that interception of the private communications of the alleged participants in the trafficking operation would afford evidence of the nature and extent of their participation. The fact of communication was established by the cellphone records obtained under the production orders and the information yielded by execution of the digital number recorder warrant.
130The same may be said of the capacity of the affidavit to satisfy the investigative necessity requirement of s. 186(1)(b).
131The affidavit included a catalogue of other investigative techniques and procedures and explained their limitations in acquiring evidence to prove the essential elements of the offences listed in the authorizations. These methods could demonstrate contact among the targets, but shed little, if any, light on the nature of that contact. Acquisition of the content of discussions or communications was essential, but not forthcoming from other investigative procedures.
Ground #4: Unreasonable Execution of the General Warrant
132This ground of appeal challenges the manner in which a general warrant was executed at the residence of Nero and Fletcher on March 30, 2012. The appellants do not challenge the issuance of the warrant or the terms contained in it. The supportive affidavit/ITO that supplied the evidentiary basis for issuance of the warrant is the same document on which the authorization of March 26, 2012 was based.
The Background
The General Warrant
133The general warrant for Covert Entry included in the Authorization to Intercept and Related Orders and Warrants contains the following terms:
- IT IS ORDERED THAT, upon being satisfied that the requirements of s. 487.01 of the Criminal Code have been met, peace officers of the York Regional Police and or Niagara Regional Police Service, and any other peace officers acting under their authority or acting in good faith in aid thereof, are permitted, at any time day or night, subject to the terms and conditions outlined in paragraph 12 of this Authorization, to repeatedly and surreptitiously enter into any place utilized by or resorted to, by a person listed in paragraph 3, or by any person, believed on reasonable grounds, to be involved with a person listed in paragraph 3, in the transfer of an item relevant to one of the offences listed in paragraph 1 of this Authorization, to do the following:
a. To search for items related to the investigation of the offences in paragraph 1. If an item related to the investigation of the offences in paragraph 1 is located within any place, investigators may examine the item, photograph or videotape the item, place an identifying mark on the item for future positive identification by investigators. In addition, investigators may seize some or all of the items.
b. To gain access to any computer(s), data storage media, telecommunication devices, Personal Digital Assistance (PDA’s), Blackberry’s, and/or mobile telephones located within the places that may be used to store information and search or seize any of these items for any stored information in relation to the offences listed in paragraph 1.
Execution of the General Warrant
134On March 30, 2012 police covertly entered the residence shared by Nero and Fletcher. They looked around the premises. They saw stacks of Canadian currency, a box for a Blackberry PGP device and two sticky notes. On the sticky notes were two email addresses and passwords. The officers photographed the notes. One email address included the word “encryptoid”, prompting one of the officers to think of “encryption” and make a note of his observation. The email address that included “encryptoid” meant nothing to the officer at the time he saw the note.
135When officers executed a search warrant on the same premises on May 23, 2012, they seized the items they had seen two months earlier when they had entered the premises covertly under the general warrant.
The Arguments on Appeal
136The appellants point out that the operative clause of the general warrant permitted police to search for various items “related to the investigation” of the offences listed in the order. But the evidence given by the police executing the warrant was that the sticky note and writing (“maybe it means something, maybe it doesn’t”) belies any connection to the investigation. It follows, the appellants say, that the officers exceeded the mandate afforded by the warrant when they photographed the note. Unreasonable execution of the warrant offended s. 8 of the Charter and triggered a s. 24(2) analysis that the motion judge failed to perform.
137The respondent says that when police covertly entered the Nero/Fletcher residence, they were aware that Nero was using a Blackberry to communicate with other alleged co-conspirators. The police were also aware that neither authorization permitted them to intercept those communications. They photographed the sticky notes and made a note of the email address because the term “encryptoid” made them think of “encryption”, a means of communication that might have been of relevance to their investigation.
