This week’s top three summaries: R v Baker, 2019 BCCA 199, R v Bao, 2019 ONCA 458, and R v Vey, 2019 SKQB 35.

R v Baker (BCCA)

[June 6/19] Murder Intent - Relevance of DNA, Jury Charge - Need for Analytical Order - 2019 BCCA 199 [Reasons by Frankel J.A., with Goepel J.A., and Butler J.A. Concurring]

AUTHOR’S NOTE: The legal elements of murder can be very complicated.  This is especially the case with multiple accused trials. In these cases, judges must bring analytical order to the proposed jury charge.  This case stands for the proposition that a failure to order a charge in the direction of the analysis that the jury must go through can be fatal to a conviction on appeal.  Here, the problem was that the trial judge instructed on party liability BEFORE the instruction on principle liability for murder.  

Another significant problem leading to the success of the appeal is the trial judge's instruction to the jury to consider "the DNA evidence" on the issue of intent for murder.  Here the DNA consisted of various persons DNA in blood on clothing.  Essentially, it was the type of evidence that can establish presence at the murder by the people who deposited their DNA on the items analyzed.  However, the trial judge instructed the jury they could consider it in relation to the intent for murder - the Court of Appeal could not find a way in which this would be relevant.

Pertinent Facts and Overview

"Mr. Reno's body was found in a box on the property of Mr. Baker's mobile home; Mr. Reno's head was wrapped in plastic. The Crown's case was comprised mainly of text messages between Mr. Baker and Mr. Lindgren, call details obtained from service provider records, evidence from the video-surveillance system Mr. Baker had installed inside and outside his mobile home, DNA and blood evidence, the testimony of a forensic pathologist, a statement Mr. Lindgren made to the police, and the testimony of Mr. Baker's former girlfriend. In many of the text messages Mr. Lindgren pretended to be his own father ("Dad"), whom he portrayed as a member of a criminal gang. Mr. Baker's former girlfriend testified that prior to Mr. Reno's death she overheard Mr. Baker and "Kevin" talk about killing Mr. Reno." (Para 2)

"The Crown's position was that Mr. Baker had agreed to help Dad kill Mr. Reno by beating Mr. Reno and then holding him until either Dad or others directed by Dad came and killed him. However, after Mr. Baker and Mr. Zaporoski beat Mr. Reno at Mr. Baker's mobile home, Mr. Reno died. A forensic pathologist opined death was caused by multiple blows to the head (i.e., blunt force trauma). However, the pathologist could not exclude the possibility Mr. Reno had suffocated from plastic wrapping placed on his head while he was still alive; it was not possible to determine whether those wrappings had been placed pre or post-mortem." (Para 4)

"For the reasons that follow, I would allow these appeals on the basis that: (a) the jury charge was disorganized and confusing; and (b) the trial judge erred in directing the jury to consider certain forensic evidence on the issue of intent." (Para 7)

The Analytical Organisation of a Jury Charge

"Trial judges are afforded flexibility in crafting jury charges.  On appeal the focus is on whether the charge adequately prepared the jury to perform its duty of rendering a true verdict according to the evidence.  As Justice Moldaver stated in R. v. Calnen, 2019 SCC 6 (CanLII):

[8]        An appellate court undertakes a functional approach in reviewing a jury charge, asking whether the charge as a whole enabled the trier of fact to decide the case according to the law and the evidence: R. v. Mack, 2014 SCC 58 (CanLII), [2014] 3 S.C.R. 3, at para. 49; R. v. Jaw, 2009 SCC 42 (CanLII), [2009] 3 S.C.R. 26, at para. 32.  As Bastarache J. wrote in R. v. Daley, 2007 SCC 53 (CanLII), [2007] 3 S.C.R. 523, at para. 30:

The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind of the jury that matters, and not whether a particular formula was recited by the judge.  The particular words used, or the sequence followed, is a matter within the discretion of the trial judge and will depend on the particular circumstances of the case.

[9]        In short, the test is whether the jury was properly, not perfectly, instructed: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 62.  At the end of the day, the overriding question is whether the jury was properly equipped to decide the case … (Para 34)

"It is now accepted that it is open to a trial judge to provide all or part of a jury charge in writing.  In R. v. Nieto, 2007 MBCA 82 (CanLII) at para. 47, 222 C.C.C. (3d) 510, leave to appeal ref’d [2008] 1 S.C.R. xi, Justice Hamilton described written instructions as “an important aid to the very difficult task often faced by a jury.”  In R. v. Yumnu, 2010 ONCA 637 (CanLII) at para. 357, 260 C.C.C. (3d) 421, Justice Watt described them as being “conducive to enhancement of jury comprehension”." (Para 37)

"Pre-charge conferences — which are provided for in s. 650.1 of the Criminal Code — are common in British Columbia. When a trial judge chooses to provide counsel with a draft charge, it is not unusual for the draft to go through a number of revisions before the charge is finalized. Copies of the various drafts should be marked as part of the trial record so they are available in the event of an appeal." (Para 40)

