Court File No.: CRIMJ(P) 1459/16 Date: 2016-08-26
Ontario
Superior Court of Justice
Between:
Her Majesty The Queen Counsel for the Crown: Brian McGuire and Eric Taylor Respondent
- and -
Melissa Merritt and Christopher Fattore Counsel for the Applicants: Joel Hechter, for Melissa Merritt; Peter Zaduk, for Christopher Fattore Applicants
Heard: August 19 and 22, 2016, in Brampton
Ruling No. 1
RESTRICTION ON PUBLICATION 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.
F. Dawson J.
[1] Melissa Merritt and Christopher Fattore are to be tried before me for multiple counts of murder, commencing on September 12, 2016. They were arrested on January 28, 2014 following a six month police investigation that involved various forms of electronic surveillance including via their family computer. Six months have been set aside for the trial, which period includes time for extensive pretrial motions.
[2] On May 31, 2016 Durno J. issued a general warrant pursuant to s. 487.01 of the Criminal Code. The warrant permitted the police to download the entire contents of the email mailbox known as fattorefamilyrocks@gmail.com. The police had previously been authorized to undertake some examination of the mailbox by means of other general warrants. In addition, the account had effectively been frozen following the arrests. Part VI authorizations had also permitted police to intercept emails during the periods of those authorizations. Keystroke monitoring software had been surreptitiously installed on a Compaq CQ-10 mini laptop used by the family.
[3] The general warrant issued by Durno J. on May 31, 2016 also provided that the police could analyze emails downloaded from the “fattorefamilyrocks” account which were in temporal proximity to certain Google search strings found on the CQ-10 computer. Those search strings show an interest in causing death by choking and other matters that are relevant to the charges before the court.
[4] The stated objective of the investigators, as set out in the information to obtain (ITO) the general warrant of May 31, 2016, was to try to determine from an analysis of the emails who typed those Google search strings on the CQ-10 computer.
[5] The general search warrant of May 31, 2016 is the last issued in a long sequence of production orders, general search warrants, search warrants and Part VI authorizations to intercept private communications, granted in the course of the investigation. I am not yet aware of the details, but I have been advised that all of those orders, warrants and authorizations are to be challenged by the accused pursuant to s. 8 of the Charter by way of pretrial motions.
The Issue Before The Court
[6] After the police executed the general warrant of May 31, 2016 they began to look at the downloaded email account. At that point they saw a folder related to family lawyers. The motive for the alleged murders arises from a custody dispute over the children of Melissa Merritt and her previous partner, Caleb Harrison, one of the deceased. The other deceased are Caleb Harrison’s parents, Bridget and William Harrison.
[7] When the police saw the family lawyer folder they became concerned about solicitor-client privilege. They stopped their examination.
[8] On July 31, 2016 defence counsel and Crown counsel participated in a conference call with Durno J. It was agreed that the entire contents of the seized email account would be provided to counsel for Ms. Merritt so that any emails for which a claim of solicitor-client privilege was to be advanced could be identified, segregated and sealed. As set out at para. 12 of the affidavit of Brittany Sherwood, an associate in defence counsel’s office, this was done “on the understanding that all non-privileged emails would be burned on another disc to be returned to the Crown, and police.”
[9] Despite the agreement that the balance of the emails would be returned to the Crown and the police that has not happened. Counsel for Ms. Merritt instead brought a last minute application before the court on August 5, 2016 asking for orders that all of the emails be sealed and prohibiting the Crown, the police and “anyone acting at their direction” from accessing any email from the account until the determination of the pretrial applications. The applicant also asked for an order prohibiting communication of any information about this application or the applicant’s Garofoli application (which has not yet been filed) to any member of the Peel Regional Police until after all cross-examinations (for which leave will be required) have been completed.
[10] The grounds specified in the application for the sweeping relief claimed are many. I observe, however, that in the original application there is no mention of a claim that the general warrant is facially invalid. A claim of facial invalidity was added in a supplemental application filed on the morning of August 10, 2016 when the matter came back before the court. The delay to August 10 was granted so that all parties could formulate positions about what should be done, having regard to the fact that the initial application was only filed on the morning of August 5, 2016 when the case was coming before the court to address certain disclosure matters.
[11] While an attack on the general search warrant based on facial validity has been added, it is clear that the main thrust of the applicant’s attack on the general warrant is subfacial in nature. In addition, it is apparent that the applicant is making serious allegations of abuse of process. There is an allegation, not fully particularized in the material filed so far, that the police exceeded the scope of their authority under previous general warrants and possibly Part VI authorizations, and in doing so became aware of the solicitor-client privilege issue before making their application to Durno J. on May 31, 2016. The allegation is to the effect that the police then deliberately failed to disclose their knowledge of the solicitor-client privilege issues in the ITO placed before Durno J. on May 31, 2016.
