R. v. Savino (J.L.) et al., (2014) 311 Man.R.(2d) 296 (QB)

• Judge: Schulman, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: November 19, 2014
• Jurisdiction: Manitoba
• Citations: (2014), 311 Man.R.(2d) 296 (QB);2014 MBQB 221

R. v. Savino (J.L.) (2014), 311 Man.R.(2d) 296 (QB)

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. NO.026

Her Majesty The Queen v. Joseph Louis Savino and David Lee Anthony Buchholtz (accused)

(CR 13-01-32982; 2014 MBQB 221)

Indexed As: R. v. Savino (J.L.) et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Schulman, J.

November 19, 2014.

Summary:

The accused was charged with possession of methamphetamine for the purpose of trafficking, possession of a weapon for a dangerous purpose, possession of an unauthorized weapon without a licence, possession of property obtained by crime, and possession of a weapon while prohibited. A voir dire was held. At issue was (1) whether the contents of telephone calls received by police on a cell phone seized from the accused were admissible against him under the principled exception to the hearsay rule; (2) whether the search warrant under which the cell phone was searched should be set aside on the basis of fraud; and (3) whether the text messages recorded in the cell phone were admissible against the accused under the "documents in possession rule".

The Manitoba Court of Queen's Bench held that the cell phone conversations and text messages were admissible, and the search warrant was valid.

Criminal Law - Topic 3184

Special powers - Setting aside search warrants - Grounds - Falsehood, misleading statements or omissions in sworn information - Savino was charged with drug and weapons offences - In its information to obtain a warrant to search a cell phone that had been seized from Savino, police referred to the contents of three calls that it had received from the cell phone at 10:30 a.m., 11:54 a.m., and 12:09 p.m. - Savino argued that the search warrant should be set aside on the basis of fraud, because the police did not disclose two other calls that were received on the cell phone at 10:23 a.m. and 11:23 a.m. - The Manitoba Court of Queen's Bench held that the warrant was valid - The omission of the reference to two calls was not fraudulent, but a matter of gross neglect - The 10:23 a.m. call originated from the same number as the 10:30 a.m. call - The fact that the 10:23 a.m. call was not accounted for called into question the completeness of the 10:30 a.m. call - It was therefore appropriate to excise the reference to the 10:30 a.m. call in assessing the validity of the warrant - There was sufficient evidence contained in the 11:54 a.m. and 12:09 p.m. calls, together with other evidence found in Savino's vehicle, to support the issuance of the warrant - See paragraphs 15 to 21.

Criminal Law - Topic 5383

Evidence and witnesses - Documents and reports - Telephone records (incl. text messages) - Savino was charged with drug and weapons offences - The Crown sought to tender evidence of all incoming and outgoing text messages recorded on Savino's cell phone as original circumstantial evidence that was admissible for the non-hearsay purpose of proving Savino's knowledge of, or connection with, the transactions or matters to which the text messages related (i.e., the "documents in possession rule") - The Manitoba Court of Queen's Bench stated "I accept the Crown's argument as to the significance of text messages in society today. I find that the law relating [to] documents in possession are capable of applying to text messages and that the decision in Black [2014 B.C.C.A.] may come into play in this case. What use may be made of the evidence can only be assessed when the evidence has been completed after resumption of the trial." - See paragraphs 22 to 24.

Evidence - Topic 209

Inferences and weight of evidence - Inferences - Inference from possession - Of a document - [See Criminal Law - Topic 5383 ].

Evidence - Topic 1507

Hearsay rule - General principles and definitions - What constitutes hearsay - Implied assertions - Following a traffic stop, Savino was charged with drug and weapons offences - Police received five calls on a cell phone that was seized from Savino's vehicle - The Crown sought to tender evidence of the contents of three conversations from those calls under the principled exception to the hearsay rule, in order to prove the truth of the facts to be implied from them - The Manitoba Court of Queen's Bench held that the conversations were admissible - The first call was certainly drug-related, and when taken together with the two calls made later in the morning that were received on the same cell phone, which was found in Savino's bag along with four other cell phones, threshold reliability and necessity of the calls was established - This conclusion was reinforced by the fact that drugs and drug-related equipment were found in a different bag in the backseat of Savino's vehicle - See paragraphs 9 to 14.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - [See Evidence - Topic 1507 ].

Narcotic Control - Topic 2043

Search and seizure - Setting aside search warrants - Grounds - Information - Sufficiency of form and contents - [See Criminal Law - Topic 3184 ].

Cases Noticed:

R. v. Khelawon (R.) (2006), 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 10].

R. v. Baldree (C.) (2013), 445 N.R. 247; 306 O.A.C. 1; 2013 SCC 35, refd to. [para. 10].

R. v. Gerrior (W.A.) (2014), 348 N.S.R.(2d) 354; 1100 A.P.R. 354; 2014 NSCA 76, refd to. [para. 13].

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. 17].

R. v. Evans (E.D.) (2014), 306 Man.R.(2d) 9; 604 W.A.C. 9; 2014 MBCA 44, refd to. [para. 19].

R. v. Black (C.M.) (2014), 355 B.C.A.C. 277; 607 W.A.C. 277; 2014 BCCA 192, refd to. [para. 23].

Counsel:

Kirstin Elgert and Richard Smith, for the Crown;

R. Ian Histed, for the accused, J.L. Savino;

Saheel Zaman, for the accused, D.L.A. Buchholtz.

This voir dire was heard before Schulman, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on November 19, 2014.