"In R. v. Feng, 2014 BCCA 71 (CanLII), 307 C.C.C. (3d) 199, this Court discussed the fact that how a charge was organized is a factor in assessing its efficacy.  This includes the analytic sequence of the instructions.  In that case, which involved one accused charged with second degree murder, the Court said this:

[56]      While the structure of a jury charge is a discretionary matter for the trial judge and therefore is entitled to deference, it must give the jury the necessary tools to properly decide the issues before them.  In this case, where the jury had to consider three potential verdicts [second degree murder, manslaughter, and not guilty] and two defences [self-defence and provocation], considerable care had to be taken in ensuring they understood the proper sequence to their deliberations." (Para 48)

Here, the problems flowed from the following: "However, in his charge, the trial judge started with Mr. Lindgren and party liability, rather than with Mr. Baker, who was first on the indictment, and principal liability." (Para 50)

"The Crown accepts it would have been better for the trial judge to have reviewed the elements of murder before addressing party liability. However, the Crown says the judge's failure to do so did not leave the jury unable to render an informed decision on the essential issues in the case. In this regard, the Crown points to defence counsel's closing submissions and the brief summary instructions the judge gave on the second day of the charge, in which he told the jury to consider the liability of Mr. Baker and Mr. Zaporoski before that of Mr. Lindgren." (Para 55)

"I am unable to accept the Crown's submission. In my view, the charge failed to provide the jury with a proper sequential framework for assessing each accused's liability. Even in transcript form some parts of the charge are difficult to follow. Given the number of accused, the number of possible verdicts, the alternate routes to liability, and the fact that the instructions were provided only orally, it was of the utmost importance that the charge provide the jury with a clear and logical step-by-step process it could apply during its deliberations. This it did not do." (Para 56)

Can Non-Weapon Located DNA Be Relevant to Intent for Murder?

"In instructing the jury on the first day of the charge as to the evidence it could consider in deciding whether Mr. Baker had the intent for murder — i.e., whether Mr. Baker meant to cause Mr. Reno's death or caused Mr. Reno bodily harm he knew was likely to cause death and was reckless whether death ensued — the trial judge directed the jury's attention to the following: (a) the nature and extent of Mr. Reno's injuries; (b) the overheard conversation; (c) the text messages between Mr. Baker and Mr. Lindgren; and (d) "The DNA evidence". The judge told the jury to consider the same evidence, except for the text messages, in deciding whether Mr. Zaporoski had the intent for murder." (Para 65)

"After the jury had been excused for the day, counsel for Mr. Zaporoski objected to the jury being told it could consider the DNA evidence on the issue of intent..." (Para 66)

The trial judge instructed:

"I also said that you can consider the DNA evidence in terms of -- I probably should expand on that, the blood evidence. You know from the evidence that there was blood of Mr. Reno found in a -- a bedroom of Mr. Baker's residence. You know that there was some blood found on articles of clothing. You don't have specific evidence as to the amount of blood that was found, but you do have pictures, for instance, of jeans that have spots which are known to be blood after the DNA analysis and the evidence of Mr. Gagnon in that regard.

So from the evidence you can find -- if you can find that Mr. Baker or Mr. Zaporoski intended when they assaulted Mr. Reno to cause his death, then the Crown would have proved murder." (Para 67)

"I agree with the Crown that the jury was entitled to have regard to the blood spatter evidence in considering whether the intent to commit murder had been proven. As the Crown submits, that evidence could be viewed by the jury as supporting a finding Mr. Reno had been subjected to multiple blows which, in turn, could support a finding that the person or persons who struck those blows either intended to kill Mr. Reno or knew the blows were likely to cause his death." (Para 70)

"However, I do not agree that on the issue of intent the jury was entitled to consider the DNA/blood evidence relating to various pieces of clothing.  Although that evidence was relevant to whether Mr. Baker and Mr. Zaporoski were involved in beating Mr. Reno, in the event the jury found them to have been so involved, it was not probative with respect to their intentions.  To paraphrase Justice Doherty in R. v. Watson (1996), 1996 CanLII 4008 (ON CA), 108 C.C.C. (3d) 310 at 323 (Ont. C.A.), as a matter of human experience and logic the fact Mr. Reno’s blood was found on clothing belonging to Mr. Baker and Mr. Zaporoski did not make it more probable that Mr. Baker and Mr. Zaporoski had the requisite intent for murder.  Accordingly, the trial judge erred in instructing the jury it could consider that evidence on the issue of intent." (Para 71)

Appeal allowed, new trial ordered. (Para 79)

R v Bao (ONCA) 

[June 4/19] Police Eye-Witness Identification - Use of Single Photograph - 2019 ONCA 458 [Reasons by Trotter J.A., Watt J.A. and Paciocco J.A. Concurring]

AUTHOR’S NOTE: Police eye-witness observations are subject to the same frailties as the rest of humanity.  Fleeting observations of strangers are subject to the same well-known issues.  The use of a single photograph to subsequently identify the culprit can distort police recollections just as much as that of a civilian witness.

