R. v. Nero (N.) et al., (2016) 345 O.A.C. 282 (CA)

• Judge: Watt, D. Brown and Roberts, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 29, 2015
• Jurisdiction: Ontario
• Citations: (2016), 345 O.A.C. 282 (CA);2016 ONCA 160

R. v. Nero (N.) (2016), 345 O.A.C. 282 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. MR.001

Her Majesty the Queen (respondent) v. Nicola Nero and Martino Caputo (appellants)

(C59595; C59631; 2016 ONCA 160)

Indexed As: R. v. Nero (N.) et al.

Ontario Court of Appeal

Watt, D. Brown and Roberts, JJ.A.

February 29, 2016.

Summary:

The accused were convicted of trafficking in cocaine. They appealed their convictions, arguing that the conduct of the motions judge during the course of pre-trial proceedings gave rise to a reasonable apprehension of bias, the motions judge erred in failing to find that certain production orders, warrants and authorizations in accordance with which the evidence was gathered were issued without jurisdiction, and in concluding that the accused and his girlfriend were not common law spouses such that their intercepted private communications would have been inadmissible as evidence and could not have been relied upon as part of the Information to Obtain in connection with the search warrant.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 1609

Property - Search warrants - To search computers or cellphones - [See second Criminal Law - Topic 3045 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See first Criminal Law - Topic 3045 ].

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - The accused appealed their cocaine trafficking convictions, arguing the conduct of the motions judge during the course of pre-trial proceedings (i.e., applications to exclude evidence and motions to adjourn the trial) gave rise to a reasonable apprehension of bias - The Ontario Court of Appeal reviewed the principles applicable in establishing a reasonable apprehension of bias and rejected this ground of appeal - The motions judge was not the trial judge as the matter was transferred to another jurisdiction for trial - The motions judge was never asked to rule on the bias issue - The claim was not brought as soon as reasonably possible after the circumstances said to give rise to the claim - The evidence fell well short of establishing the substantial grounds required to rebut the presumption of judicial impartiality on a balance of probabilities - See paragraphs 28 to 39.

Criminal Law - Topic 3019

Special powers - Third party production orders - Quashing of - The accused appealed their convictions for cocaine trafficking, arguing that a motions judge erred in failing to find that certain production orders were issued without jurisdiction - One production order required two service providers to furnish cell phone records and the other included a number recorder warrant - The Ontario Court of Appeal reviewed the governing principles and rejected this ground of appeal - The motions judge's decision was entitled to deference absent an error in the statement of the test, a misapprehension of relevant evidence or a misapplication of principle - See paragraphs 40 to 90.

Criminal Law - Topic 3045

Special powers - Search warrants - Scope of - The accused appealed their convictions for cocaine trafficking, alleging unreasonable execution of a general warrant executed at the residence of one of the accused - The warrant included authorization for covert entry of the residence - The accused claimed that the general warrant permitted police to search for various items "related to the investigation" of the offences listed in the order - However, the police in executing the warrant took a picture of sticky notes containing email addresses and passwords that the accused claimed belied any connection to the investigation - The Ontario Court of Appeal reviewed the governing principles and rejected this ground of appeal - Photographing and noting of the information on the sticky notes did not exceed what was authorized under the general warrant and therefore did not amount to an unreasonable search or seizure - See paragraphs 133 to 147.

Criminal Law - Topic 3045

Special powers - Search warrants - Scope of - The accused appealed their convictions for cocaine trafficking - They claimed that a search of a Blackberry cell phone during a warranted search of a residence was not authorized by the warrant and therefore warrantless and unreasonable - The Ontario Court of Appeal reviewed the governing principles and rejected this ground of appeal - The Information To Obtain contained sufficient information to establish a reasonably grounded belief that a search of any cell phone, Blackberry or similar device would contain evidence relevant to establish the commission of a listed offence - The search warrant authorized police to search for devices like the Blackberry police found at the residence - The search conducted after seizure did not exceed in nature or in scope what was authorized under the warrant - See paragraphs 148 to 165.

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - The Ontario Court of Appeal stated that "A computer search requires specific pre-authorization. What this means is that if police intend to search computers or mobile communication devices found within a place with respect to which they seek a warrant, they must satisfy the authorizing justice, by information on oath, that they have reasonable grounds to believe that any computer or other mobile communication device they discover will contain the things for which they are looking ... It follows from this requirement of pre-authorization that the ITO must contain sufficient information to permit the authorizing justice to find that there are reasonable grounds to believe that any computers or communications devices they discover on execution of the search will contain what they seek ..." - See paragraphs 158 and 159.

Criminal Law - Topic 5274.4

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Application for - Investigative necessity - The accused appealed their convictions for cocaine trafficking, arguing that a motions judge erred in failing to find that two authorizations to intercept private communications were made without jurisdiction - The Ontario Court of Appeal reviewed the governing principles, and in particular examined the conditions precedent enacted by s. 186(1) of the Criminal Code (i.e., probable cause and investigative necessity) and how the review mandated by Garofoli and Araujo applied to them - In the result, the court rejected this ground of appeal - The motions judge was entitled to deference - The attack on the motions judge's decision was nothing more than a reprise of arguments advanced and rejected on the Garofoli hearing - The supportive affidavit provided an adequate evidentiary predicate to satisfy the Garofoli requirement - Both the probable cause and investigative necessity requirements were met - See paragraphs 91 to 131.

