R. v. Cater (K.), 2014 NSCA 74

Judge:Saunders, Fichaud and Beveridge, JJ.A.
Court:Nova Scotia Court of Appeal
Case Date:August 13, 2014
Jurisdiction:Nova Scotia
Citations:2014 NSCA 74;(2014), 349 N.S.R.(2d) 225 (CA)
 
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R. v. Cater (K.) (2014), 349 N.S.R.(2d) 225 (CA);

    1101 A.P.R. 225

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Temp. Cite: [2014] N.S.R.(2d) TBEd. AU.013

Kyle Joseph Cater (appellant) v. Her Majesty the Queen (respondent)

(CAC 392039; 2014 NSCA 74)

Indexed As: R. v. Cater (K.)

Nova Scotia Court of Appeal

Saunders, Fichaud and Beveridge, JJ.A.

August 13, 2014.

Summary:

Following a massive police investigation of a criminal organization (Spryfield Mob) involved in drug and gun trafficking, the accused was charged with 11 offences respecting firearms and ammunition (possession, careless and unlawful storage) and 12 counts of trafficking in firearms by transferring. The primary evidence respecting the trafficking charges came from intercepted telephone conversations pursuant to a wiretap authorization naming the accused as a target.

The Nova Scotia Provincial Court, in a judgment reported (2012), 315 N.S.R.(2d) 61; 998 A.P.R. 61, convicted the accused of six of the firearms charges (possession and careless storage) and eight firearms trafficking charges. The accused appealed against conviction, principally arguing that the verdicts were unreasonable and unsupported by the evidence. The accused also appealed the following rulings by the trial judge: (1) that information respecting plea bargaining negotiations was privileged (308 N.S.R.(2d) 220; 976 A.P.R. 220); (2) that the accused's s. 11(b) Charter right to be tried within a reasonable time was not infringed (309 N.S.R.(2d) 129; 979 A.P.R. 129); (3) that the accused's s. 8 Charter right to be secure from an unreasonable search and seizure was not infringed by the granting of a wiretap authorization (309 N.S.R.(2d) 261; 979 A.P.R. 261); (4) the granting of summary judgment dismissing an application to stay the proceedings for an abuse of process and arbitrary detention (Charter, s. 9) (310 N.S.R.(2d) 171; 983 A.P.R. 171); (5) the dismissal of a Stinchcombe application for the disclosure of additional information from the Crown (311 N.S.R.(2d) 46; 985 A.P.R. 46); (6) the dismissal of an application to exclude evidence obtained from searching his cell phone as an unreasonable search and seizure (312 N.S.R.(2d) 242; 987 A.P.R. 242); (7) the dismissal of a Garofoli application respecting the wiretap authorization (313 N.S.R.(2d) 28; 990 A.P.R. 28); and (8) the admission of certain hearsay evidence (315 N.S.R.(2d) 46; 998 A.P.R. 46).

The Nova Scotia Court of Appeal dismissed the appeal.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - The accused and two others were charged with numerous firearms/weapons offences - The accused brought a Garofoli application respecting an authorization allowing police to intercept his and others' private communications - He argued that information supplied in the Affidavit and Information to Obtain, much of which came from confidential police sources, was unreliable - The trial judge dismissed the application - The accused's s. 8 Charter rights were not violated by the granting of the authorization - The supporting affidavit was extensive, detailed and comprehensive - It did not rely on boiler plate content and was not misleading - It was full and frank - The limitations of the source information were apparent on a reading of the affidavit and the affidavit set out the limitations of various investigative options, including the limitations inherent in the use of confidential sources - The affidavit did not overstate or misrepresent the sources' reliability - The two main confidential sources were not shown to be unreliable by an examination of the affidavit - The affidavit provided an ample basis for the authorizing justice to conclude that there were reasonable and probable grounds to believe that the accused was engaged in drug trafficking activities and that the interceptions could assist in the investigation of these activities - The Nova Scotia Court of Appeal affirmed that there was no violation of s. 8 as the accused failed to establish that there was no basis for issuing the authorization - See paragraphs 146 to 152.

Civil Rights - Topic 1373

Security of the person - Police surveillance - Interception of private communications - [See Civil Rights - Topic 1217 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1655.3 ].