Pertinent Facts

"The appellant, Ai Ming Bao, was convicted of one count of possession of marijuana for the purpose of trafficking, contrary to s. 5(3)(a) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. His conviction rested on the fleeting observation of a police officer, who identified the appellant as the driver of a vehicle that sped past him at 50 km/h." (Para 1)

"On August 15, 2015, P.C. Michael Storozuk was investigating a collision involving a motorcycle. He parked his cruiser in a manner that prevented other vehicles from driving through the accident scene. As P.C. Storozuk was talking to a tow-truck driver, he saw a minivan drive past him, "out of the corner" of his eye, at a distance of 15 feet. It was travelling at a "normal rate of speed" of 50 km/h. He said that the driver's side window was open." (Para 3)

"P.C. Storozuk yelled at the driver to stop. Acknowledging that he had merely "seconds" to make his observation, P.C. Storozuk described the driver as an "Asian male" with "dark hair". P.C. Storozuk testified that the driver "looked shocked and almost panicked." From his fleeting glance, he estimated that the driver was 5'9" to 5'10". In cross-examination, he agreed that this estimate was "very approximate" and acknowledged that the driver could have been between 5'7" to 6'. He could give no further description of the driver, or of the driver's clothing." (Para 4)

"After the minivan went through the accident scene, it immediately made a right-hand turn and accelerated away. P.C. Storozuk got into his cruiser and gave chase. The minivan travelled about 300 meters before crashing into a hydro pole." (Para 5)

"P.C. Storozuk searched the glovebox and found a wallet. It was conceded that the wallet belonged to the appellant. It contained numerous bank cards, credit cards, recent ATM receipts, and other items. P.C. Storozuk "focused on" an OHIP card found in the wallet, which bore the appellant's name and photograph. P.C. Storozuk testified that he recognized the appellant as the person who drove past him at the first accident scene." (Para 6)

"Returning to the minivan, P.C. Storozuk insisted that the driver's side window was open when it passed him and when he found it abandoned after striking the hydro pole. He stated that he did not roll the window up. A photo from the scene taken by P.C. Storozuk showed that the window was rolled all the way up. P.C. Storozuk had no explanation for the discrepancy but said, "I know for a fact . . . it was down" (i.e. that it was open) when the minivan drove past him." (Para 9)_

Frailties of Eye-Witness Evidence

"This case provides another example of an honest witness purporting to make an accurate eyewitness identification. However, given that P.C. Storozuk only made a fleeting observation, and in light of how events transpired that evening, his identification of Mr. Bao was rendered worthless. Accordingly, the appellant’s conviction is unreasonable and cannot be supported by the evidence: see Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(a)(i); R. v. Quercia (1990), 1990 CanLII 2595 (ON CA), 75 O.R. (2d) 463 (C.A.), at pp. 465-466; R. v. Malcolm (1993), 1993 CanLII 3425 (ON CA), 13 O.R. (3d) 165 (C.A.), at pp. 173-174; R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 30 O.R. (3d) 419 (C.A.), at p. 423." (Para 13)

" In his reasons, the trial judge identified some of the inherent frailties generally associated with eyewitness identification evidence. They are well known and have been discussed by the courts on countless occasions: see e.g. R. v. Hibbert, 2002 SCC 39 (CanLII), [2002] 2 S.C.R. 445, at para. 50; Peter deC. Cory, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation(Winnipeg: Manitoba Justice, 2001), at pp. 31-34. Although these frailties are easily identified, problems sometimes arise in the failure to focus on the specific frailties presented in individual cases: see R. v. Lewis, 2018 ONCA 351 (CanLII), at para. 16; R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA), 73 O.R. (3d) 481 (C.A.), at para. 79; R. v. Gough, 2013 ONCA 137 (CanLII), at paras. 34, 38-39; and R. v. Pimentel (1995), 1995 CanLII 882 (ON CA), 85 O.A.C. 395 (C.A.), at para. 11. That is what happened in this case." (Para 14)

The Frailties in the Officer's Purported Identification

"I start with the fact, which is common to many identification cases, that this was a case of stranger identification. P.C. Storozuk and the appellant did not know each other. As this court cautioned in R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 117 C.C.C. (3d) 481, at para. 100, concerns about eyewitness identification “are particularly high where the person identified is a stranger to the witness”: see also R. v. Goran, 2008 ONCA 195 (CanLII), 234 O.A.C. 283, at para. 32." (Para 19)