Criminal Law - Topic 5274.5

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Application for - Evidence in support - [See Criminal Law - Topic 5274.4 ].

Criminal Law - Topic 5305

Evidence and witnesses - Admissibility of private communications - Inadmissible interceptions - Privileged communications - [See Evidence - Topic 5546 ].

Evidence - Topic 4184

Witnesses - Privilege - Husband and wife (incl. common law spouses) - Privileged communication - What constitutes - [See Evidence - Topic 5546 ].

Evidence - Topic 5546

Witnesses - Competency and compellability - Competency - Spouses (incl. common law spouses) - The accused (Nero and Caputo) appealed their cocaine trafficking convictions, arguing that a motions judge erred in concluding that the accused and his girlfriend (Fletcher) were not common law spouses and so their intercepted private communications should have been inadmissible as evidence and could not have been relied upon as part of the Information to Obtain in connection with the search warrant - The Ontario Court of Appeal dismissed the appeal - It was questionable whether during the period of authorized interceptions that Nero and Fletcher were in a bona fide common law relationship - Further, neither the spousal competency rule as it then existed, nor the spousal communication privilege, extended to common law spouses - It followed that Fletcher could not have asserted privilege if called as a witness, nor could s. 189(6) of the Criminal Code have barred the reception of the intercepted private communications if tendered as evidence by the Crown - See paragraphs 166 to 192.

Cases Noticed:

Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 29].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 29].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 29].

Marchand v. Public General Hospital Society of Chatham et al. (2001), 138 O.A.C. 201; 51 O.R.(3d) 97 (C.A.), refd to. [para. 31].

R. v. Curragh Inc. et al., [1997] 1 S.C.R. 537; 209 N.R. 252; 159 N.S.R.(2d) 1; 468 A.P.R. 1, refd to. [para. 33].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 59].

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 66].

R. v. Beauchamp (H.C.) et al. (2015), 333 O.A.C. 87; 326 C.C.C. (3d) 280; 2015 ONCA 260, refd to. [para. 66].

R. v. Ebanks (N.) (2009), 256 O.A.C. 222; 249 C.C.C.(3d) 29 (C.A.), refd to. [para. 68].

R. v. Sadikov (S.) et al. (2014), 314 O.A.C. 357; 305 C.C.C.(3d) 421; 2014 ONCA 72, refd to. [para. 68].

Canadian Broadcasting Corp. v. Manitoba (Attorney General) et al., [2010] 1 W.W.R. 389; 251 Man.R.(2d) 55; 478 W.A.C. 55; 250 C.C.C.(3d) 61; 2009 MBCA 122, refd to. [para. 69].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 70].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 70].

R. v. Chehil (M.S.), [2013] 3 S.C.R. 220; 448 N.R. 370; 335 N.S.R.(2d) 1; 1060 A.P.R. 1; 2013 SCC 49, refd to. [para. 73].

R. v. Grant (O.) (1999), 117 O.A.C. 345; 132 C.C.C.(3d) 531 (C.A.), refd to. [para. 74].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 76].

R. v. Vu (T.L.), [2013] 3 S.C.R. 657; 451 N.R. 199; 345 B.C.A.C. 155; 589 W.A.C. 155; 2013 SCC 60, refd to. [para. 154].

R. v. Martin (K.W.) (2009), 324 Sask.R. 132; 451 W.A.C. 132; 244 C.C.C.(3d) 206; 2009 SKCA 37, refd to. [para. 181].

R. v. Nguyen (B.Q.) et al. (2015), 333 O.A.C. 199; 125 O.R.(3d) 321; 2015 ONCA 278, refd to. [para. 182].

R. v. Couture (D.R.), [2007] 2 S.C.R. 517; 364 N.R. 1; 244 B.C.A.C. 1; 403 W.A.C. 1; 2007 SCC 28, refd to. [para. 186].

R. v. Siniscalchi (F.) (2010), 291 B.C.A.C. 14; 492 W.A.C. 14; 257 C.C.C.(3d) 329; 2010 BCCA 354, refd to. [para. 186].

R. v. Jean and Piesinger (1979), 15 A.R. 147; 46 C.C.C.(2d) 176 (C.A.), affd. [1980] 1 S.C.R. 400; 31 N.R. 410; 20 A.R. 360, refd to. [para. 189].

R. v. Lloyd and Lloyd, [1981] 2 S.C.R. 645; 39 N.R. 474; 64 C.C.C.(2d) 169, refd to. [para. 189].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, s. 186(1) [para. 114]; sect. 189(6) [para. 187].

Evidence Act, R.S.C. 1985, c. C-5, sect. 4(3) [para. 173].

Counsel:

Alan D. Gold and Melanie J. Webb, for the appellant, Nicola Nero;

Vincenzo Rondinelli, for the appellant, Martino Caputo;

Nick Devlin, Amber Pashuk and Jeremy Streeter, for the respondent.

This appeal was heard on June 29, 2015, before Watt, D. Brown and Roberts, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by Watt, J.A., on February 29, 2016.