ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 339/13

DATE: 2014-04-02

B E T W E E N:

Her Majesty the Queen

Mark Poland, for the Crown

• and -

Marlon Nurse and Darryl Plummer

Enzo Battigaglia, Counsel for Mr. Nurse

Margaret Bojanowska and Kate Oja, Counsel for Mr. Plummer

HEARD: March 21, 25, 2014

ENDORSEMENT

PUBLICATION BAN:

Pursuant to subsection 648(1) of the Criminal Code,

no information regarding this portion of the trial shall be published in any document

or broadcast or transmitted in any way before the jury retires to consider its verdict.

Coroza, J

OVERVIEW

[1] Marlon Nurse and Darryl Plummer (the “applicants”) stand charged that they committed first degree murder. The deceased, Devinder Kumar, was stabbed to death on November 10, 2011. The Crown alleges that Mr. Kumar was Mr. Nurse’s landlord and that he planned and recruited Mr. Plummer to carry out the murder in return for a promise of financial reward.

[2] Mr. Kumar’s body was found on the road near 12161 the Gore Road in the Town of Caledon. Within minutes of the discovery of the body, Mr. Plummer was arrested at gunpoint about 300 to 400 meters from the location of the crime scene.

[3] Mr. Nurse was initially at the scene and treated as a material witness. There is no dispute that he lived at 12161 the Gore Road with his girlfriend, Julie Neild, and his daughter. Mr. Nurse was eventually arrested at the OPP Caledon Detachment later that evening.

[4] The Crown argues that the plan to murder Mr. Kumar is revealed by a series of Blackberry Messenger (BBM) chats that passed between the applicants’ Blackberry smartphones (phones) in the days leading up to the murder.

[5] Both applicants were in possession of Blackberry phones which were seized incident to arrest.

[6] The phones were kept in an OPP vault, along with a Blackberry Playbook Tablet (Playbook) seized from Mr. Plummer’s hotel room, and computers seized from Mr. Nurse’s residence. All of these items had been seized pursuant to search warrants. On November 16, 2011, the phones and the Playbook were removed and provided to the OPP Ecrimes Unit pursuant to a search warrant issued by Justice of the Peace Creelman on that day.

[7] However, the OPP Ecrimes unit could not access the devices because they were password protected and the OPP did not have the technical expertise to physically extract the computer chips from the devices in order to defeat the passwords.

[8] On November 23, 2011 the OPP provided the devices to the RCMP Technological Crime Unit. The RCMP had the expertise to retrieve the data of Blackberry devices locked by a password.

RCMP SEARCH

[9] A forensic copy of the memory of the phones was retrieved by a process of physical extraction. This was done by the RCMP on November 25, 2011 for Mr. Nurse’s phone and on December 8, 2011 for Mr. Plummer’s phone.

[10] The memory was then imaged and a BIN file created. The BIN file contained the raw data (described as a series of 0s and 1s). The BIN file that was created for each phone was eventually provided to the OPP and stored on an OPP server.

[11] This raw data was then analyzed by software named Cellebrite. The Cellebrite analysis took place on December 9, 2011, for Mr. Nurse’s phone and on December 12, 2011, for Mr. Plummer’s phone.

[12] The Playbook was subjected to the same method of chip extraction as the phones. However, the internal software of a Playbook is different from a Blackberry phone and had to be analyzed using software written by RCMP engineers to extract user data.

[13] A year later, the Cellebrite program had been updated and, at the request of the Crown, the police accessed the BIN file on the OPP server and conducted a second examination with the updated Cellebrite software. The second examination revealed deleted BBM text/chats between the two accused.

OTHER COMPUTERS AND DEVICES

[14] The two phones were not the only devices examined by the police. A warrant to search Mr. Nurse’s residence was obtained on the property of 12161 the Gore Road. The police seized a computer, laptops and computer related equipment including:

1. HP Pavilion Laptop

2. Dell Inspiron Laptop

3. E Machine Laptop

4. Apple I Mac Computer System

5. Jump Drive

6. USB Memory Stick

7. Kingston 16 GB Memory Stick

OTHER SEARCH WARRANTS

[15] As a result of the arrest of both applicants and the ensuing investigation into the murder of Mr. Kumar, the police obtained a number of other judicial authorizations in this case:

1. production order issued on December 1, 2011 directing Rogers Communications to produce various records for a phone number (647-893-3417) associated to Mr. Nurse;

2. production order issued on February 15, 2012 directing Toronto Dominion Bank to produce various records for two bank accounts belonging to Mr. Nurse;

3. production order issued on July 27, 2012 directing Equifax to produce records related to Mr. Nurse;

4. search warrant issued on February 15, 2012 authorizing a search of a storage locker rented out by Julie Nield, (the girlfriend of Mr. Nurse) in relation to an investigation relating to possessing stolen property from the 12161 Gore Road residence;