Civil Rights - Topic 1655.3

Property - Search and seizure - Warrantless search and seizure - Cell phones - The accused was charged with numerous firearms/weapons offences - Much of the evidence against him came from authorized intercepted phone calls - When the accused was arrested, the police seized his cell phone and had a forensic analysis performed on it by the RCMP's Integrated Technological Crime Unit - No warrant was obtained - It was a phone with limited functions (not a smart phone) and was not protected by a password - The accused sought to exclude the cell phone evidence, arguing that his s. 8 Charter rights were violated - The trial judge held that the search of the cell phone by forensic analysis did not violate s. 8 - It was a search incidental to his arrest, delayed only by the "best practice standard" decision to have the information accessed by a forensic expert - The search was conducted in accordance with the key purposes for a search incidental to arrest: discovery and preservation of evidence for use in prosecuting the accused and prevention of the destruction of the evidence - The search was executed in a wholly reasonable manner, complying with the best practices for accessing the information - Alternatively, if the cell phone search violated s. 8, the court would not have excluded the evidence - The Charter breach was not serious, the search had only a modest impact on the accused's rights and exclusion would bring the administration of justice into disrepute - The Nova Scotia Court of Appeal affirmed the decision - See paragraphs 153 to 168.

Civil Rights - Topic 3128

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right of accused to obtain information or evidence - The accused, charged with numerous firearms/weapons offences, brought a Stinchcombe application for the disclosure of additional information from the Crown - He had a Garofoli application pending challenging an authorization which allowed police to intercept his private communications - He also applied to stay the proceedings for an abuse of process by police - He sought disclosure of, inter alia, all records of occasions when he was searched or stopped by the police and whether any undercover police officer or police agent ever attempted to buy any controlled substance from him - He also sought amplification of the contents of a "Profile Page" contained in the disclosure and further information regarding confidential sources who provided information respecting him in the Information to Obtain (ITO) for the wiretaps - The trial judge dismissed the application - There was no evidence that the accused's rights to make full answer and defence and to have a fair trial had been violated - Much of the evidence requested was irrelevant to the intended applications - Some information could potentially identify confidential sources - Further, he was not entitled to obtain answers to questions about the content of the ITO that he could only ask if leave was granted to do so - The Nova Scotia Court of Appeal agreed that the Crown met its disclosure obligations - See paragraphs 126 to 132.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to a just and fair trial - [See Civil Rights - Topic 3128 ].

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right of accused to make full answer and defence - [See Civil Rights - Topic 3128 ].

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - On January 15, 2009, the accused was charged with numerous firearms/weapons offences - He sought a stay of proceedings on the basis that his s. 11(b) Charter right to be tried within a reasonable time had been violated by a 38.5 month delay between the charge and the anticipated end of the trial - He initially elected trial by a Supreme Court judge alone - A preliminary inquiry was arranged - There were delays with disclosure - In September 2011, he re-elected to be tried in Provincial Court with the Crown's consent - The preliminary inquiry dates were converted to trial dates - The accused had to find new counsel twice - The first counsel withdrew due to a conflict and the second counsel was appointed a judge - The trial judge dismissed the application - There was no unreasonable delay occasioned by the Crown's actions or systemic problems - There were no institutional delays - There was delay in producing the wiretap disclosure - However, given the nature of the case and the fact that it emerged from a major investigation with numerous targets and the use of varied investigative techniques, the delay in providing disclosure was not unreasonable - Some of the accused's own choices led to adjournments of date-settings - There was no evidence that he suffered any significant prejudice or that his fair trial rights had been compromised by the delay - He had spent part of the time under strict bail conditions but made no effort to vary those conditions - The Nova Scotia Court of Appeal held that there was nothing "which would cause me to question the judge's factual conclusions or application of the law" - See paragraphs 121 to 125.

Civil Rights - Topic 3270

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - Evidence of prejudice and causes of delay - [See Civil Rights - Topic 3265 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1655.3 ].

Criminal Law - Topic 128

Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 3128 ].

Criminal Law - Topic 129

General principles - Rights of accused - Right to discovery or production - [See Civil Rights - Topic 3128 ].

Criminal Law - Topic 1123

Offences against public order - Weapons - General - What constitutes a weapon - The accused was found guilty of multiple counts of possession of firearms and trafficking in firearms - The accused appealed, arguing that the Crown had a "legal obligation" to produce evidence including "testing the firearms" in order to prove beyond a reasonable doubt that each firearm was a fully functioning gun - The Nova Scotia Court of Appeal stated that "It cannot be seriously suggested that it was incumbent upon the Crown to produce 'testing scores' or 'certificates' to 'prove' that these guns could be fired, in order to convict the appellant. The Crown is under no such obligation (or limitations) in marshalling its evidence and presenting its case. It is up to the trier of fact, based on the totality of the evidence, to determine if a gun is a firearm, as defined by s. 2 of the Criminal Code. The circumstances surrounding the transactions, the words used, and the conduct of the accused are obviously highly relevant. A judge is entitled to draw the inference that a gun is operable, and thus within the definition of 'firearm', provided sufficient evidence is presented to permit such a conclusion. Obviously, the conclusion must be based on evidence and not speculation or conjecture." - See paragraphs 45 to 46.