138The respondent adds that this challenge comes to naught in any event because the evidence was seized (including the devices) when the search warrant was executed on May 23, 2012.
The Governing Principles
139This ground of appeal focuses on the manner in which the general warrant was executed in a single respect: by photographing and noting email addresses on sticky notes found during a covert entry to the Nero/Fletcher residence.
140The operative language in the warrant is the phrase “related to the investigation”. These are not technical terms or terms of art, rather ordinary words used in their ordinary sense. They posit a connection or relation between two things, in this case, the notation and the investigation. The connection need not be direct or incontrovertible.
The Principles Applied
141I would not give effect to this ground of appeal. Photographing and noting the email addresses written on the sticky notes did not exceed what was authorized under the general warrant, and thus did not amount to an unreasonable search or seizure requiring a s. 24(2) analysis prior to admission. I will explain.
142First, it was open to the motion judge to conclude that, considering the objective of the investigation as a whole and the stage to which it had progressed at the time of the covert entry, the substance of the note was “related to the investigation” of a listed offence.
143Police were investigating what they believed to be a large-scale cocaine trafficking operation. The quantities of drugs involved were substantial. They had already seized a stash of 110 kg of cocaine from a storage facility linked to many of the principals. The individuals with whom they were dealing were experienced and surveillance-conscious. That these individuals were communicating with each other was at once self-evident and confirmed by surveillance and cellphone records.
144The contents of the communications between or among those suspected of crime are essential to proof of guilt and demonstration of innocence. Investigators knew about Nero’s use of cellphones. They also knew that he used a Blackberry or similar device to communicate with others. Discovery of further email addresses provided an entrée to further sources of evidence.
145Second, the terms “related to” refer to the investigation of listed offences. They impose no requirement that the information acquired – the email addresses – amount to or constitute admissible evidence of the commission of the offence.
146Third, what is important on review of this determination is whether the conclusion drawn by the motion judge was reasonable. That another judge might have drawn a different conclusion in the circumstances is beside the point.
147Finally, the challenge falls on barren ground because the evidence was obtained when a search warrant was executed at the Nero/Fletcher residence on May 23, 2012 after their arrests.
Ground #5: The Blackberry Search
148During a warranted search of the Nero/Fletcher residence on May 23, 2012 police found Nero’s Blackberry. Subsequently, they searched the Blackberry for information and data contained in it. Nero contends that the search was not authorized by a warrant, as it should have been. As a warrantless search, it was unreasonable. The information acquired should have been but was not the subject of analysis under s. 24(2) of the Charter.
The Background
The ITO
149In the ITO, the informant described several methods of communication used by those involved in trafficking controlled substances. Multiple cellphones and other mobile communication devices are commonplace. A newer trend involves using PGP encryption in order to avoid interception. About two months prior to the execution of the general warrant, Nero was intercepted in communication with someone from Vancouver with whom he discussed communicating with “new” devices.
150The informant in the ITO searched the internet but was unable to find any email servers that corresponded to the email address written on the sticky notes. The informant believed that the addresses were registered to encrypted devices, thus sought authorization to search computers and mobile communication devices found during the search for evidence stored in an electronic format on those devices.
The Search Warrant
151The search warrant issued on May 22, 2012 authorized the police to search for a variety of electronic devices capable of analyzing, creating, displaying, converting or transmitting electronic or magnetic computer impulses or data. Among the mobile communication devices for which the police were authorized to search for included “those known as a Blackberry, pager or text messaging device”.
152The search warrant also authorized police to search the devices for:
Any and all information and/or data, stored in the form of magnetic or electronic coding in computer media or media capable of being read by a computer or with the aid of computer related equipment. This media includes, but is not limited to: floppy diskettes, fixed hard disks, removable hard disk cartridges, tapes, CD-ROMS, laser disks and any other media which is capable of storing data.