5. two search warrants issued on February 28 and February 29, 2012 authorizing a search of the computer, laptops, hard drives and thumbdrives seized from 12161 the Gore Road;

6. production order issued on November 28, 2013 directing Rogers to produce cell phone tower records related to Mr. Nurse;

7. production order issued on November 28, 2013 directing the Toronto Film School to produce records in relation to Mr. Nurse;

8. production order issued on November 28, 2013 directing the Ministry of Health and Long Term Care to produce records in relation to Mr. Nurse;

9. production order issued on November 28, 2013 directing the Toronto Dominion Bank to produce records in relation to Mr. Nurse;

10. production order issued on November 26, 2013 directing the HSBC Bank Canada to produce records in relation to Mr. Nurse;

11. production order issued on November 28, 2013 directing the Presidents Choice Financial Bank to produce records in relation to Mr. Nurse.

ISSUES

[16] On March 9, 2014, I ruled that the warrant issued by Justice of the Peace Creelman on November 16, 2011 was valid on its face. I declined to make a specific finding in relation to whether the searches executed by the police pursuant to this warrant were overbroad or unreasonable. As a result of my ruling that the searches on the devices were not warrantless, the applicants called two witnesses (Cst. Bernier from the RCMP and Mr. Dupuis from the OPP) and filed an agreed statement of facts relating to another analyst (Mr. Philipose of the RCMP) on the voir dire. Both applicants argued that the searches of the phones and Playbook infringed s.8 of the Charter.

[17] Both applicants argue that the search of the devices violated s. 8 because:

1. the November 16, 2011 warrant issued by Justice of the Peace Creelman authorizing the search of the devices is overbroad and contains no parameters on what the police were entitled to search on these devices; and

2. the searches conducted by the police on these specific devices was overbroad and not executed in a reasonable manner.

[18] The applicant, Mr. Nurse, also challenges the facial and sub-facial validity of the following warrants:

1. telewarrant issued on November 12, 2011 authorizing a search at 12161 the Gore Road in the Town of Caledon;

2. search warrant issued by Justice of the Peel Creelman authorizing the search on the computers, laptop and related equipment seized from 12161 the Gore Road;

3. all production orders issued in this case in relation to Mr. Nurse;

4. two search warrants authorizing a search of the OPP ECrimes property vault issued February 28 and February 29, 2012;

5. search warrant authorizing the search of the storage locker leased by Julie Neild on February 15, 2012

CONCLUSIONS

Blackberry Devices

[19] For further written reasons that will follow, I agree with the applicants that the searches of the Blackberry phones and the Blackberry Playbook violated s. 8 of the Charter. After reviewing the evidence of Cst. Bernier, Mr. Dupuis and Mr. Philipose, I find that the police search on the Blackberry devices was overbroad and not executed in a reasonable manner.

[20] The Information to Obtain (ITO) filed in support of the warrant issued on November 16, 2011, was drafted in such a way that limited the police to search for the following: 1) communications or correspondence between the applicants and 2) communications and correspondence between Mr. Nurse and Mr. Kumar.

[21] The evidence on the voir dire is that the subsequent search and the examination of the Blackberry devices was not limited to simply an examination of items or files that could contain communications and correspondence between the parties named, but also extended to a more sweeping search and examination of multi-media, web browser history, bookmarks, browser data, cookies, and contact lists.

[22] The admissibility of any evidence obtained from the search of these Blackberry devices will be determined pursuant to s. 24(2) of the Charter.

Other Warrants

[23] Mr. Nurse’s facial and sub-facial challenges to the following warrants based on violations of the Charter are dismissed:

• telewarrant issued on November 12, 2011 authorizing a search at 12161 the Gore Road in the Town of Caledon;

• search warrant issued by Justice of the Peace Creelman on November 16, 2011 authorizing a search of the computers and related equipment seized from 12161 Gore Road

• production orders issued on December 1, 2011 (Rogers Communications); on February 15, 2012 (Toronto Dominion Bank);

• production order issued on July 27, 2012 (Equifax)

• search warrant authorizing a search of the OPP ECrimes property vault issued February 29, 2012

• search warrant authorizing the search of the storage locker on February 15, 2012

• production order issued on November 26, 2013 (HSBC Bank Canada)

• production order issued on November 28, 2013 (Toronto Film School)

• production order issued on November 28, 2013 (Toronto Dominion Bank)

• production order issued on November 28, 2013 (Presidents Choice Financial Bank)

[21] I defer ruling on the sub-facial challenge of the production orders issued on November 28, 2013 for Roger Communications and OHIP, pending further argument by the parties as to what information should be excised from the ITO sworn by Det. Sortino used to obtain these specific production orders in light of my finding that the search of the devices violated s.8 of the Charter. The ITO supporting the grounds to believe that the records in the possession of these two organizations will afford evidence, relies on data obtained from Mr. Nurse’s phone and Mr. Kumar’s Blackberry phone.

Coroza, J

Released: April 2, 2014