"Perhaps most importantly, P.C. Storozuk had the opportunity to observe the driver for mere seconds, from a distance of 15 feet, while the vehicle passed at a speed of 50 km/h. As the trial judge noted in his reasons, the vehicle would have been traveling at 14 meters per second. By any measure, this was nothing more than a fleeting glance: Mezzo v. The Queen, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802; R. v. Virgo, 2016 ONCA 792 (CanLII), at para. 12; R. v. Boast, 2019 ONCA 19 (CanLII), at para. 15." (Para 20)

"P.C. Storozuk’s description of the driver was also bereft of any detail – “Asian male, dark hair.” As defence counsel at trial (not Ms. Caterina) submitted, this could describe any Asian male. It may even have been an apt description of the men who were found hiding in the bushes near the crashed minivan. Importantly, this description was not relayed to the dispatcher by P.C. Storozuk as the events unfolded; it was recorded in his notebook after he had viewed the appellant’s OHIP card. The lack of any meaningful description of the driver seriously undermined P.C. Storozuk’s identification evidence. As this court noted in Gough, at para. 37, generic descriptions are of little assistance: see also R. v. Jack, 2013 ONCA 80 (CanLII), 294 C.C.C. (3d) 163, at para. 16; R. v. Ellis, 2008 ONCA 77 (CanLII), at paras. 5, 8." (Para 21)

" There was another need for caution on the part of the trial judge – this was a case of cross-racial identification: see R. v. McIntosh (1997), 1997 CanLII 3862 (ON CA), 35 O.R. (3d) 97 (C.A.), at p. 105, leave to appeal refused, [1997] S.C.C.A. No. 610; R. v. Richards (2004), 2004 CanLII 39047 (ON CA), 70 O.R. (3d) 737 (C.A.), at para. 32; and R. v. Mey, 2011 ONCA 288 (CanLII), 280 O.A.C. 319, at para. 35. The trial judge included this feature in his reference to the inherent frailties of identification evidence generally. However, he never really grappled with this feature in the context of this case. This was a serious issue, especially in light of P.C. Storozuk’s generic description. This was further compounded by the fact that three Asian men that were found hiding nearby, who along with the woman found with them, were presumably occupants of the minivan – a vehicle with seats for four.[2]" (Para 23)

"The frailties in P.C. Storozuk's fleeting observations of the driver were compounded by his reliance on the OHIP card." (Para 25)

The OHIP Photo Card

"Many years ago, this court held that it is dangerous and improper to present a potential identification witness with a single photograph of a suspect. The danger is that the witness may have the photo image stamped on his or her mind, rather than the face of the true perpetrator: see Rex. v. Goldhar; Rex v. Smokler (1941), 1941 CanLII 311 (ON CA), 76 C.C.C. 270 (Ont. C.A.), at p. 271. Presenting a single photograph is highly suggestible and contaminates the identification process in a manner that prejudices the accused person: see Rex. v. Smierciak (1946), 1946 CanLII 331 (ON CA), 87 C.C.C. 175 (Ont. C.A.), at p. 177. The holdings in these cases were recently endorsed by Rothstein J. in R. v. Araya, 2015 SCC 11 (CanLII), [2015] 1 S.C.R. 581, at para. 36, a case referenced by the trial judge in his reasons." (Para 27)

"In this case, P.C. Storozuk essentially “showed” himself a single photograph and concluded that the person in the photograph was the driver of the minivan. I do not criticize him for what he did. No doubt, it was sensible investigative work. However, it did not translate into reliable identification evidence." (Para 28)

"the Supreme Court of Canada’s endorsement of Goldhar and Smierciak in Araya came after this court’s decision in Li. This aspect of Araya (in para. 36) is considered dicta of the Supreme Court of Canada that is binding on this court, as it was on the trial judge: R. v. Henry, 2005 SCC 76 (CanLII), [2005] 3 S.C.R. 609, at paras. 53, 57; R. v. Prokofiew, 2010 ONCA 423 (CanLII), 100 O.R. (3d) 401, at paras. 18-21, aff'd without reference to this point, 2012 SCC 49 (CanLII), [2012] 2 S.C.R. 639; Canada (Attorney General) v. Bedford, 2012 ONCA 186 (CanLII), 109 O.R. (3d) 1, at para. 69, rev’d in part, but not on this point, 2013 SCC 72 (CanLII), [2013] 3 S.C.R. 1101." (Para 32)

Comparison to a traffic stop "is not helpful. The traffic stop scenario entails a process of simultaneous comparison between the person and the photograph. The officer and the driver will be in close proximity. Questions may be asked. Within legal limits, the length of the encounter is controlled by the officer. During a traffic stop, the driver will be anxious for the officer to accept the licence photograph as authentic." (Para 35)

"In this case, P.C. Storozuk did not have an opportunity to make a simultaneous comparison of the OHIP photo and driver. All he had was his memory of the driver from his fleeting glance, which he compared with the only photo ID that he found in the minivan. The circumstances in which this comparison was made was highly suggestible. The use of the OHIP photo could not bootstrap an irretrievably valueless attempt at identification." (Para 36)

Appeal allowed, acquittal substituted (Para 38)

R v Vey (SKQB)

[May 27/19] – Charter s.8 - Reasonable Expectation of Privacy in Private Communications Recorded by Third Party and Subsequently Provided to Police 2019 SKQB 135 [C.L. Dawson J.]

