COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nero, 2016 ONCA 160

DATE: 20160229

DOCKET: C59595 & C59631

Watt, Brown and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicola Nero and Martino Caputo

Appellants

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

Heard: June 29, 2015

On appeal from the convictions entered on September 8,
    2014 by Justice John B. McMahon of the Superior Court of Justice, sitting
    without a jury.

Watt J.A.:

[1]

Spring 2011 and Nicola Nero was on parole. Finishing up a penitentiary
    sentence of almost nine years in a halfway house down Niagara way. Allowed out
    on weekdays. Required to return on weeknights. Weekends, out and about.

[2]

Parole includes restrictions. Where you can go. What you can do. Who you
    can talk to and hang around with. No association with others convicted of
    crime. And for Nicola Nero, no cellphones.

[3]

But old habits are hard to break. Especially lucrative old habits. Like
    trafficking in cocaine. And keeping in touch with those like-minded. By
    cellphone and text message.

[4]

Police suspected Nicola Nero had returned to the life. They began an
    investigation. In Niagara Region. But soon, elsewhere, including York Region.

[5]

About a year later, the police investigation ended. Nero; his girlfriend
    or common-law spouse, Tawnya Fletcher; Martino Caputo; and some others were
    charged with several offences relating to unlawful traffic in cocaine.

[6]

Investigators relied on several different kinds of court orders to
    advance their investigation and gather evidence. Production orders. General
    warrants. Number recorder warrants. Authorizations to intercept private
    communications. And search warrants. The orders and warrants yielded a bumper
    crop of evidence. If admissible, the case against Nero and Caputo was
    overwhelming.

[7]

Nero and Caputo elected trial by judge and jury. Their counsel took aim
    at the orders, warrants and authorizations that enabled investigators to gather
    the evidence against them. But their attack failed. The judge rejected it,
    shortly after the argument had concluded.

[8]

Shortly before the jury was to be selected for trial, Nero and Caputo
    filed another motion. They asked the judge who had heard their motions (the
    motion judge) to recuse himself. The judges conduct, they alleged, raised a
    reasonable apprehension of bias.

[9]

Nero and Caputo did not pursue their recusal motion. Instead, they
    appeared on the same indictment in another jurisdiction before another judge.
    There, they re-elected trial by a judge of the Superior Court of Justice
    sitting without a jury. After pleading not guilty, they agreed to be found
    guilty and convicted on the basis of an Agreed Statement of Facts which
    established their guilt on each count of the indictment beyond a reasonable
    doubt.

[10]

On
    appeal, Nero and Caputo repeat the arguments advanced unsuccessfully before the
    motion judge. They reinvigorate their claim of a reasonable apprehension of
    bias. The reasons that follow explain why I would reject their reupholstered
    claims of legal error and reasonable apprehension of bias and dismiss their
    appeals.

THE BACKGROUND FACTS

[11]

The
    nature of the grounds of appeal advanced and the procedural course this
    prosecution followed in the court below render unnecessary any reference to the
    facts ultimately admitted when the convictions were recorded.

THE GROUNDS OF APPEAL

[12]

Nero
    advances three principal grounds of appeal. Caputo adopted Neros submissions
    on these grounds. I would paraphrase their arguments this way:

i.

the conduct of the motion judge during the course of the pre-trial
    applications for adjournments of the trial proceedings and exclusion of
    evidence gave rise to a reasonable apprehension of bias;

ii.

the motion judge erred in law in failing to find that the production
    orders, warrants and authorizations in accordance with which evidence was
    gathered were issued without jurisdiction; and,

iii.

the motion judge erred in concluding that Nero and 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 ITO in connection with the search warrant

The second principal ground is further divided into the
    particular productions orders, warrants and authorizations in issue.

Ground #1: Reasonable Apprehension of Bias

[13]

This
    ground of appeal relates to the conduct of the motion judge who heard the
    pre-trial applications to exclude evidence as well as motions to adjourn the
    trial in order to accommodate a change of counsel. This judge, the motion
    judge, was scheduled to preside at the jury trial which was to proceed shortly
    after completion of the pre-trial motions. Traversal of the proceedings to
    another jurisdiction resulted in their completion before a different judge.

The Background

[14]

The
    appellants and other co-accused appeared before the motion judge for what was
    scheduled to be three weeks of pre-trial motions. The principal application was
    to exclude evidence obtained under various production orders, warrants and
    authorizations issued and granted as the investigation progressed. The evidence
    obtained was central to the case for the Crown at trial.

[15]

The
    parties filed extensive written materials in support of their respective
    positions. Included among these materials were application records and written
    arguments. No witnesses testified.

[16]

After
    two full days of oral argument on these applications to exclude evidence,
    counsel returned a week later to make submissions about spousal communication
    privilege. At the conclusion of submissions about spousal communication
    privilege, the motion judge retired. Shortly thereafter, court resumed. The
    motion judge gave oral reasons dismissing the applications to exclude evidence.

[17]

The
    motion judge advised counsel that he would provide written reasons on the
    spousal communication privilege issue. An hour later, he sent those reasons
    electronically to counsel.

The Discharge
    of Counsel and Adjournment Requests

[18]

About
    eight weeks after pre-trial motions had concluded and about three months prior
    to the scheduled trial date, the appellants sought an adjournment until a yet
    unscheduled murder case had been concluded. The motion judge dismissed the
    application.

[19]

In
    a separate application, the co-accused, Tawnya Fletcher, sought an adjournment
    of the trial. Fletcher had discharged counsel who had represented her for two
    years, and retained another lawyer whose availability would have necessitated an
    eight to twelve-month adjournment. The motion judge dismissed the application
    for brief oral reasons which found the claim of reasonable apprehension of bias.
    The judge said:

Miss Fletcher asks for an adjournment of the trial from
    September 8 to the six weeks beginning December 1
st
, 2014. This
    would allow Miss Fletcher to be represented by Ms. Henein instead of Mr.
    Patterson. Miss Fletcher has given no reason for discharging Mr. Patterson. The
    adjournment would delay the trial substantially. Given my availability, the
    earliest I could see it going would be May of 2015, although September of 2015
    is the estimate given by the Regional Senior Judge who knows about how my
    commitments fit in with the other judges commitments and availability of
    space.

In any event, that does not even take into account the effect
    on the Crown. Again, no reason is given for changing counsel. Miss Fletcher was
    given her choice of counsel and exercised it. The trial [date] was chosen to
    accommodate the counsel that she chose, Mr. Patterson. If she wants to change
    her lawyer, she will have to find one who is available September 8
th
.

Given the circumstances of the case, as I understand them from
    the pre-trial motions, I conclude that this application for adjournment and
    this change of lawyers is simply a sham designed as a backup in case Mr. Neros
    adjournment request is dismissed. I conclude that they are [in] cahoots and
    that he is calling the shots.

So, not only is her application not sufficient or justified, it
    is not brought in good faith. For oral reasons the application for adjournment
    is dismissed.

The Recusal Motion

[20]

About
    two weeks before jury selection was scheduled to begin, several accused,
    including the appellants, brought an application asking the motion judge to
    recuse himself from presiding over the trial on the basis of a reasonable
    apprehension of bias. Written material was filed. But the application was not
    heard because the appellants, who were in custody, were not brought to the
    courthouse. The case was adjourned to the trial date.

The Resolution

[21]

Counsel
    did not proceed with the recusal motion.

[22]

On
    the scheduled trial date, the appellants appeared with counsel in another jurisdiction
    before another judge. There they resolved their alleged involvement and were
    sentenced to substantial terms of imprisonment in the penitentiary.

The Arguments
    on Appeal

[23]

The
    appellants readily accept the onus to establish a reasonable apprehension of
    bias. They acknowledge that they must overcome the presumption of judicial impartiality
    by pointing to the persuasive force of the specific circumstances of this case.
    They say, however, that the remarks made by the motion judge in dismissing
    Fletchers adjournment request after having rejected their own satisfies this
    test.