Criminal Law - Topic 1128

Offences against public order - Weapons - General - Transfer of weapons or ammunition without authority - The accused was found guilty of multiple counts of trafficking in weapons (Criminal Code, s. 99) by offering to transfer them to others - The Nova Scotia Court of Appeal stated that "Trafficking by offer is a conduct offence. The crime as defined by Parliament in s. 99 does not require that any consequence flow from the prohibited conduct. The crime is made out upon proof that the accused offered to traffic in a firearm and in doing so intended that his offer be taken to be a genuine offer by the recipient. Whether the offeror actually had the item in hand so as to be able to complete the transfer is irrelevant" - See paragraph 60.

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - [See Civil Rights - Topic 1655.3 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Civil Rights - Topic 3128 ].

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by the evidence - Following a massive police investigation of a criminal organization (Spryfield Mob) involved in drug and gun trafficking, the accused was charged with 11 offences respecting firearms and ammunition (possession, careless and unlawful storage) and 12 counts of trafficking in firearms - The primary evidence respecting the trafficking charges came from intercepted telephone conversations pursuant to a wiretap authorization naming the accused as a target - All of the firearms and ammunition were found in the home of the accused's father and step-mother - They pleaded guilty to weapons offences - The issue was whether the accused had joint or constructive possession - The trial judge convicted the accused of six of the firearms charges (possession and careless storage) and eight firearms trafficking charges - The accused appealed against conviction, principally arguing that the verdicts were unreasonable and unsupported by the evidence - The Nova Scotia Court of Appeal dismissed the appeal - The court stated that "I agree with the trial judge's assessment that the intercepts provided clear and convincing circumstantial evidence that [the accused] possessed the firearms and ammunition in question. The intercepts also provided direct evidence that the [accused] trafficked in firearms by offering to transfer them" - The father's guilty plea did not preclude a finding that the accused knew the location of the firearms and had some measure of control over them - There was ample evidence to support a finding of joint and constructive possession - The verdicts were reasonable and supported by the evidence - See paragraphs 26 to 75.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - The Nova Scotia Court of Appeal stated that "It is a well-established principle that, when considering the reasonableness of verdicts, an appellate court is entitled to treat an appellant's silence at trial as an indication that he could not provide an innocent explanation for his conduct" - See paragraph 75.

Criminal Law - Topic 5274.3

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Application for - Affidavit - Examination or cross-examination of deponent - The accused and two others were charged with numerous firearms/weapons offences - The accused brought a Garofoli application respecting an authorization allowing police to intercept his and others' private communications - He argued that information supplied in the Affidavit and Information to Obtain, much of which came from confidential police sources, was unreliable - The accused sought leave to cross-examine the deponent about whether the two confidential sources were reliable, whether "Named Persons" or targets in the affidavit were also confidential police sources and whether there were "material omissions" that might undermine the judicial authorization for the intercepts - The trial judge denied leave to cross-examine, finding that the proposed cross-examination would not assist in determining whether the authorization could have been granted - The Nova Scotia Court of Appeal held that the trial judge did not err in exercising her discretion to deny leave - See paragraphs 133 to 145.

Criminal Law - Topic 5274.5

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Application for - Evidence in support - [See Civil Rights - Topic 1217 ].

Criminal Law - Topic 5283.4

Evidence and witnesses - Interception of private communications - Authority for - Judicial review - Where Charter breach alleged - [See Civil Rights - Topic 1217 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - The accused and two others were charged with numerous firearms/weapons offences - Much of the evidence came from intercepted private communications - The accused challenged the admissibility of the statements made in the intercepted communications on the ground that they were inadmissible hearsay - The trial judge rejected the argument - All the declarations in the intercepts could be admitted on the basis that they met the requirements of reliability and necessity (the principled exception to the hearsay rule) - The defence failed to identify any evidence that raised "serious and real concerns" about the reliability of the intercepted declarations - Over three years had passed since the intercepts were recorded - There were concerns respecting the quality of the evidence that might be elicited from witnesses years after the events freshly captured on the intercepts - The speakers on the intercepts with the accused would all be subject to a Vetrovec instruction - The Nova Scotia Court of Appeal affirmed the trial judge's decision - See paragraphs 169 to 177.