The Search of the Blackberry
153During execution of the search warrant on May 23, 2012 police seized several cellphones including two PGP devices. An investigator accessed one of the PGP devices using the password recorded on one of the sticky notes and found thousands of email messages. Over several weeks each individual message was photographed so that it could be preserved for later analysis.
The Arguments on Appeal
154The appellants reiterate here a submission advanced by counsel for a co-accused before the motion judge that the search warrant did not authorize search of the Blackberry to retrieve information or data stored in electronic form. Further, the conduct of the search occurred several weeks after the appellants’ arrest, thus cannot be fairly be justified as a search incident to arrest. As the Supreme Court of Canada later explained in R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, a separate warrant was required to permit a search of the contents of the Blackberry. The absence of such authority rendered the search warrantless, and thus unreasonable, and required a s. 24(2) analysis to determine whether any evidence obtained thereby should be excluded.
155The respondent says that the ITO established a reasonably grounded belief that search of any cellphones or other electronic devices, including a Blackberry, would yield evidence relevant to establish the commission of the listed offences by persons, like Nero, named as targets in the authorizations. Further, the respondent continues, the warrant expressly authorized the search of the Blackberry to obtain the information stored in it.
156The respondent submits that, even without the benefit of the decision in Vu, the ruling of the motion judge properly applied the principles and satisfied the requirements later mandated by Vu.
The Governing Principles
157Computers and mobile communication devices such as Blackberry phones differ in important ways from the places and receptacles governed by the traditional search authorization framework. Searches of these devices engender privacy concerns that have no analogue, thus are not sufficiently addressed by that approach. We cannot assume that a justice who has authorized the search of a place has taken into account the privacy interests that might be compromised by the search of any computers or mobile communication devices that might be found within that place: Vu, at para. 2; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 51.
158A computer search requires specific pre-authorization. What this means is that if police intend to search computers or mobile communication devices found within a place with respect to which they seek a warrant, they must satisfy the authorizing justice, by information on oath, that they have reasonable grounds to believe that any computer or other mobile communication device they discover will contain the things for which they are looking: Vu, at paras. 3, 24.
159It follows from this requirement of pre-authorization that the ITO must contain sufficient information to permit the authorizing justice to find that there are reasonable grounds to believe that any computers or communications devices they discover on execution of the search will contain what they seek: Vu, at paras. 3, 48.
The Principles Applied
160Three reasons persuade me not to give effect to this ground of appeal.
161First, the ITO contains sufficient information to establish a reasonably grounded belief that a search of any cellphone, Blackberry or similar device would contain evidence relevant to establish the commission of a listed offence.
162In the ITO, the informant described the basis for his belief that Nero was using an encrypted device to communicate with others and that a search of that device would yield evidence of a conspiracy to traffic cocaine.
163The information was derived from seizures made during a search at an alleged co-conspirator’s residence; intercepted telephone calls using guarded language, disclosing suspicion of interception and encouraging others to communicate by electronic messaging; the email addresses and passwords inscribed on the sticky notes and the likelihood of the registration of those addresses to encrypted mobile devices; and physical surveillance of activities by Nero consistent with text messaging or the use of PGP technology.
164Second, the search warrant issued on May 22, 2012 and executed at the Nero/Fletcher residence specifically authorized police to search devices like the Blackberry police found at that residence. The warrant authorized a search for “[a]ny and all information and/or data, stored in the form of magnetic or electronic coding”. The police were authorized to search for:
i. cellular telephones and other mobile communication devices, including those known as a Blackberry; and
ii. any and all electronic devices which are capable of analyzing, creating, displaying, converting or transmitting electronic or magnetic computer impulses or data.
165Third, the search conducted after seizure did not exceed in nature or in scope what was authorized under the warrant.
Ground #6: Spousal Communication Privilege
166The final ground of appeal invokes spousal communication privilege and its implications for certain interceptions made under the Part VI authorizations and the use of information obtained by interception to assist in establishing the conditions precedent for issuance of the search warrant on May 22, 2012.