[24]

The
    appellants contend that the motion judges finding that Fletcher and the
    appellants, in particular, Nero, had colluded together was rank speculation
    unsupported by any evidence. Likewise, his conclusion that Nero was calling
    the shots. The appellants argue that these comments reflect an unjudicial
    state of mind and imbue the rulings on the pre-trial applications with an impermissible
    taint.

[25]

The
    respondent resists any claim that the proceedings before the motion judge were
    infected by any reasonable apprehension of bias. No such apprehension could
    arise from the sequence of arguments and rulings on the pretrial applications.
    Further, the finding of collusion between Fletcher and Nero was available on
    the evidence before the motion judge.

[26]

The
    respondent says that claims of judicial bias must be advanced as soon as
    reasonably possible after the events giving rise to the allegation occur. In
    this case, the recusal motion was scheduled two weeks before the trial was to
    begin, well after the dismissal of the adjournment requests which are said to
    give rise to it. What is more, the respondent continues, the application was
    never pursued, made but abandoned when the appellants decamped to resolve their
    case in another jurisdiction before another judge.

[27]

At
    all events, the respondent submits, neither the timing nor the manner in which
    the trial judge ruled on the motions to exclude evidence, nor his summary
    dismissal of Fletchers request for an adjournment, singly or in combination,
    can satisfy the high standard required to establish a reasonable apprehension
    of bias. The parties filed extensive written materials in advance of the oral
    arguments on the pre-trial motions. The trial judge gave reasons orally when
    they returned to argue the spousal communication privilege issue on which
    written submissions had also been filed.  Providing written reasons shortly
    after that argument affords no ground for a claim of reasonable apprehension of
    bias.

The Governing Principles

[28]

Several
    basic principles inform the determination of this ground of appeal.

[29]

First,
    the apprehension of bias must be reasonable, held by reasonable and
    right-minded persons applying themselves to the question and obtaining the
    required information about it. The test is what would an informed person,
    viewing the matter realistically and practically  and having thought the
    matter through  conclude:
Committee for Justice and Liberty v. National
    Energy Board
, [1978] 1 S.C.R. 369, at p. 394;
R. v. R.D.S.
,
    [1997] 3 S.C.R. 484, at para. 111;
Wewaykum Indian Band v. Canada
,
    2003 SCC 45, [2003] 2 S.C.R. 259, at para. 60.

[30]

Second,
    the standard refers to an apprehension of bias that rests on serious grounds in
    light of the strong presumption of judicial impartiality:
Committee for
    Justice and Liberty
, at p. 395;
Wewaykum
, at para. 76. The
    grounds for the apprehension must be substantial:
R.D.S.
, at para.
    112.

[31]

Third,
    as a necessary consequence of the presumption of judicial impartiality, the
    onus of demonstrating bias lies with the party who alleges its existence:
R.D.S.
,
    at para. 114. That party must prove bias on a balance of probabilities:
Marchand
    (Litigation Guardian of) v. Public General Hospital Society of Chatham
(2000), 51 O.R. (3d) 97 (C.A.), at para. 131

[32]

Fourth,
    the inquiry into a reasonable apprehension of bias is fact-specific. Said in
    another way, whether a reasonable apprehension of bias arises, all the more so
    whether it has been established, depends entirely on the circumstances of the
    case under consideration:
R.D.S.
, at para. 114.

[33]

Finally,
    at least as a general rule, allegations of bias or a reasonable apprehension of
    bias should be advanced as soon as it is reasonably possible to do so:
R.
    v. Curragh Inc.
, [1997] 1 S.C.R. 537, at para. 11.

The Principles
    Applied

[34]

As
    I will explain, I would reject this ground of appeal for several reasons.

[35]

First,
    the claim of reasonable apprehension of bias was initiated but never pursued.
    The motion judge was never confronted with the claim. He was not asked and did
    not rule upon it. The
lis
vanished, along with the appellants, when
    the allegations contained in the indictment were resolved before another judge
    in another jurisdiction.

[36]

Second,
    the claim was not brought as soon as reasonably possible after the
    circumstances said to give rise to it arose. The principal incident that
    underpins the claim is the trial judges statements rejecting Fletchers
    request for an adjournment. The recusal motion was brought three months later,
    on the eve of trial. To the extent that the appellants invoked the
    circumstances in which the trial judge ruled on the pre-trial motions to
    exclude evidence, the recusal motion was returnable five months later.

[37]

Third,
    the evidence relied upon in support of the claim falls well short of
    establishing the substantial grounds required to rebut the presumption of
    judicial impartiality on a balance of probabilities.

[38]

Without
    more, the submission that the manner in which the motion judge delivered his
    rulings on the applications to exclude evidence for constitutional infringement
    and to give effect to the claim of spousal communication privilege fails.
    Consider the context. An extensive application record. Lengthy written
    submissions. Two days of oral argument. An adjournment for a week. A further
    argument about spousal communication privilege. Then a ruling on the earlier motions.
    A decision not to call on the Crown for submissions on the spousal
    communication privilege issue followed shortly by brief written reasons.
    Scarcely the stuff of the substantial grounds required to rebut a strong
    presumption of judicial impartiality.

[39]

Nor
    do the comments of the motion judge in determining Fletchers adjournment
    application establish a basis to ground the claim. The trial date had been
    fixed, in part at least, to accommodate the schedule of counsel whom Fletcher
    purported to discharge after he had represented her for two years. Fletcher
    advanced no reasons for the discharge. As to Neros aptitude and practice of
    directing others, the record on the pre-trial applications provided ample
    support for such a conclusion.

Ground #2: The Production Orders

[40]

The
    appellants attack production orders granted on April 29 and August 29, 2011 by justices
    of the peace under s. 487.012 of the
Criminal Code of Canada
, R.S.C., 1985, c. C-46,
as it read at
    the time. To better understand the basis of this claim of error, it is
    necessary to sketch in some background about the circumstances in which the
    orders were granted.

The Background

[41]

In
    the spring of 2011, Niagara Regional Police Service (NRPS) began an
    investigation into Neros suspected involvement in large scale cocaine
    trafficking in Niagara Region. Over the ensuing months the investigation
    expanded. Other police forces became involved.

The Production Order of April 29,
    2011

[42]

On
    April 29, 2011 a justice of the peace granted a production order requiring two
    service providers to furnish records for four cellphones allegedly used by Nero
    but registered to other subscribers. The offence in respect of which the order
    was sought and granted was trafficking in cocaine in Niagara Region.

[43]

The
    information to obtain (the ITO), which provided the evidentiary foundation
    for the production order, was submitted by Det. Cst. Jay Howe of NRPS. The ITO
    listed the
dramatis personae
of the distribution scheme, including
    Nero and several others said to be associated with him and with whom he was
    alleged to be in contact.

[44]

In
    the ITO, Det. Cst. Howe identified several sources of information upon which he
    relied in seeking the production order. Among the sources were confidential
    informers (CIs), surveillance reports, intercepted private communications,
    subscriber checks in connection with certain telephones, and information
    obtained under previous production orders showing substantial traffic on phones
    registered to Neros mother, and his girlfriend.

[45]

Det.
    Cst. Howe had direct contact with only one of five CIs to whom he made
    reference in the ITO. Consistent with his obligation not to disclose an
    informers identity, or any information that could reveal his or her identity,
    Det. Cst. Howe described for each CI whether she or he had a criminal record,
    including offences of dishonesty, or was facing outstanding charges; any
    indicia of reliability; and the nature of the contact between the informer and
    his or her handler. The ITO developed in chronological order contact between
    various individuals including through use of the cellphones whose records were
    sought under the order.

[46]

Det.
    Cst. Howe was not cross-examined on the pre-trial motion.