[12] When the matter was first before the court on August 5, 2016 I expressed my concerns about what dealing with this issue now, rather than in the course of pretrial motions, would do to the orderly progress of this trial. I mentioned that it might be that facial validity could be dealt with at this point, at least on a cursory basis. My thinking was that if there was a clear and obvious problem with the facial validity of the warrant it might be appropriate to grant a remedy akin to quashing the warrant at this time. Certiorari is not available to review the warrant as it was issued by a Superior Court judge. The remedy would have to be pursuant to s. 24(1) of the Charter for a s. 8 violation or pursuant to a common law power: see R. v. Budd, [2000] O.J. No. 4649 (C.A.).
[13] While counsel for the applicant has added a claim of facial invalidity, as already mentioned he has maintained emphasis on a subfacial attack. In addition to the abuse of process allegation, counsel has also filed an affidavit from a computer expert opining on the inability of the police to determine who typed the Google search strings from an examination of the emails downloaded from the “fattorefamilyrocks” account. Without getting into the details, the affidavit relates to a further subfacial attack on the general warrant.
[14] Crown counsel take the position that because the accused will ultimately seek to exclude any evidence developed as a result of the general warrant of May 31, 2016 this entire application should be deferred to that point during the pretrial motions where it would normally arise. Crown counsel also submit that, although on August 10, 2016 Mr. Hechter said he would not base his attack on this general warrant on the prior warrants and how they were obtained, if leave to cross-examine the affiant and subaffiants is granted, that will prove to be difficult.
[15] In addition, the Crown is concerned about putting forward witnesses without having full and proper notice of the serious abuse of process allegations which defence counsel acknowledge they intend to pursue. Crown counsel submit that they are additionally disadvantaged by the fact that they have not been able to speak to the police or other witnesses due to the claim made for an order that they be prevented from doing so.
Analysis
[16] There are two things which I wish to refer to at the outset which I find to be particularly significant in the unusual circumstances that have arisen, and which tend to distinguish this situation from the cases canvassed in the course of this application.
[17] First, I am the trial judge and we are on the eve of trial. This is not a situation where a search warrant has been executed but no charges have been laid or a trial date is still far off. In such circumstances there is authority for the proposition that an application can be made to a Superior Court judge well in advance of a trial to review a warrant for both facial and subfacial validity: see Budd; R. v. Branton (2001), 53 O.R. (3d) 737 (C.A.); R. v. Vijaya, 2014 ONSC 1553. However, where the trial is imminent and the main issue is the admissibility of the evidence a consideration of the validity of the warrant should be deferred to the trial judge to be dealt with during the trial: R. v. Zevallos (1987), 37 C.C.C. (3d) 79 (Ont. C.A.); R. v. Trang, 2003 ABQB 774; Vijaya, at para. 21.
[18] As I am the trial judge and we are on the eve of trial I see my trial management function as a significant factor in determining when and how the issues raised in these late breaking applications should be dealt with. In the present circumstances it makes much more sense that the issues raised in these recent applications should be blended in with the other pretrial motions. That will allow them to be dealt with in a logical and orderly fashion. If the approach suggested by Mr. Hechter is followed the entire trial schedule, with its allocation of scarce judicial resources, will be disrupted. It is very likely that the trial before the jury will be significantly delayed if we do not stay on track as scheduled some time ago.
[19] I also agree with Crown counsel’s submission that it will be very difficult to deal with the issues in relation to the general warrant of May 31, 2016 without getting into matters related to the prior warrants and authorizations. That is particularly so given the nature of the abuse of process allegations the defence intends to advance. Procedural fairness to the Crown and to the police officers against whom those allegations will be made requires proper notice and the ability of Crown counsel to meet with the officers involved to prepare the case.
[20] In short, I am convinced that undertaking the kind of review of the general warrant that defence counsel proposes at this point will be highly disruptive to a fair and orderly trial and is not in the overall interests of the administration of justice.
[21] Second, I remain concerned by the fact that the procedure agreed to before Durno J. has not been respected. There is no indication in the record before me that a claim of facial or subfacial invalidity of the general warrant of May 31, 2016 had been broached before the agreement was struck to turn over to defence counsel all of the proceeds of the seizure to facilitate the defence claim of solicitor-client privilege. In the normal course the police would have had the proceeds of the search available to them to continue their investigation, given that there was no challenge to the warrant.
[22] With respect, counsel have taken advantage of the procedure they agreed to and the investigation has now been disrupted by their not returning the non-privileged documents. I acknowledge that counsel did move promptly to bring the matter before the court and I do not mean to impute any deliberate impropriety. The fact remains that the agreement has not been adhered to.