The Background
The Nero/Fletcher Relationship
167Before the motion judge, Nero took the position that at the relevant time, he and Fletcher were common-law spouses. Each filed an affidavit describing the nature of their relationship.
168Nero explained that his parole conditions required him to spend Monday to Thursday evenings of each week at the halfway house in which he resided. He and Fletcher lived together on weekends in various hotels and spent weekday evenings together before he was required to return to the halfway house.
169Each considered the other their common-law spouse beginning in early spring 2011. Each claimed to have begun residing with the other in August 2011. In fall 2011, they became engaged and purchased property together.
170The trial Crown advised the motion judge that he wished to cross-examine Nero and Fletcher on their affidavits. The cross-examination did not take place, however, because the motion judge decided not to hear any submissions by the Crown on the spousal communication privilege issue.
171In response to the spousal privilege claim, the trial Crown filed an affidavit from Nero’s parole officer. In his application for parole, Nero provided information that he was involved in a common-law relationship with another woman. He was given weekend passes to be out of custody, provided he was with this common-law spouse or at his mother’s home. The parole officer was not told that this relationship had ended until July 2011.
172In official documents, such as driver’s licences and tax returns, Fletcher described herself as single and her place of residence as some place other than with Nero at the home on River Beach Drive. Nero’s documents described him as separated and living with his mother.
The Ruling of the Motion Judge
173The motion judge found as a fact that Nero and Fletcher were not common-law spouses at any time material to their claim of spousal communication privilege. He further found that the exclusion of common-law spouses from the spousal communication privilege described in s. 4(3) of the Canada Evidence Act, R.S.C., 1985, c. C-5 (“CEA”), offended s. 15 of the Charter, but was saved by s. 1. It followed that s. 4(3) barred neither the interception of private communications between Nero and Fletcher or use of those communications in the ITO filed to obtain the search warrant executed at the Nero/Fletcher residence.
The Arguments on Appeal
174Nero submits that the motion judge erred in finding that he and Fletcher were not common-law spouses. They were in a committed relationship, had purchased property and lived together and were engaged to be married. Their relationship was of sufficient permanency and duration to make them common-law spouses.
175Nero says that as common-law spouses, the spousal communication privilege applies because s. 4(3) of the CEA violates s. 15 of the Charter and is not saved by s. 1. The remedy for this unconstitutionality is to extend the privilege to common-law spouses. This would render interception of their private communications a breach of s. 189(6) of the Criminal Code. It would follow, Nero continues, that the intercepted private communications would be inadmissible as evidence and could not be relied upon as part of the ITO in connection with the search warrant.
176The respondent contends that Nero’s claim of spousal communication privilege fails both factually and legally.
177The respondent begins with the submission that Nero and Fletcher were not common-law spouses when the interceptions were made. They began to cohabit only seven months before interception of their private communications began. While there is admittedly no universal definition of the period of cohabitation required to establish a common-law relationship, even the most generous definition would require a significantly longer period than seven months to qualify. Further, the relationship was shrouded in secrecy, belied by public documents and Nero’s own representations to parole authorities, and lacked the essential public acknowledgement and recognition required to constitute a common-law relationship.
178The respondent adds that the claim also fails as a matter of law. Nero and Fletcher were not “husband” and “wife” for the purpose of the then provisions of s. 4 of the CEA. The spousal communication privilege of s. 4(3) does not apply to common-law spouses. Binding authority establishes that the failure of s. 4(3) to reach so far as common-law spouses is constitutionally valid. Besides, spousal communication privilege is testimonial only. Neither interception of these communications nor their use in the ITO was barred by the privilege.
The Governing Principles
179Section 4(3) of the CEA is a statutory enactment of a common law class privilege. The subsection provides that no “husband” is compellable to disclose any communications made to him by his “wife” during their marriage, and no “wife” is compellable to disclose any communication made to her by her “husband” during their marriage.