The Production Order of August 29,
    2011

[47]

The
    second production order, granted on August 29, 2011, included a number recorder
    warrant under what was then s. 492.2(1) of the
Criminal Code
. By this
    time, the investigation had expanded beyond the borders of Niagara Region to
    other parts of the province, including York Region. The ITO was completed by Det.
    Cst. Les Titleman of York Regional Police Service (YRPS). The ITO for the
    order of April 29, 2011 was attached to Det. Cst. Titlemans ITO.

[48]

In
    his ITO, Det. Cst. Titleman included reference to several aspects of the
    investigation including the results of surveillance and information obtained under
    the prior production order and other judicially authorized investigative
    methods. The officer recorded his understanding of the
ex parte
nature
    of the application and of his obligation to provide full, fair and frank
    disclosure of relevant available information, but not to describe every step
    along the way. He was careful to distinguish between his beliefs and the actual
    language used by various individuals.

[49]

Det.
    Cst. Titleman identified the targets of his investigation. He included
    photographs, biographical details, places of residence, associations,
    involvement in drug trafficking, cellphone usage and the nature and extent of
    their involvement with Nero. He described the grounds for his belief that the
    records sought would afford evidence of the cocaine trafficking offence under
    investigation:

·

prior and existing association

·

prior and existing involvement in drug trafficking

·

counter-surveillance measures

·

the analysis of phone records

·

results of earlier investigations

[50]

In
    his ITO, Det. Cst. Titleman included information provided by a single
    informant. In a separate and undisclosed Appendix, the officer provided greater
    detail about the information provided and how and the extent to which it had
    been confirmed by other means. He concluded by explaining why he believed the
    documents or data he sought would afford evidence of cocaine trafficking by
    those alleged to be involved.

[51]

Det.
    Cst. Titleman was not cross-examined on the pre-trial motions.

The Ruling of the Motion Judge

[52]

The
    motion judge declined to find the production orders had been improvidently
    granted. He rejected the argument that evidence gathered under their auspices
    should be excluded for constitutional infringement.

[53]

The
    motion judge described the conditions precedent to the issuance of a production
    order under the former s. 487.012. He explained the standard of review he would
    apply. In connection with the order of April 29, 2011, the motion judge
    acknowledged that the ITO contained individual items of little evidentiary
    value. He recognized the prospect that the three CIs reporting second-hand
    information reduced to two the confidential sources of reliable first-hand
    information. He pointed out that the inclusion of investigative theory in the
    ITO was readily identifiable. Despite these deficiencies, the motion judge held
    that the ITO as a whole could satisfy the conditions precedent under the former
    enabling provision and thus evidence obtained under it was not excluded by constitutional
    infringement.

[54]

In
    connection with the production (and related number recorder) order of August
    29, 2011 the motion judge was satisfied that, read as a whole, the ITO provided
    ample evidence that Nero was involved in drug trafficking and that the records
    sought would provide evidence of his involvement.

The Arguments on Appeal

[55]

Nero
    acknowledges that he was both in continuous possession or control and the
    primary user of the cellphones in respect of which the production orders were
    sought. Nero further concedes that the motion judge recognized that some of the
    information provided by the CIs was second-hand. But what the motion judge
    failed to take into account, according to Nero, was that the failure of the
    informant to disclose the second-hand nature of this information amounted to a
    failure to make full, fair and frank disclosure of all material facts. This
    vitiated the order because it deprived the justice of information that was
    vital to a proper assessment of the reliability of the information provided by
    the CI.

[56]

Nero
    contends that the production orders preceding the order of April 29, 2011 yielded
    information about essentially innocuous activities and contacts that in no way
    confirmed any material aspect or core allegation made by any CI providing
    first-hand information. The bald assertions and conclusory statements were
    largely police theory and failed to satisfy the statutory conditions precedent
    for the order.

[57]

Nero
    says that the production order of August 29, 2011 also cannot stand. It relied
    on information obtained under the first order which ought not to have been
    granted. And the second ITO failed to establish a reasonably grounded belief
    that the records sought would afford evidence of cocaine trafficking. It too
    failed to point out the second-hand nature of the information supplied by the
    CIs. It was permeated with bald allegations and police theory, not facts that
    could support the findings necessary for a production order. In the absence of
    any evidence about the content of the relevant calls, there could be no finding
    that they would afford evidence of a crime.

[58]

The
    respondent sees it differently. The ITOs established a sound and ample
    evidentiary predicate to nourish the findings necessary to grant the orders.
    The core information came from three CIs of proven reliability, and a concerned
    member of the public without criminal antecedents or any personal benefits in
    play. Another CI was an admitted participant in the drug culture of Niagara
    Region and provided first-hand information about those involved in it. No
    information provided by any informant was proven incorrect. The interpersonal
    connections of which they spoke were confirmed by physical surveillance.

[59]

The
    respondent also points out that the appellants approach, a microscopic
    analysis of each morsel of information provided and its parsing in search of
    otherwise innocent explanations, is incompatible with the authorities and at
    odds with the standard of review mandated by
R. v. Garofoli
, [1990] 2
    S.C.R. 1421, and its offspring. In the end, the respondent says, there was
    sufficient reliable evidence that might reasonably be believed on the basis of
    which the issuing justice could have concluded that the conditions precedent
    had been established. And that is all that matters.

The Governing Principles

[60]

Several
    principles inform a decision on this ground of appeal. Some are statutory
    provisions, no longer in force, that define what must be established before a
    production order may be issued or a number recorder warrant granted. Others
    have to do with the standard and scope of review applicable when, as here, the
    orders are alleged to have been improvidently given.

Production Orders

[61]

Under
    former ss. 487.012(1) and (3) a justice or judge was authorized to make a
    production order if satisfied, on the basis of an
ex parte
application
    containing an information on oath in writing, that there were reasonable
    grounds to believe:

i.

that an offence against the
Criminal Code
or other federal
    statute had been or was suspected to have been committed;

ii.

the documents or data sought would afford evidence respecting the
    commission of the offence; and

iii.

the person who was subject to the order had possession or control of the
    documents or data.

[62]

The
    reasonably grounded belief in the commission of the offence to which
    requirement i. refers needed not be in respect of an offence known to have been
    committed. A reasonably grounded belief in a
suspected
offence was
    sufficient to satisfy this requirement.

Number Recorder Warrants

[63]

Former
    s. 492.2 authorized a justice to issue a number recorder warrant provided an
    information on oath in writing established the conditions precedent required by
    s. 492.2(1). The justice must have been satisfied that there were reasonable
    grounds to
suspect
that an offence under the
Criminal Code
or
    other federal statute had been or would be committed and that information that
    would assist in the investigation of the offence could be obtained through the
    use of a number recorder. The warrant could be valid for a period of not more
    than 60 days.

[64]

Unlike
    s. 487.012 relating to production orders, s. 492.2 required that the
    information support a reasonably grounded suspicion (as opposed to belief) of a
    prior or future offence.

The Standard and Scope of Review

[65]

A
    production order under former s. 487.012 and a number recorder warrant under
    former s. 492.2 authorize conduct by state authorities that amounts to a search
    or seizure and is thus subject to the reasonableness requirement imposed by s.
    8 of the
Canadian Charter of Rights and Freedoms
.

[66]

When
    evidence gathered under the aegis of these orders and warrants is tendered at
    trial, and objection is taken to its admission, the trial judge is required to
    decide whether the statutory preconditions to each enabling authority have been
    met:
R. v. Pires; R. v. Lising
, 2005 SCC 66, [2005] 3 S.C.R. 343, at
    para. 8;
R. v. Beauchamp
, 2015 ONCA 260, 326 C.C.C. (3d) 280, at para.
    84.

[67]

The
    evidentiary record for the reviewing judge to consider consists of the
    documents relating to the order or warrant, any additional evidence adduced at
    the hearing and the submissions of counsel:
Pires; Lising
, at para. 8;
Beauchamp
, at para. 85.