AUTHOR’S NOTE: In this decision, Justice Dawson provides a very useful review of the recent advances in the Supreme Court jurisprudence about reasonable expectation of privacy and s.8.  Importantly, this case shows how a private party (even a complainant) may use digital surveillance technology to record others, but the police cannot simply seize the evidence when it is presented to them without a warrant.  This flows naturally from the conclusion that the subject matter of the search/seizure is the communication or recorded act (not the medium of technology used) and that third parties cannot waive an accused's s.8 Charter-protected privacy interests with respect to the state.

Pertinent Facts & Overview

The accused were charged with conspiring to murder Brigitte Vey, the wife of the Accused Vey. (Para 1)

"The evidence before the court from Brigitte Vey is that she and Curtis Vey were the two people residing at their home. The home was located on a farm. On the date in question, Brigitte Vey went to work. Before leaving, she intentionally and surreptitiously hid a new black iPod within the dining table, in order to record her husband, including any conversation he may have with other people, and especially any potential conversations with any potential paramour. She hid the iPod such that Curtis Vey would not have been able to discover it. She had done this previously, with another pink mini iPod, and recorded Curtis Vey alone in their home on those occasions." (Para 82)

"Brigitte Vey testified that once she heard the recording and the conversation between Curtis Vey and Angela Nicholson, wherein they discussed killing their spouses, she played it for her son and her son called police. She went to the police station around 2:30 a.m. She testified she "handed the iPod over to police." When asked by Crown if she wanted to give the police the iPod, she said "I wanted them to listen to see if what they heard was what we heard." She testified further, "... they could listen to it, and ... they could take it". In cross-examination, she acknowledged it was not her intention to bring the recording to police at the time she began recording Curtis Vey. Brigitte Vey confirmed in crossexamination that when she went to the police station, Cst. Russell said "I'm going to have to take this [the iPod] from you. Going to be keeping this, until we get it, at a minimum, get a copy made."" (Para 120)

"Brigitte Vey also testified that it was her son who called the police, and what was conveyed to her by her son was that the police said come down and talk to us and bring the iPod. She confirmed that the police were told that she had put a recording device in the house, when she was not present, and captured a recording of a conversation between Curtis Vey and Angela Nicholson. She confirmed that police said for her to come to the police station and bring that recording with her." (Para 121)

"The Supreme Court of Canada, in R v Marakah, 2017 SCC 59 (CanLII) at para 11, [2017] 2 SCR 608 [Marakah] confirmed the inquiry articulated in Spencer and Cole, which must guide the reasonable expectation of privacy analysis:

11      In considering the totality of the circumstances four “lines of inquiry” (Cole, at para. 40) guide the court’s analysis:

1. What was the subject matter of the alleged search?

2. Did the claimant have a direct interest in the subject matter?

3. Did the claimant have a subjective expectation of privacy in the subject matter?

4. If so, was the claimant’s subjective expectation of privacy objectively reasonable?" (Para 72)

Standing to Challenge the Search

"Here, the subject matter of the search was not the black iPod itself. Correctly characterized, the subject matter of the search was Curtis Vey and Angela Nicholson’s conversation, recorded and stored on the iPod. What the police were really after was the actual conversation between these two people. Clearly the police were not after the physical device (to collect fingerprints on it, for example). Rather, the police sought to preserve and permit access to the recorded conversation the iPod contained. To focus on the property rights at issue, that is, on the parties’ interests in the iPod, neglects the important privacy rights in the conversation that are engaged. In Marakah at para 15, and Reeves at para 29, the Supreme Court identified that the subject matter must not be defined narrowly in terms of the physical space invaded, but rather by reference to the nature of the privacy interests potentially compromised by the state action." (Para 76)

"It is not unreasonable to infer that Angela Nicholson attended to the home of Curtis Vey, the man she was having an affair with (an affair he had denied to his wife), with the expectation that she and Curtis Vey would meet and talk in private. Curtis Vey had denied the existence of the affair to Brigitte Vey on previous occasions and according to the evidence of Brigitte Vey, he had gone to some lengths to deny and/or hide the affair." (Para 87)

"The Supreme Court in Edwards and in Marakah, have identified that a number of factors may assist in determining whether it was objectively reasonable to expect privacy in different circumstances. In Marakah, the Supreme Court identified the factors which are relevant include: (a) the place where the search occurred; (b) the private nature of the subject matter, i.e., whether the informational content of the electronically recorded conversation revealed details of the claimant's lifestyle or information of a biographic nature; and (c) control over the subject matter." (Para 91)