Evidence - Topic 1553

Hearsay rule - Hearsay rule exceptions and exclusions - Statements against interest - What constitutes - Kyle Cater and two others were charged with numerous firearms/weapons offences - Much of the evidence came from intercepted private communications - Kyle Cater challenged the admissibility of the statements made in the intercepted communications - He argued that all the statements made on the intercepts were inadmissible hearsay - The trial judge rejected the argument - The admissions exception was a complete answer to the issue of the admissibility of Kyle Cater's statements on the intercepts - In an intercept-dependent case, a court's ability to accurately find and assess the facts was imperiled if an accused person could shelter his or her intercepted words behind the prohibition against hearsay - All an accused person would have to do was exercise his or her right to remain silent and not testify - It would create a "ridiculous result" if highly incriminating and lawfully obtained intercepted communications of an accused were off-limits as inadmissible hearsay - If an accused's lawfully intercepted wiretap statements were inadmissible hearsay then obtaining Part VI intercepts would be pointless, at least insofar as using them as evidence - The Nova Scotia Court of Appeal affirmed the trial judge's decision - See paragraphs 169 to 177.

Evidence - Topic 4107.1

Witnesses - Privilege - General - Public interest privilege - An accused intended to bring an application to stay the proceedings for abuse of process, bad faith or Crown misconduct - His counsel filed a pre-hearing brief which contained details about plea negotiations between the Crown and counsel for the accused and his two co-accused - The Crown opposed the disclosure of the plea negotiations to the court on the basis of plea negotiation privilege - The trial judge did not read the brief pending the court's ruling - The trial judge held that privilege applied - No details about the plea negotiations were to be disclosed to the court - Plea negotiations were subject to a class privilege referred to as public interest privilege - The policy rationale behind cloaking plea negotiations with privilege was rooted in the public interest in fostering frank and full discussions between counsel for the accused and the Crown - There was no evidence of prosecutorial misconduct, bad faith or improper motive that would justify setting aside the privilege - The Nova Scotia Court of Appeal agreed that details of the plea negotiations, which never led to a negotiated plea, were privileged and inadmissible - See paragraphs 111 to 120.

Evidence - Topic 7600

Competency of evidence - Evidence obtained through plea bargaining - General - [See Evidence - Topic 4107.1 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Civil Rights - Topic 1655.3 ].

Cases Noticed:

R. v. Izzard (T.A.) (2013), 332 N.S.R.(2d) 264; 1052 A.P.R. 264; 2013 NSCA 88, refd to. [para. 30].

R. v. Henderson (H.A.) (2012), 317 N.S.R.(2d) 164; 1003 A.P.R. 164; 2012 NSCA 53, refd to. [para. 31].

R. v. Bremner (B.J.) (2007), 260 N.S.R.(2d) 158; 831 A.P.R. 158; 2007 NSCA 114, refd to. [para. 33].

R. v. Wills (B.) (2014), 318 O.A.C. 99; 2014 ONCA 178, refd to. [para. 46].

R. v. Polley (S.D.) (2014), 347 N.S.R.(2d) 277; 1098 A.P.R. 277; 2014 NSCA 71, refd to. [para. 46].

R. v. Ralph (A.), [2011] O.T.C. Uned. 3558; 2011 ONSC 3558, affd. (2014), 313 O.A.C. 384; 2014 ONCA 3, leave to appeal denied [2014] S.C.C.A. No. 262, refd to. [para. 58].

R. v. Farhat (R.), [2011] O.T.C. Uned. 6494; 2011 ONSC 6494, refd to. [para. 58].

R. v. Murdock (K.P.) (2003), 173 O.A.C. 171 (C.A.), refd to. [para. 60].

R. v. Crain (R.N.) (2012), 385 Sask.R. 201; 536 W.A.C. 201; 2012 SKCA 8, refd to. [para. 60].

R. v. Sinclair (R.J.) (2006), 400 A.R. 281; 2006 ABQB 68, dist. [para. 68].

R. v. Hasselwander, [1993] 2 S.C.R. 398; 152 N.R. 247; 62 O.A.C. 285, refd to. [para. 69].

R. v. Sinclair (R.J.) (2005), 376 A.R. 91; 360 W.A.C. 91; 2005 ABCA 443, refd to. [para. 69].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 71].