[68]

The
    review proceeds from a presumption of validity of the enabling warrant or
    order. The presumption is rebuttable:
Pires; Lising
, at para. 30;
Beauchamp
,
    at para. 85;
R. v. Ebanks
, 2009 ONCA 851, 249 C.C.C. (3d) 29, at para.
    21. The review requires a contextual analysis of the record, not a piecemeal
    dissection of individual items of evidence shorn of their context in a vain
    search for alternative exculpatory inferences:
Beauchamp
, at para. 85;
R. v. Sadikov
, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 87.

[69]

The
    principles governing review of production orders are those first articulated by
    Sopinka J. in
Garofoli
:
Canadian Broadcasting Corp. v. Manitoba
    (Attorney General)
, 2009 MBCA 122, 250 C.C.C. (3d) 61, at para. 31. There
    is no reason to apply a different standard to the review of number production
    warrants. The review is not a rehearing or a
de novo
hearing of the
    original application. Nor does it involve the reviewing judge substituting his
    or her views, or discretion, for those of the issuing justice.

[70]

The
    test or standard a reviewing judge is to apply is whether the ITOs contained
    sufficient reliable evidence that might reasonably be believed on the basis of
    which the authorizing justice
could
have concluded that the conditions
    precedent required to be established had been met:
Garofoli
, at p.
    1452;
R. v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 51,
    54;
Sadikov
, at para. 84;
Beauchamp
, at para. 87;
R. v.
    Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40.

[71]

Like
    the authorizing justice, the reviewing judge is entitled to draw reasonable
    inferences from the contents of the ITO. That an item of evidence in the ITO
    may support more than one inference, or even a contrary inference to one
    supportive of a condition precedent, is of no moment. The inquiry begins and
    ends with an assessment of whether the ITO contains reliable evidence that
    might reasonably be believed on the basis of which the warrant or order
could
have issued:
Morelli
, at para. 40;
Sadikov
, at para. 88.

[72]

Inaccuracies
    and omissions in the ITO are not, without more, fatal to the adequacy of the
    material to establish the necessary conditions precedent:
Garofoli
, at
    p. 1452;
Araujo
, at para. 54;
Pires; Lising
, at para. 30.

[73]

The
    standards required for production orders differed from those for number
    recorder warrants under the then applicable statutory provisions. The former
    required a reasonable belief, the latter only a reasonable suspicion about the
    commission of an offence. A standard of reasonable suspicion addresses the
    possibility of uncovering criminality, not a probability of doing so as is the
    case for a reasonable belief:
R. v. Chehil
, 2013 SCC 49, [2013] 3
    S.C.R. 220, at para. 32.

[74]

On
    appeal, we owe deference to the findings of fact made by the reviewing judge in
    his assessment of the record, as well as to his disposition of the s. 8
Charter
challenge. In the absence of an error of law, a misapprehension of material
    evidence or a failure to consider relevant evidence, we should not interfere:
Beauchamp
,
    at para. 89;
Ebanks
, at para. 22;
R. v. Grant
(1999), 132
    C.C.C. (3d) 531 (Ont. C.A.), at para. 18.

[75]

The
    fact that information in the ITO came from informants affords no basis upon
    which to set aside the production orders or number recorder warrant any more
    than if the enabling authority were a search warrant, general warrant or
    authorization to intercept private communications. It is well settled that
    hearsay statements of a CI can provide reasonable and probable grounds to
    justify a search:
Garofoli
, at pp. 1456-57.

[76]

A
    final point about information provided by CIs. As established in
R. v.
    Debot
, [1989] 2 S.C.R. 1140, at paras. 53, 63, it is not necessary for
    investigators to corroborate each exquisite detail of the information provided.
    The ITO, however, should describe what has been done to confirm the credibility
    of the source and the reliability of his or her information so that the issuing
    and reviewing justice can properly assess it.

The Principles Applied

[77]

As
    I will explain, I would not give effect to this ground of appeal in connection
    with either production order or the number recorder warrant.

The First Production Order

[78]

First,
    in sustaining the first production order, the motion judge acknowledged that the
    information three CIs had provided was second-hand, a circumstance that could
    not exclude the possibility of a single common source. The motion judge took
    this factor into account in his decision to uphold the production order.

[79]

Second,
    the non-disclosure in the ITO is not, without more, fatal to the validity of
    the order. As is explained below, viewed as a whole, the ITO contained
    sufficient reliable evidence that might reasonably be believed on the basis of
    which the order could have issued.

[80]

Third,
    the ITO contained information about Neros conduct and his involvement in the
    unlawful distribution of controlled substances in Niagara Region. The
    information was detailed and came from sources of established reliability
    intimately familiar with Neros activities, associations and habits.

[81]

Fourth,
    it is critical to bear in mind what must be established to obtain a production
    order and the nature of its subject-matter.

[82]

The
    ITO need not prove that a named individual has committed a specified offence.
    What is required is that the ITO establish a reasonably grounded
belief
either
    that an offence has been committed or that an offence is suspected to have been
    committed. Proof of the offence occurs at trial.

[83]

In
    a similar way, the ITO must afford a basis for a reasonably grounded belief
    that the documents sought  cellphone records of phones admittedly used by and
    under the control of Nero  will afford evidence
respecting
the
    commission of the offence. The records need not be conclusive proof of guilt.
    Self-evidently, cellphone records reveal contact with others, the frequency of
    that contact and, if they include tower information, where the contact
    occurred. This information is of evidentiary value in proof of preliminary as
    well as substantive crime, and thus will afford evidence respecting the
    commission of an offence.

[84]

Finally,
    the standard of review applied on appeal from findings made on a
Garofoli
application
    does not permit a microscopic re-examination of individual components of the
    ITO as the appellant urges. The motion judge was required to consider the ITO
    as a whole and to determine whether the ITO contained sufficient reliable
    evidence that might reasonably be believed on the basis of which the production
    order could have issued. An appeal from that finding is not
Garofoli
    nouveau
or
Garofoli redux
. Absent an error in the statement of
    the test, a misapprehension of relevant evidence or a misapplication of
    principle, an appellate court is disentitled to intervene. That is this case.

The Second Production Order

[85]

The
    ITO submitted to obtain the production order of August 29, 2011 included as an
    appendix the ITO on which the previous production order was based, as well as
    further surveillance of Neros activities. The telephone traffic linked Nero to
    other convicted traffickers and two members of the Hells Angels alleged to be
    involved in similar activity beyond Niagara Region.

[86]

For
    reasons similar to those rejecting the challenge to the production order of
    April 29, 2011, I would not give effect to the challenge to the later order.

[87]

First,
    the attack on the ITO filed in support of the second production order, like
    that advanced in connection with the first, urges the availability of competing
    exculpatory inferences from individual bits of information included in the ITO.
    But, as we saw earlier, this is not the proper approach. It is reminiscent of
    an approach that would subject individual items of circumstantial evidence to a
    standard of persuasion applicable only to the evidence as a whole. Such an
    approach is inimical to the true standard which asks whether the ITO contains
    sufficient reliable information, that might reasonably be believed on the basis
    of which the order could have been issued.

[88]

Second,
    the argument advanced here is essentially a do-over of the submissions made to
    and rejected by the motion judge. That decision, in the absence of the
    application of an improper standard, an error in principle or a misapprehension
    of relevant evidence, is to be accorded substantial deference on appellate
    review. This is not, as I have said,
Garofoli nouveau
or
Garofoli
    redux
. A review of the ITO supports the conclusion that it contained
    information on the basis of which the motion judge, applying
Garofoli
,
    could have concluded that there was sufficient reliable information, that could
    have reasonably been believed, on the basis of which the order could have
    issued.