"The place of the search here was the data contained on Brigitte Vey’s iPod. It was not the iPod. It was the recording of the private conversation. In Reeves, the court indicated that privacy includes control over and access to and use of information. Here, the place was the iPod recording of a private conversation between Curtis Vey and Angela Nicholson which took place in Curtis Vey’s home; a private conversation which had been illegally surreptitiously recorded on the iPod." (Para 94)

"The private nature of the information must be considered with reference to the purpose of s. 8, which is to “to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state”: R v Plant,1993 CanLII 70 (SCC), [1993] 3 SCR 281 at 293. In considering the private nature of the information, the Supreme Court in Marakah stated:

32 In considering this factor, the focus is not on the actual contents of the messages the police have seized, but rather on the potential of a given electronic conversation to reveal personal or biographical information. For the purposes of s. 8 of the Charter, the conversation is an “opaque and sealed ‘bag of information;”: Patrick, at para. 32; see also Wong, at p. 50. What matters is whether, in the circumstances, a search of an electronic conversation may betray “information which tends to reveal intimate details of the lifestyle and personal choices of the individual” (Plant, at p. 293), such that the conversation’s participants have a reasonable expectation of privacy in its contents, whatever they may be: see Cole, at para. 47; Tessling, at paras. 25 and 27." (Para 95)

"It is difficult to think of a type of conversation or communication that is capable of promising more privacy than a private conversation between two people alone, occurring within the confines of one of the participant's personal residence, while no other person was present in the home. The private nature of the conversation (the subject matter) was extremely high." (Para 98)

"However, the risk that one of the participants could have disclosed the conversation to third parties does not change the analysis. To accept the risk that a co-conversationalist could have disclosed the conversation, is not to accept the risk of a different order, the risk that the state will intrude upon the conversation absent. Marakah stated clearly at para. 41:

41 The cases are clear: a person does not lose control of information for the purposes of s. 8 simply because another person possesses it or can access it. Even where “technological reality” (Cole, at para. 54) deprives an individual of exclusive control over his or her personal information, he or she may yet reasonably expect that information to remain safe from state scrutiny. Mr. Marakah shared information with Mr. Winchester; in doing so, he accepted the risk that Mr. Winchester might disclose this information to third parties. However, by accepting this risk, Mr. Marakah did not give up control over the information or his right to protection under s. 8.

42 The shared control aspect of this case is similar to that in Cole. Mr. Cole had pornography stored on his work computer. His employer, like Mr. Winchester in this case, could access the contents of the computer. Mr. Cole did not have exclusive control of the physical location searched (his work-issued laptop). Yet this Court held that Mr. Cole had a reasonable expectation of privacy in the subject matter of the search, i.e., the pornographic material stored on the computer: Cole, at paras. 51-58." (Para 103)

"The courts have said that the voluntary sharing of information, such as transmitting a text message, does not dissolve an individual’s reasonable expectation of privacy. It is clear that a private conversation within the confines of a person’s home, with no one else present, does not dissolve an expectation of privacy." (Para 104)

"Here, Brigitte Vey had no shared interest in the conversation. She was not party to the conversation. Brigitte Vey had no subjective expectation of privacy in the conversation. Brigitte Vey illegally recorded the conversation. At no point did Curtis Vey or Angela Nicholson voluntarily relinquish control over the conversation. They expected the conversation to remain private. They only transmitted it to each other. The action of Brigitte Vey in illegally recording the conversation does not negate the reasonableness of Curtis Vey’s expectation or privacy nor does it negate the reasonableness of Angela Nicholson’s expectation of privacy (Marakah at para 41). The reasonable expectation of privacy persists for both, as does control, despite the surreptitious recording." (Para 106)

"In Marakah, the court held that where two parties have a conversation that they expect to be private (in Marakah, the conversation was a text message conversation) each has standing to challenge an unlawful search as each had a reasonable expectation of privacy in the conversation. Here, the conversation was a face-to-face conversation." (Para 109)

"I conclude that Curtis Vey's subjective expectation that his private conversation with Angela Nicholson which took place in his own home, would remain private was objectively reasonable in the totality of the circumstances. Each of the three factors relevant to this inquiry — place, capacity to reveal personal information and control, support this conclusion." (Para 110)