[23] The fact that no challenge to the warrant was advanced prior to the agreement tends to undermine defence counsel’s submission that more than the admissibility of the evidence is at stake. I note that an accused’s privacy interests are always at stake in a situation where a s. 8 Charter violation is raised. What makes this situation different, the defence says, is that we can protect privacy interests more completely in this case because the police have not yet been able to fully review the proceeds of the search. However, that is only because the agreement reached before Durno J. on July 21, 2016 has not been adhered to.
[24] I have also taken into account that I am not yet convinced that the warrant is facially invalid. I have considered the arguments advanced on behalf of the accused. The accused submits that the ITO is insufficient on its face to support the issuance of the warrant because it does not set out reasonable and probable grounds to believe that information concerning the offence will be obtained by accessing and analyzing the email.
[25] I would point out the following. The police have the Google search strings from the CQ-10 computer. In the ITO the affiant states that he has been advised by Cst. MacDonald, a certified computer forensic examiner, that when he examined the CQ-10 he found “a pattern to the internet activity” stored on the computer. The pattern “consisted of Gmail account checking, looking and replying to advertisements on Kijiji, and searches on Google.” The ITO goes on to say that temporal “proximity of Gmail checking and Kijiji is important as this is how buyers and sellers communicate by email”. However, Cst. MacDonald could not retrieve the contents of the emails from the computer.
[26] At the moment, my view is that this combination of evidence in the ITO provides a credibly based probability that there are reasonable grounds to believe that the general warrant will lead to finding emails (information) that are proximate to the Google search strings and which may assist in determining, circumstantially or otherwise, who typed one or more of the Google search strings. That is what must be established to support the warrant in the circumstances of this case. The ITO need not establish a likelihood that an analysis of any proximate emails that are located will constitute evidence: see Baron v. Canada, [1993] 1 S.C.R. 416, at paras. 47-49; Canadian Oxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743.
[27] Mr. Hechter also submits that the warrant, as opposed to the ITO, is defective on its face because at para. 2(b) it permits analysis of the emails sent and received “in a time frame consistent with Google searches identified below that have been found during the analysis of the Compaq Mini CQ-10”. Counsel submits that “consistent with” is too vague and points out that the specific Google searches are not set out on the face of the warrant. While counsel agrees that the reference to “identified below” is clearly a reference to the ITO, counsel relies on R. v. Ting, 2016 ONCA 57, at paras. 58-60, for the proposition that the description of the place to be searched must be set out in the warrant and not the ITO.
[28] I observe that the situation here is factually different than in Ting. In Ting two s. 487 warrants to search a single targeted apartment were issued. They stated only a municipal address of a multi-unit building without differentiating which of the units was to be searched. The police ended up searching two units when the original intent was to search only one. While the ITO for the second warrant adequately described the exact place to be searched, the warrant made no direct reference to the ITO in this regard. Quite apart from that, the court noted the importance of the subject of the warrant being able to determine from the face of the warrant whether the police were authorized to search the particular premises.
[29] In the present case we are dealing with a general warrant to look for information by examining email. The body of email that may be examined to determine which emails may be further analyzed pursuant to the warrant have already been secured and identified. The ambiguity alleged in the warrant relates to the description of the temporal proximity of the emails that may be analyzed to the Google searches. On that matter the warrant makes direct reference on its face to the Google searches identified with complete particularity in the ITO. At the moment I am of the view that the circumstances of the present case are quite distinguishable from Ting.
[30] I have referred to my views about the facial validity of the warrant “at the moment” because I reserve my right to reconsider my position when all of this is argued more fully later. I have expressed my preliminary view to indicate that I have examined the warrant to the extent that I am not able to say that it is clearly and obviously an invalid warrant.
[31] Pulling these threads together, I conclude that the facial and subfacial validity of the May 31, 2016 general warrant will be determined later during the pretrial motions. In accordance with the agreement before Durno J. the contents of the email account downloaded pursuant to the warrant which are not subject to a claim of privilege are to be available to the Crown and the police for the continuation of their investigation. As it is apparent that there are s. 8 issues relating to proximity of the emails to the Google searches, it is to be hoped that the police will keep careful notes about which emails are accessed and which emails are analyzed.
[32] I am not prepared to make or continue any order which prevents Crown counsel from speaking with the police or other witnesses about this or any other pretrial motion. It will be for Crown counsel, as officers of the court who are now generally aware of the nature of abuse of process allegations, to determine the nature and extent of their contacts with the police officers and other witnesses and to determine what documents filed on the pretrial motions to show them, if any: see R. v. Lajeunesse, [2006] O.J. No. 1445 (C.A.), at para. 24-28.
F. Dawson J.
Released: August 26, 2016