[89]

Third,
    the adequacy of the evidentiary foundation cannot be separated from the nature
    of the subject-matter sought under the production order. What is being sought
    are historical records that disclose the fact, not the substance of previous communications.
    Who talked to whom. Who texted whom. During the period of the order. It is in
    this sense that the documents sought will afford evidence.

[90]

Given
    these findings, there is also no reason to disturb the motion judges finding
    that the information provided in support of the number recorder warrant met the
    requirement of reasonable suspicion about the commission of an offence.

Ground #3: The Validity of the Authorizations

[91]

The
    appellants repeat their challenge, first advanced before the motion judge, to
    two authorizations to intercept private communications. The authorizations were
    granted about a month apart under s. 186(1) of the
Criminal Code
. The
    second authorization was an expansion of the first.

[92]

To
    better understand the complaints advanced by the appellants, it is helpful to
    recall briefly the state of the investigation when the authorizations were
    sought and the information contained in the affidavits filed in support of the
    applications.

The Background

[93]

The
    original investigation had begun about a year earlier. Its focus was on cocaine
    trafficking in Niagara Region. Over time, other police forces became involved. The
    scope of the investigation expanded into York Region and elsewhere in and
    around the surrounding area.

[94]

Police
    had utilized several different investigative techniques and procedures as their
    investigation progressed. Some required judicial approval in advance, others
    not. Officers conducted physical surveillance, solicited or were provided with
    information from confidential human sources and pursued undercover
    investigations. They obtained and executed production orders, number recorder
    warrants and general warrants.

[95]

Much
    of the information gathered by investigators identified or confirmed contact
    between or among various targets of the investigation. Historical and current
    telephone records established traffic among the principals and its frequency,
    but yielded nothing of substance about their discussions, activities, plans or
    roles. Number recorder warrants yielded more current information about
    telecommunications traffic, but disclosed nothing of its content and were
    incapable of recording certain types of messaging apparently used by the targets.

[96]

About
    two weeks before the first authorization was granted, police executed a general
    warrant at a storage facility or warehouse frequented by and leased to some of
    the targets. There, police seized 110 kg of cocaine. The premises were owned by
    the family of Tawnya Fletcher, the common-law spouse or girlfriend of Nero. The
    persons arrested were in frequent contact with Nero and linked by information from
    CIs to his drug distribution network.

[97]

The
    authorizations the appellants challenge were but part of an omnibus order that
    also included consent authorizations, a number recorder warrant, a production
    order, two general warrants, a tracking warrant and an assistance order.

The Supportive Affidavit

[98]

The
    supportive affidavit of Det. Cst. Les Titleman, who also swore the ITO for the
    second production order and the number recorder warrant, contained nearly 600
    paragraphs and extended to about 150 pages. The affidavit included several
    appendices, among them, a document that furnished information, not disclosed to
    the appellants or their counsel, about the CIs who had provided information to
    investigators.

[99]

The
    affidavit identified the goals of the investigation including the gathering of
    clear and compelling evidence relating to domestic trafficking of cocaine and
    the laundering of proceeds of crime. Through interception of private
    communications, investigators sought to identify the participants and ascertain
    their roles in the unlawful agreement to traffic and the trafficking itself.

[100]

The affidavit
    divided the known targets of interception into two categories: principal known
    persons and other known persons. In respect of each, the affiant included a
    photograph and descriptions of the persons association with others in the same
    or different category, his or her prior convictions and any outstanding charges,
    and information learned in prior and related investigations of each.

[101]

The affidavit
    set out at length the basis upon which the affiant asserted the requirements of
    probable cause and investigative necessity were established. The affiant
    deposed that the requirement of investigative necessity had been satisfied on
    the basis that other investigative procedures had been tried and had failed or
    were unlikely to succeed in achieving their investigative objective. Among the
    specific methods described were: physical surveillance; confidential human
    sources; agents; tipsters; phone data; witnesses; forensic investigation; and
    undercover operations.

The Ruling of the Motion Judge

[102]

The motion judge
    upheld the omnibus orders of February 24 and March 26, 2012, which included the
    two authorizations to intercept private communications challenged here. He was
    of the view that the affidavits contained sufficient reliable evidence that
    might reasonably be believed on the basis of which the authorization judge
    could have concluded that the requirements of probable cause and investigative
    necessity had been met and thus granted the authorizations.

[103]

In respect of
    probable cause, the motion judge attached particular significance to the
    seizure of 110 kg of cocaine in a storage or warehouse facility owned by
    Fletchers family and leased in turn to the Alessio brothers and Nero. The
    connection described by the informants was confirmed by physical surveillance
    and, to some extent at least, by telecommunications traffic revealed in
    cellphone records.

[104]

On the
    requirement of investigative necessity, the motion judge pointed out that
    although less intrusive investigative techniques such as production orders,
    physical surveillance and informants established or confirmed links between or
    among the principals, these methods yielded no evidence of the substance of any
    discussions among them.

[105]

The motion judge
    considered the second authorization an expansion of the first, fully supported
    by the original affidavit material supplemented by what had been obtained by
    execution of the first authorization and through other investigative steps
    undertaken during its currency.

The Arguments on Appeal

[106]

The appellants
    recycle here the submissions made to but rejected by the motion judge. They
    submit that the affidavit material failed to provide sufficient reliable
    evidence that might reasonably be believed on the basis of which the
    authorizing judge could have concluded that either the probable cause or
    investigative necessity conditions precedent had been satisfied.

[107]

The appellants
    say that the finding of probable cause rested on conclusory information
    provided by CIs whose reliability was untestable and speculation from brief
    meetings or conversations among various targets, at least some of whom were related
    to one another. In combination, conclusory statements from unverifiable suspect
    sources and speculation from innocuous social intercourse among friends and
    relatives does not meet the
Garofoli
/
Araujo
standard.

[108]

According to
    the appellants, the case for investigative necessity as advanced in the
    affidavits fell far short of what is required. Investigators did not exhaust
    other avenues of investigation. They failed to execute a general warrant and a
    search warrant issued for Neros home before they sought and obtained the first
    authorization. They made limited use of undercover officers and confidential
    informants. The cellphone records on which they relied were largely historical.
    The affidavit offered no adequate explanation as to why traditional methods of
    investigation would not succeed in meeting their investigative objective or,
    for that matter, why those methods were not used.

[109]

The respondent
    characterizes the evidentiary foundation for the authorizations as
    overwhelming, especially after the seizure of 110 kg of cocaine in a storage
    facility controlled by those identified by CIs as Neros associates and owned
    by the family of Neros common-law wife or girlfriend. The credibility of the
    CIs and the reliability of the information they provided was confirmed, at
    least in a general way, by independent evidence.

[110]

The respondent
    begins with a reminder about the manner in which courts are to apply the
    standard of review described in
Garofoli
and confirmed in
Araujo
.
    Both the probable cause and investigative necessity requirements apply to the
    investigation as a whole, not to individual persons named as targets. We must
    interpret each requirement in a practical, commonsense way bearing in mind the
    nature of the investigation and the objectives of the investigators. We must
    also keep in mind that interception of private communications is
not
an investigative technique of last resort, but rather is established on
    evidence that reveals, practically speaking, no other reasonable alternative in
    the circumstances of the particular criminal inquiry. This is of particular
    significance when investigators seek to move up the hierarchy of a distribution
    network to gather evidence about the principals.

[111]

The respondent
    says that with the seizure of the 110 kg of cocaine from the storage facility
    or warehouse, there could not be any real issue concerning reasonable grounds
    to believe a listed preliminary or substantive crime involving importing,
    possession and trafficking cocaine was being committed. Nor could there be any
    contest that the interception of the appellants private communications would
    assist the investigation of those offences. The affidavit disclosed that Nero
    was a high-level cocaine trafficker who several informants reported was moving
    huge quantities of cocaine. On parole, he met and called other known drug
    dealers. He was clearly connected to those seen in the storage facility where
    the cocaine was located and with the family that owned the warehouse. He was
    one of the first persons to whom those who rented the storage facility went
    after the cocaine had been seized.