180Section 4(3) CEA consists of three elements:
i. status (“husband” and “wife”);
ii. subject-matter (“a communication”); and
iii. timing (“during their marriage”).
181Section 4 does not define “husband” or “wife” for the purposes of the section or more generally. As a general rule, however, courts have held that the former rules of spousal competency and the preservation of spousal communication privilege do not apply to common-law spouses: see e.g. R. v. Martin, 2009 SKCA 37, 244 C.C.C. (3d) 206, at paras. 15-25.
182In R. v. Nguyen, 2015 ONCA 278, 125 O.R. (3d) 321, leave to appeal ref’d, 2016 CarswellOnt 473 (S.C.C.), this court considered, whether the then spousal incompetency rule extended to common-law spouses. At trial, the Crown had called the common-law spouses of two accused as witnesses for the prosecution. The evidence adduced also included what one accused told his common-law spouse in a conversation after the offence has been committed. The admissibility of this evidence was challenged as barred by spousal communication privilege.
183Three points of significance to this case emerge from the decision in Nguyen.
184First, the spousal incompetency rule, as it then existed, did not extend to common-law relationships. As a result, an accused’s common-law spouse was a competent and compellable witness for the Crown at the accused’s trial: Nguyen, at paras. 7, 158.
185Second, the spousal communication privilege in s. 4(3) of the CEA does not extend to common-law spouses. As a result, a recipient spouse who testifies at trial cannot invoke the privilege to refuse to answer questions about communications passing between spouses during their common-law marriage: Nguyen, at paras. 16-18.
186Third, the spousal communication privilege is testimonial in nature. Properly invoked by the recipient spouse, it precludes the reception of communications during marriage as evidence in the proceedings. The information conveyed, however, is not itself privileged: Nguyen, at paras. 134-136; R. v. Couture, 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 41; R. v. Siniscalchi, 2010 BCCA 354, 257 C.C.C. (3d) 329, at paras. 31-32.
187Section 189(6) of the Criminal Code is in these terms:
Any information obtained by an interception that, but for the interception, would have been privileged remains privileged and inadmissible as evidence without the consent of the person enjoying the privilege.
188Section 189(6) does not create a privilege, but rather preserves any existing privilege that attaches to information despite its interception. It logically follows that if the information obtained by interception is not privileged, s. 189(6) is not engaged and the information, if otherwise relevant, material and not barred by some other evidentiary rule, would be received for consideration by the trier of fact.
189For the purposes of the spousal communication privilege, and despite pronouncements that the information itself is not privileged, s. 189(6) excludes as privileged any information the recipient “husband” or “wife” had a right not to disclose: R. v. Jean (1979), 1979 ALTASCAD 89, 46 C.C.C. (2d) 176 (Alta. S.C., AD), at p. 187, aff’d 1980 CanLII 163 (SCC), [1980] 1 S.C.R. 400; Lloyd et al. v. The Queen, 1981 CanLII 219 (SCC), [1981] 2 S.C.R. 645, at pp. 650-51.
The Principles Applied
190I would not give effect to this ground of appeal. My reasons are two-fold and brief.
191First, it is at least open to serious question on the evidence before the motion judge whether during the period of authorized interceptions Nero and Fletcher were in a bona fide common-law spousal relationship. Any period of cohabitation was brief. The assertion of such a relationship lacked public acknowledgement and was contradicted by official documents the “spouses” created themselves.
192Second, and more importantly, neither the spousal competency rule as it then existed, nor the spousal communication privilege, extends to common-law spouses. It follows that Fletcher could not have asserted privilege if called as a witness, nor could s. 189(6) of the Criminal Code have barred the reception of the intercepted private communications if tendered as evidence by the Crown.
Conclusion
193For these reasons, I would dismiss the appeal.
Released: February 29, 2016 (DW)
"David Watt J.A."
"I agree David Brown J.A."
"I agree L.B. Roberts J.A."