R. v. Kinnear (R.) (2005), 199 O.A.C. 323 (C.A.), refd to. [para. 92].

R. v. McCune (M.B.) (1998), 116 B.C.A.C. 267; 190 W.A.C. 267; 131 C.C.C.(3d) 152 (C.A.), refd to. [para. 93].

R. v. Khawaja (M.M.) (2010), 271 O.A.C. 238; 2010 ONCA 862, refd to. [para. 93].

R. v. Saunders - see R. v. Rooke and De Vries.

R. v. Rooke and De Vries, [1990] 1 S.C.R. 1020; 108 N.R. 234, refd to. [para. 94].

R. v. Willis, 2007 ONCJ 605, refd to. [para. 94].

Ontario (Minister of Labour) v. Black & McDonald Ltd. et al. (2011), 278 O.A.C. 284; 2011 ONCA 440, refd to. [para. 95].

R. v. G.B. et al. (No. 2), [1990] 2 S.C.R. 30; 111 N.R. 31; 86 Sask.R. 111, refd to. [para. 97].

R. v. D.M.S. (2004), 224 N.S.R.(2d) 66; 708 A.P.R. 66; 2004 NSCA 65, refd to. [para. 98].

R. v. Robinson (W.D.) (2005), 232 N.S.R.(2d) 46; 737 A.P.R. 46; 2005 NSCA 65, refd to. [para. 98].

R. v. Nixon (O.) (2011), 417 N.R. 274; 502 A.R. 18; 517 W.A.C. 18; 2011 SCC 34, dist. [para. 114].

R. v. Hiscoe (J.S.) (2013), 328 N.S.R.(2d) 381; 1039 A.P.R. 381; 2013 NSCA 48, refd to. [para. 122].

R. v. Morin, [1992] 1 S.C.R. 771; 134 N.R. 321; 53 O.A.C. 241, refd to. [para. 123].

R. v. Anderson (T.) (2013), 423 Sask.R. 61; 588 W.A.C. 61; 2013 SKCA 92, refd to. [para. 127].

R. v. Mangat (K.), [2012] O.A.C. Uned. 343; 2012 ONCA 415, refd to. [para. 136].

R. v. Pires; R. v. Lising - see R. v. Lising (R.) et al.

R. v. Lising (R.) et al. (2005), 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 144].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1, refd to. [para. 147].

R. v. Araujo (A.) (2000), 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 148].

R. v. Fearon (K.) (2013), 302 O.A.C. 284; 296 C.C.C.(3d) 331; 2013 ONCA 106, refd to. [para. 162].

R. v. Vu (T.L.) (2013), 451 N.R. 199; 345 B.C.A.C. 155; 589 W.A.C. 155; 2013 SCC 60, refd to. [para. 165].

R. v. Côté (A.) (2011), 421 N.R. 112; 2011 SCC 46, refd to. [para. 167].

R. v. Cole (R.) et al. (2012), 436 N.R. 102; 297 O.A.C. 1; 2012 SCC 53, refd to. [para. 167].

R. v. Wright (J.T.) (2014), 458 N.R. 206; 2014 CMAC 4, refd to. [para. 167].

R. v. Mann (R.S.) (2014), 357 B.C.A.C. 87; 611 W.A.C. 87; 2014 BCCA 231, refd to. [para. 167].

R. v. Spencer (M.D.) (2014), 458 N.R. 249; 438 Sask.R. 230; 608 W.A.C. 230; 2014 SCC 43, refd to. [para. 167].

R. v. Couture (D.R.) (2007), 364 N.R. 1; 244 B.C.A.C. 1; 403 W.A.C. 1; 2007 SCC 28, refd to. [para. 170].

R. v. Shea (S.M.) et al. (2011), 309 N.S.R.(2d) 349; 979 A.P.R. 349; 2011 NSCA 107, leave to appeal refused (2012), 440 N.R. 385 (S.C.C.), refd to. [para. 170].

R. v. Cook (D.W.), [1997] 1 S.C.R. 1113; 210 N.R. 197; 188 N.B.R.(2d) 161; 480 A.P.R. 161, refd to. [para. 176].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 86(1), sect. 86(2)(a), sect. 86(3), sect. 92(1), sect. 92(2), sect. 92(3)(a), sect. 95(1), sect. 95(2)(a)(i) [para. 27]; sect. 99 [para. 55]; sect. 100(1)(b), sect. 100(2) [para. 43].

Counsel:

Elizabeth Cooper, for the appellant;

Timothy S. O'Leary, for the respondent.

This appeal was heard on June 10-11, 2014, at Halifax, N.S., before Saunders, Fichaud and Beveridge, JJ.A., of the Nova Scotia Court of Appeal.

On August 13, 2014, Saunders, J.A., delivered the following judgment for the Court of Appeal.

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