[112]

Further, the
    respondent contends, the affidavit established the investigative necessity
    requirement in s. 186(1)(b) of the
Criminal Code
. The affidavit
    included nearly three dozen paragraphs to explain the other investigative
    procedures that had been undertaken and to describe how each and all had failed
    to achieve the investigative objective of the project. Investigative necessity
    applies to the investigation as a whole, not to individual targets. It is not a
    procedure of last resort. Interceptions were necessary to gather evidence of
    the
content
of communications passing between surveillance-conscious,
    experienced and sophisticated criminals.

The Governing Principles

[113]

In earlier
    paragraphs of these reasons, more specifically in paragraphs 68-72 and 74-76, I
    have canvassed the general principles that govern the standard of review
    applicable under
Garofoli
and
Araujo
, as well as reviews of
    those decisions in appellate courts. It is unnecessary to retill that soil
    here. What is necessary, however, is an examination of the conditions precedent
    enacted by s. 186(1) and how the review mandated by
Garofoli
and
Araujo
applies to them.

[114]

Section 186(1)
    requires that two conditions precedent be met before the discretion to grant an
    authorization to intercept private communications may be granted by a judge of
    the superior court of criminal jurisdiction:

(a) that it would be in
    the best interests of the administration of justice to do so; and

(b) that other
    investigative procedures have been tried and have failed, other investigative
    procedures are unlikely to succeed or the urgency of the matter is such that it
    would be impractical to carry out the investigation of the offence using only
    other investigative procedures.

For discussion purposes, the condition described in s.
    186(1)(a) can be described as probable cause and that in s. 186(1)(b) as
    investigative necessity.

[115]

The probable
    cause requirement demands that the authorizing judge be satisfied by the supportive
    affidavit that there are reasonable and probable grounds to believe that:

i.

a specified crime, and offence as defined in s. 183(1) of the
Criminal
    Code
, has been or is being committed; and

ii.

the interception of the private communication sought will afford
    evidence of the, or an, offence for which authorization is sought:
Garofoli
,
    at p. 1451;
R. v. Duarte
, [1990] 1 S.C.R. 30, at p. 45;
R. v.
    Mahal
, 2012 ONCA 673, 292 C.C.C. (3d) 252, at paras. 68, 75;
Beauchamp
,
    at para. 91.

[116]

The probable
    cause requirement and the capacity of the contents of the supportive affidavit
    to satisfy it involve a commonsense approach that takes into account the nature
    of the subject-matter investigators seek to acquire: future communications, not
    yet in existence, perhaps not even in contemplation at the time the
    authorization is sought or granted. These communications may never take place.
    But if they do, the likelihood of anything said affording evidence of a listed
    offence is enhanced by their probable participation in that offence. It is in
    that sense that interception of what they say will afford evidence of the
    offences.

[117]

It is also
    important to keep in mind that the affidavit is required to establish a
reasonably
    grounded belief
in the commission of the offence and the collection of
    evidence about it, not proof beyond a reasonable doubt or a
prima facie
case of either.

[118]

Under s.
    186(1)(b), investigative necessity may be established where the affidavit
    demonstrates that other investigative procedures are unlikely to succeed.
    Interception of private communications is not an investigative tool of last
    resort. The second branch of investigative necessity is met where, practically
    speaking, there is no other reasonable alternative method of investigation, in
    the circumstances of the particular criminal inquiry:
Araujo
, at para.
    29;
Mahal
, at para. 41;
Beauchamp
, at para. 95.

[119]

Whether
    investigative necessity is established is informed by the investigative
    objectives pursued by the police:
Araujo
, at para. 43;
Beauchamp
,
    at para. 99.

[120]

The
    investigative necessity requirement of s. 186(1)(b) applies to the
    investigation as a whole, not to each individual target. The supportive
    affidavit need not demonstrate investigative necessity on an individual target
    basis:
Mahal
, at para. 42;
Beauchamp
, at paras. 100, 119.

[121]

Investigative
    necessity may also be established where the objective of investigators is to
    bring to ground the upper echelon of a drug distribution network far removed
    from the grunt work performed by the street trafficker:
Araujo
, at
    para. 43.

[122]

The requirement
    of investigative necessity may be met where it anticipates the vicissitudes of
    proof in a criminal trial. An investigative purpose or objective may then be to
    obtain evidence confirmatory of information provided by a source whose
    testimony is not available through no fault of or connivance by the authorities,
    or is subject to special scrutiny:
Beauchamp
, at para. 102.

The Principles Applied

[123]

As I will
    explain, I would reject this ground of appeal.

[124]

First, as stated
    previously, on review of decisions made on
Garofoli
applications, we
    begin from a standard of deference to findings of fact made by the
Garofoli
hearing judge. Absent a demonstrated misapprehension of the evidence, a failure
    to consider relevant evidence, a consideration of irrelevant evidence, an
    unreasonable finding or an error of law in the application of the governing
    principles, we are disentitled to interfere with the decision of the
Garofoli
hearing judge.

[125]

Second, the
    attack advanced here on the motion judges decision is nothing more, and
    certainly nothing less, than a thinly-veneered reprise of the arguments
    advanced and rejected on the
Garofoli
hearing. This represents an
    approach with some rough equivalence to that advanced in cases in which proof
    of guilt depends on circumstantial evidence. There, as here, each item of
    evidence is analyzed every which way to tease out neutral or benign inferences
    and rejected on account of their availability. But that is not the standard of
    measure we apply. It is the effect of the evidence taken as a whole that is to
    be subjected to the standard required, not each individual item. The whole is
    often greater than the sum of its individual parts.

[126]

Third, implicit
    in the argument the appellants advance is an assumption at odds with the
    standard set by
Garofoli
. On a
Garofoli
review, the standard
    is whether the information in the affidavit or ITO, considered as a whole,
    constitutes sufficient reliable evidence that might reasonably be believed on
    the basis of which the relevant search authority
could
have issued.
    The approach advanced here seems more directed to demonstrating that the search
    authority
should
not have been granted. But, as we have seen, that is
    not the test.

[127]

Fourth, the
    supportive affidavit provided an adequate evidentiary predicate to satisfy the
Garofoli
standard.

[128]

In terms of the
    probable cause requirement, the affidavit contained overwhelming evidence that
    a listed offence had been committed and was continuing. Police found 110 kg of
    cocaine in a storage facility controlled by persons with whom CIs linked Nero
    in cocaine trafficking. Physical surveillance confirmed their association
    immediately after discovery of the drugs. The warehouse was owned by the family
    of Neros common-law spouse or girlfriend.

[129]

The affidavit
    material disclosed cocaine trafficking on a large scale by a network of
    individuals who occupied different roles and performed different functions in
    the distribution scheme. As jurors are routinely instructed, participation in
    an offence may be established by direct or circumstantial evidence, including
    what suspected individuals do and what they say. It is a reasonable inference
    that interception of the private communications of the alleged participants in
    the trafficking operation would afford evidence of the nature and extent of
    their participation. The fact of communication was established by the cellphone
    records obtained under the production orders and the information yielded by
    execution of the digital number recorder warrant.

[130]

The same may be
    said of the capacity of the affidavit to satisfy the investigative necessity
    requirement of s. 186(1)(b).

[131]

The affidavit
    included a catalogue of other investigative techniques and procedures and explained
    their limitations in acquiring evidence to prove the essential elements of the
    offences listed in the authorizations. These methods could demonstrate contact
    among the targets, but shed little, if any, light on the nature of that
    contact. Acquisition of the content of discussions or communications was
    essential, but not forthcoming from other investigative procedures.