"The Crown asserts that police did not violate Curtis Vey's or Angela Nicholson's rights because they did not "unreasonably intrude onto [either of] their reasonable expectation of privacy in the recorded conversation" (Crown brief para. 37). The Crown argues that the police were not involved in creating the recording. The police role, the Crown asserts, was limited to receiving the device into their custody, listening to the recording that Brigitte Vey had told them about, and electronically downloading and copying that recording. The Crown's position is that the device belonged to Brigitte Vey and she brought it to police and voluntarily handed it to Cst. Russell. The Crown argues that Cst. Russell took the alleged threat seriously and she listened to the recording and provided her notes to Cst. Wierzbicki. The Crown asserts that police then took time to review the recording, including downloading the recording and making copies for investigative purposes, including creating a transcript. The Crown argues that the police action, in accepting the evidence Brigitte Vey brought to them, was not unreasonable. In essence, the Crown argues there was no search or seizure. The Crown asserts that the police actions did not intrude into Curtis Vey's or Angela Nicholson's reasonable expectation of privacy or to the extent that they did, that intrusion was wholly reasonable and thus, there is no violation of the accused's s. 8 rights." (Para 116)

"The law is well established that there is a presumption that the taking of an item by the police without a warrant violates s. 8 of the Charter unless the claimant has no reasonable expectation of privacy in the item or has waived his Charter rights." (Para 117)

"The evidence does not support the Crown's position that Brigitte Vey voluntarily gave the iPod to the police. In fact, the Crown, in the agreed facts, admits that Cst. Russell seized the iPod." (Para 125)

"The Charter permits police to access shared places without a warrant, when they act on the consent of a party who has a privacy interest that is equal to and overlapping with the privacy interest of the other resident. A consent search or seizure is not a “search or seizure” within the meaning of the Charter (Reeves at para 18). But again, we must focus on the subject mater here. It is not the iPod itself. It is the conversation. Brigitte Vey owned the iPod. She had a privacy interest in the physical iPod." (Para 127)

"I cannot agree with that proposition — that Curtis Vey and Angela Nicholson had no reasonable expectation of privacy in the conversation by reason of Brigitte Vey's actions. Even if Brigitte Vey had a privacy interest in the conversation, the consent of Brigitte Vey does not nullify the reasonable expectation of privacy held by Curtis Vey or Angela Nicholson that each would otherwise have in their private conversation. Brigitte Vey surreptitiously and illegally recorded a conversation between Curtis Vey and Angela Nicholson....It cannot be said the risk of police accessing his conversation, without a warrant, is a risk that should be imposed." (Para 130)

"In Duarte, the Supreme Court of Canada concluded that the surreptitious electronic surveillance of a conversation by police, without a warrant, is a search and violates s. 8 of the Charter, even if one of the participants in the conversation had consented to the surveillance. The court in Duarte said further that recording of conversations must be viewed as a search and seizure in all circumstances save where all parties to the conversation have expressly consented. Here, police did not record, but they took the recording and accessed it." (Para 131)

""Also Reeves, the court said at para 42 and forward:

42      … In reaching this conclusion, the Court distinguished between the “tattletale” risk (the risk that someone will tell the police what you said) and the risk that someone will consent to the police making an electronic record of your words (p. 48).  The Court concluded that “[t]hese risks are of a different order of magnitude” – the tattletale risk is one that is reasonable to ask citizens to bear in a free and democratic society, whereas the surveillance risk is not (p. 48).

43  Similarly, while it is reasonable to ask citizens to bear the risk that a co-user of their shared computer may access their data on it, and even perhaps discuss this data with the police, it is not reasonable to ask them to bear the risk that the co-user could consent to the police taking this computer. In Marakah, this Court held that, when a claimant shares information with another person through a text message, he accepts the risk that this information may be disclosed to third parties. But that does not mean the claimant "give[s] up control over the information or his right to protection under s. 8" (para. 41)." (Para 133)

"Here, Brigitte Vey illegally recorded the private conversation of Curtis Vey and Angela Nicholson. In light of the deeply intimate nature of the information in the conversation, both Curtis Vey and Angela Nicholson’s subjective expectation of privacy was objectively reasonable. Brigitte Vey’s surreptitious actions and consent could not nullify either Curtis Vey and/or Angela Nicholson’s reasonable expectation of privacy in the conversation. Brigitte Vey’s consent, if obtained, does not equate to there being no search or seizure of the conversation." (Para 135)

"Brigitte Vey cannot waive Curtis Vey and/or Angela Nicholson’s Charter rights. The Crown’s argument in this respect would effectively permit a person, who is not party to a conversation, to illegally record it and to waive the privacy rights of the legitimate parties to the conversation. This is totally inconsistent with the jurisprudence and especially the Supreme Court’s decisions in Cole, Marakah and Reeves. In Cole, the court considered whether the first-party consent doctrine should be extended to third parties. The court rejected third party consent, indicating that this doctrine would be inconsistent with the court’s jurisprudence which requires consent to be “voluntarily given by the rights holder” and “based on sufficient information in his or her hands to make a meaningful choice” (Cole at paras 77-78 and Reeves at para 50). Brigitte Vey is not entitled to relinquish Curtis Vey or Angela Nicholson’s constitutional rights against search and seizure. Waiver by Brigitte Vey does not constitute waiver for Curtis Vey or Angela Nicholson. Allowing Brigitte Vey’s consent to waive Curtis Vey’s or Angela Nicholson’s rights is completely inconsistent with Canadian jurisprudence." (para 136)

Were the Exigent Circumstances?