Ground #4: Unreasonable
    Execution of the General Warrant

[132]

This ground of
    appeal challenges the manner in which a general warrant was executed at the
    residence of Nero and Fletcher on March 30, 2012. The appellants do not
    challenge the issuance of the warrant or the terms contained in it. The
    supportive affidavit/ITO that supplied the evidentiary basis for issuance of
    the warrant is the same document on which the authorization of March 26, 2012
    was based.

The Background

The General Warrant

[133]

The general
    warrant for Covert Entry included in the Authorization to Intercept and Related
    Orders and Warrants contains the following terms:

11. IT IS ORDERED THAT,
    upon being satisfied that the requirements of s. 487.01 of the
Criminal
    Code
have been met, peace officers of the York Regional Police and or
    Niagara Regional Police Service, and any other peace officers acting under
    their authority or acting in good faith in aid thereof, are permitted, at any
    time day or night, subject to the terms and conditions outlined in paragraph 12
    of this Authorization, to repeatedly and surreptitiously enter into any place
    utilized by or resorted to, by a person listed in paragraph 3, or by any
    person, believed on reasonable grounds, to be involved with a person listed in
    paragraph 3, in the transfer of an item relevant to one of the offences listed
    in paragraph 1 of this Authorization, to do the following:

a. To search for
    items related to the investigation of the offences in paragraph 1. If an item
    related to the investigation of the offences in paragraph 1 is located within
    any place, investigators may examine the item, photograph or videotape the
    item, place an identifying mark on the item for future positive identification
    by investigators. In addition, investigators may seize some or all of the
    items.

b. To gain access to
    any computer(s), data storage media, telecommunication devices, Personal
    Digital Assistance (PDAs), Blackberrys, and/or mobile telephones located
    within the places that may be used to store information and search or seize any
    of these items for any stored information in relation to the offences listed in
    paragraph 1.

Execution of the General Warrant

[134]

On March 30,
    2012 police covertly entered the residence shared by Nero and Fletcher. They
    looked around the premises. They saw stacks of Canadian currency, a box for a
    Blackberry PGP device and two sticky notes. On the sticky notes were two email
    addresses and passwords. The officers photographed the notes. One email address
    included the word encryptoid, prompting one of the officers to think of
    encryption and make a note of his observation. The email address that
    included encryptoid meant nothing to the officer at the time he saw the note.

[135]

When officers
    executed a search warrant on the same premises on May 23, 2012, they seized the
    items they had seen two months earlier when they had entered the premises
    covertly under the general warrant.

The Arguments
    on Appeal

[136]

The appellants
    point out that the operative clause of the general warrant permitted police to
    search for various items related to the investigation of the offences listed
    in the order. But the evidence given by the police executing the warrant was
    that the sticky note and writing (maybe it means something, maybe it doesnt)
    belies any connection to the investigation. It follows, the appellants say,
    that the officers exceeded the mandate afforded by the warrant when they
    photographed the note. Unreasonable execution of the warrant offended s. 8 of
    the
Charter
and triggered a s. 24(2) analysis that the motion judge
    failed to perform.

[137]

The respondent
    says that when police covertly entered the Nero/Fletcher residence, they were
    aware that Nero was using a Blackberry to communicate with other alleged
    co-conspirators. The police were also aware that neither authorization
    permitted them to intercept those communications. They photographed the sticky
    notes and made a note of the email address because the term encryptoid made
    them think of encryption, a means of communication that might have been of
    relevance to their investigation.

[138]

The respondent
    adds that this challenge comes to naught in any event because the evidence was
    seized (including the devices) when the search warrant was executed on May 23,
    2012.

The Governing Principles

[139]

This ground of
    appeal focuses on the manner in which the general warrant was executed in a
    single respect: by photographing and noting email addresses on sticky notes
    found during a covert entry to the Nero/Fletcher residence.

[140]

The operative
    language in the warrant is the phrase related to the investigation. These are
    not technical terms or terms of art, rather ordinary words used in their
    ordinary sense. They posit a connection or relation between two things, in this
    case, the notation and the investigation. The connection need not be direct or
    incontrovertible.

The Principles Applied

[141]

I would not give
    effect to this ground of appeal. Photographing and noting the email addresses
    written on the sticky notes did not exceed what was authorized under the general
    warrant, and thus did not amount to an unreasonable search or seizure requiring
    a s. 24(2) analysis prior to admission. I will explain.

[142]

First, it was
    open to the motion judge to conclude that, considering the objective of the
    investigation as a whole and the stage to which it had progressed at the time
    of the covert entry, the substance of the note was related to the
    investigation of a listed offence.

[143]

Police were
    investigating what they believed to be a large-scale cocaine trafficking
    operation. The quantities of drugs involved were substantial. They had already
    seized a stash of 110 kg of cocaine from a storage facility linked to many of
    the principals. The individuals with whom they were dealing were experienced
    and surveillance-conscious. That these individuals were communicating with each
    other was at once self-evident and confirmed by surveillance and cellphone
    records.

[144]

The contents of
    the communications between or among those suspected of crime are essential to
    proof of guilt and demonstration of innocence. Investigators knew about Neros
    use of cellphones. They also knew that he used a Blackberry or similar device
    to communicate with others. Discovery of further email addresses provided an
    entrée to further sources of evidence.

[145]

Second, the terms
    related to refer to the investigation of listed offences. They impose no
    requirement that the information acquired  the email addresses  amount to or
    constitute admissible evidence of the commission of the offence.

[146]

Third, what is
    important on review of this determination is whether the conclusion drawn by
    the motion judge was reasonable. That another judge might have drawn a
    different conclusion in the circumstances is beside the point.

[147]

Finally, the
    challenge falls on barren ground because the evidence was obtained when a
    search warrant was executed at the Nero/Fletcher residence on May 23, 2012
    after their arrests.

Ground #5: The Blackberry Search

[148]

During a
    warranted search of the Nero/Fletcher residence on May 23, 2012 police found
    Neros Blackberry. Subsequently, they searched the Blackberry for information
    and data contained in it. Nero contends that the search was not authorized by a
    warrant, as it should have been. As a warrantless search, it was unreasonable.
    The information acquired should have been but was not the subject of analysis
    under s. 24(2) of the
Charter
.

The
    Background

The ITO

[149]

In the ITO, the
    informant described several methods of communication used by those involved in
    trafficking controlled substances. Multiple cellphones and other mobile
    communication devices are commonplace. A newer trend involves using PGP
    encryption in order to avoid interception. About two months prior to the
    execution of the general warrant, Nero was intercepted in communication with
    someone from Vancouver with whom he discussed communicating with new devices.

[150]

The informant in
    the ITO searched the internet but was unable to find any email servers that
    corresponded to the email address written on the sticky notes. The informant
    believed that the addresses were registered to encrypted devices, thus sought
    authorization to search computers and mobile communication devices found during
    the search for evidence stored in an electronic format on those devices.

The Search Warrant

[151]

The search
    warrant issued on May 22, 2012 authorized the police to search for a variety of
    electronic devices capable of analyzing, creating, displaying, converting or
    transmitting electronic or magnetic computer impulses or data. Among the mobile
    communication devices for which the police were authorized to search for included
    those known as a Blackberry, pager or text messaging device.

[152]

The search
    warrant also authorized police to search the devices for:

Any and all information
    and/or data, stored in the form of magnetic or electronic coding in computer
    media or media capable of being read by a computer or with the aid of computer
    related equipment. This media includes, but is not limited to: floppy
    diskettes, fixed hard disks, removable hard disk cartridges, tapes, CD-ROMS,
    laser disks and any other media which is capable of storing data.

The Search of
    the Blackberry

[153]

During execution
    of the search warrant on May 23, 2012 police seized several cellphones
    including two PGP devices. An investigator accessed one of the PGP devices
    using the password recorded on one of the sticky notes and found thousands of
    email messages. Over several weeks each individual message was photographed so
    that it could be preserved for later analysis.