"Here, there may have been exigent circumstances to seize the iPod, so as to preserve evidence. That seizure could be said to be justified because of exigent circumstances, for the preservation of evidence. But, the seizure of the iPod is distinct from searching the device and downloading the conversation. And again, one must focus on the subject matter of the search — the conversation. So the question is whether there were exigent circumstances in relation to the accessing and downloading of the conversation." (Para 143)

"It appears there was a definite decision by the police that there were no exigent, reasonably apprehended potential danger to Brigitte Vey and Jim Taylor. The police did not put surveillance on the accused persons until they effected the arrests, three days later." (Para 144)

"The search and seizure of the iPod recording violated both Curtis Vey's rights and Angela Nicholson's rights under s. 8 of the Charter. The conversation is presumptively inadmissible against Curtis Vey and presumptively inadmissible against Angela Nicholson's, subject to s. 24(2) of the Charter." (Para 147)

Section 24(2) Analysis

Seriousness of the Charter-infringing State Conduct

"Constable Wierzbicki and police should have known that a third party cannot waive the privacy rights of another party to a private conversation, which took place in the home of one of the conversation participants. Constable Wierzbicki was one of a task force of RCMP Major Crimes North. Major Crimes was a specialized unit involved in judicial authorizations and search warrants. Further, the iPod was sent to the Tech Crimes Unit in Regina. Both of these units were specialized units, and each should have been aware of the unique and heightened privacy interests of Curtis Vey and Angela Nicholson in the private, illegally recorded conversation." (Para 152)

"The Crown also argued that I must consider the seriousness of the state conduct, based on the law at the time of the breach. At the time of the breach, the Crown argues the Supreme Court had not decided Marakah or Reeves. This is true. But, the police knew, or should have known, that recording the private conversations of people, without their consent, was illegal, whether it was done by the police or by a private citizen. That law has not changed." (Para 153)

"The court, in Cole, held that a third party cannot validly consent to a search, or otherwise waive a constitutional protection, on behalf of another. The school board was legally entitled to inform the police of its discovery of contraband on the laptop The police, in Cole, were not entitled to search the laptop without a warrant. In Cole, the Supreme Court rejected third party consent. This was established law at the time police accessed the conversation here." (Para 154)

"The evidence cannot support a conclusion of good faith. The police recklessly disregarded both of the accused's rights. The specialized expertise of the Major Crimes Unit and Tech Crimes Unit, who made the decision to conduct a warrantless search and seizure of the conversation, make the conduct of police in respect of the s. 8 violation more serious." (Para 155)

Impact of the Breach on the Accused's Charter Protected Interests

"As indicated in Paterson at para 49, where a Charter-protected interest in privacy is at stake, as it is here, infringements arising from circumstances denoting a “high expectation of privacy” tend to favour exclusion of evidence, while, all other considerations being equal, infringements of lesser interests in privacy will not pull as strongly towards exclusion. Grant at para 78 stated: “… An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy … is more serious than one that does not.”" (Para 158)

"Here, Curtis Vey was in his own home, which was on a farm. He lived there alone with Brigitte Vey and she was at work on the date in question. Brigitte Vey surreptitiously recorded his conversation, by placing the iPod in a spot that he would not be able to see it. She purchased a new iPod to further disguise that she was illegally recording him. Curtis Vey would have had a high expectation of privacy about his private conversations within his own home." (Para 159)

"While the police were not the authors of the surreptitious recording, they accessed it and downloaded it, knowing it had been surreptitiously recorded, once it came into their possession. The state conduct had a serious impact on Curtis Vey's Charter-protected interest. It matters not that the information may reveal only certain activities, or that the activities revealed are criminal" (Spencer)." (Para 161)

"The degree to which this Charter infringement undermines the Charter-protected interests at stake here, is significant. Again, it is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search and seizure by accessing, downloading and transcribing of an illegally and surreptitiously obtained recording of a private conversation within the confines of a private home, given the extremely private nature of the information that the conversation might contain. The impact of the Charter-infringing conduct on Angela Nicholson's Charter-protected interest was significant and favours exclusion." (Para 163)


"It is clear that the jurisprudence identifies that it is important to not allow the third factor of society's interest in adjudicating a case on the merits to trump all other considerations, particularly where the impugned conduct was serious and worked a substantial impact on the accused's Charter rights (Paterson at para 56)." (Para 170)

"Having considered these factors separately and together, I am of the view that the evidence obtained as a result of the police accessing and downloading of the surreptitiously recorded private conversation on the iPod should be excluded as against Curtis Vey and Angela Nicholson, as its admission would bring the administration of justice into disrepute." (Para 173)