The Arguments on Appeal

[154]

The appellants
    reiterate here a submission advanced by counsel for a co-accused before the
    motion judge that the search warrant did not authorize search of the Blackberry
    to retrieve information or data stored in electronic form. Further, the conduct
    of the search occurred several weeks after the appellants arrest, thus cannot
    be fairly be justified as a search incident to arrest. As the Supreme Court of
    Canada later explained in
R. v. Vu
, 2013 SCC 60, [2013] 3 S.C.R. 657,
    a separate warrant was required to permit a search of the contents of the
    Blackberry. The absence of such authority rendered the search warrantless, and
    thus unreasonable, and required a s. 24(2) analysis to determine whether any
    evidence obtained thereby should be excluded.

[155]

The respondent
    says that the ITO established a reasonably grounded belief that search of any
    cellphones or other electronic devices, including a Blackberry, would yield
    evidence relevant to establish the commission of the listed offences by
    persons, like Nero, named as targets in the authorizations. Further, the
    respondent continues, the warrant expressly authorized the search of the
    Blackberry to obtain the information stored in it.

[156]

The respondent
    submits that, even without the benefit of the decision in
Vu
, the
    ruling of the motion judge properly applied the principles and satisfied the
    requirements later mandated by
Vu
.

The Governing Principles

[157]

Computers and
    mobile communication devices such as Blackberry phones differ in important ways
    from the places and receptacles governed by the traditional search
    authorization framework. Searches of these devices engender privacy concerns
    that have no analogue, thus are not sufficiently addressed by that approach. We
    cannot assume that a justice who has authorized the search of a place has taken
    into account the privacy interests that might be compromised by the search of
    any computers or mobile communication devices that might be found within that
    place:
Vu
, at para. 2;
R. v. Fearon
, 2014 SCC 77, [2014] 3
    S.C.R. 621, at para. 51.

[158]

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:
Vu
, at paras. 3, 24.

[159]

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:
Vu
, at paras.
    3, 48.

The Principles Applied

[160]

Three reasons
    persuade me not to give effect to this ground of appeal.

[161]

First, the ITO
    contains sufficient information to establish a reasonably grounded belief that
    a search of any cellphone, Blackberry or similar device would contain evidence
    relevant to establish the commission of a listed offence.

[162]

In the ITO, the
    informant described the basis for his belief that Nero was using an encrypted
    device to communicate with others and that a search of that device would yield
    evidence of a conspiracy to traffic cocaine.

[163]

The information
    was derived from seizures made during a search at an alleged co-conspirators
    residence; intercepted telephone calls using guarded language, disclosing
    suspicion of interception and encouraging others to communicate by electronic
    messaging; the email addresses and passwords inscribed on the sticky notes and
    the likelihood of the registration of those addresses to encrypted mobile
    devices; and physical surveillance of activities by Nero consistent with text
    messaging or the use of PGP technology.

[164]

Second, the
    search warrant issued on May 22, 2012 and executed at the Nero/Fletcher
    residence specifically authorized police to search devices like the Blackberry
    police found at that residence. The warrant authorized a search for [a]ny and
    all information and/or data, stored in the form of magnetic or electronic coding.
    The police  were authorized to search for:

i.

cellular telephones and other mobile communication devices, including
    those known as a Blackberry; and

ii.

any and all electronic devices which are capable of analyzing, creating,
    displaying, converting or transmitting electronic or magnetic computer impulses
    or data.

[165]

Third, the
    search conducted after seizure did not exceed in nature or in scope what was
    authorized under the warrant.

Ground #6: Spousal Communication Privilege

[166]

The final ground
    of appeal invokes spousal communication privilege and its implications for
    certain interceptions made under the Part VI authorizations and the use of
    information obtained by interception to assist in establishing the conditions
    precedent for issuance of the search warrant on May 22, 2012.

The Background

The
    Nero/Fletcher Relationship

[167]

Before the
    motion judge, Nero took the position that at the relevant time, he and Fletcher
    were common-law spouses. Each filed an affidavit describing the nature of their
    relationship.

[168]

Nero explained
    that his parole conditions required him to spend Monday to Thursday evenings of
    each week at the halfway house in which he resided. He and Fletcher lived
    together on weekends in various hotels and spent weekday evenings together
    before he was required to return to the halfway house.

[169]

Each considered
    the other their common-law spouse beginning in early spring 2011. Each claimed
    to have begun residing with the other in August 2011. In fall 2011, they became
    engaged and purchased property together.

[170]

The trial Crown
    advised the motion judge that he wished to cross-examine Nero and Fletcher on
    their affidavits. The cross-examination did not take place, however, because
    the motion judge decided not to hear any submissions by the Crown on the
    spousal communication privilege issue.

[171]

In response to
    the spousal privilege claim, the trial Crown filed an affidavit from Neros
    parole officer. In his application for parole, Nero provided information that
    he was involved in a common-law relationship with another woman. He was given
    weekend passes to be out of custody, provided he was with this common-law
    spouse or at his mothers home. The parole officer was not told that this
    relationship had ended until July 2011.

[172]

In official
    documents, such as drivers licences and tax returns, Fletcher described herself
    as single and her place of residence as some place other than with Nero at the
    home on River Beach Drive. Neros documents described him as separated and
    living with his mother.

The Ruling of the Motion Judge

[173]

The motion judge
    found as a fact that Nero and Fletcher were not common-law spouses at any time
    material to their claim of spousal communication privilege. He further found
    that the exclusion of common-law spouses from the spousal communication
    privilege described in s. 4(3) of the
Canada Evidence Act
, R.S.C., 1985, c. C-5 (
CEA
),

offended s. 15 of the
Charter
,
    but was saved by s. 1. It followed that s. 4(3) barred neither the interception
    of private communications between Nero and Fletcher or use of those
    communications in the ITO filed to obtain the search warrant executed at the
    Nero/Fletcher residence.

The Arguments on Appeal

[174]

Nero submits
    that the motion judge erred in finding that he and Fletcher were not common-law
    spouses. They were in a committed relationship, had purchased property and
    lived together and were engaged to be married. Their relationship was of
    sufficient permanency and duration to make them common-law spouses.

[175]

Nero says that
    as common-law spouses, the spousal communication privilege applies because s.
    4(3) of the
CEA
violates s. 15 of the
Charter
and is not
    saved by s. 1. The remedy for this unconstitutionality is to extend the
    privilege to common-law spouses. This would render interception of their
    private communications a breach of s. 189(6) of the
Criminal Code
. It
    would follow, Nero continues, that the intercepted private communications would
    be inadmissible as evidence and could not be relied upon as part of the ITO in
    connection with the search warrant.

[176]

The respondent
    contends that Neros claim of spousal communication privilege fails both
    factually and legally.

[177]

The respondent
    begins with the submission that Nero and Fletcher were not common-law spouses
    when the interceptions were made. They began to cohabit only seven months
    before interception of their private communications began. While there is
    admittedly no universal definition of the period of cohabitation required to
    establish a common-law relationship, even the most generous definition would
    require a significantly longer period than seven months to qualify. Further,
    the relationship was shrouded in secrecy, belied by public documents and Neros
    own representations to parole authorities, and lacked the essential public
    acknowledgement and recognition required to constitute a common-law
    relationship.

[178]

The respondent
    adds that the claim also fails as a matter of law. Nero and Fletcher were not
    husband and wife for the purpose of the then provisions of s. 4 of the
CEA
.
    The spousal communication privilege of s. 4(3) does not apply to common-law
    spouses. Binding authority establishes that the failure of s. 4(3) to reach so
    far as common-law spouses is constitutionally valid. Besides, spousal
    communication privilege is testimonial only. Neither interception of these
    communications nor their use in the ITO was barred by the privilege.

The Governing Principles

[179]

Section 4(3) of
    the
CEA
is a statutory enactment of a common law class privilege. The
    subsection provides that no husband is compellable to disclose any
    communications made to him by his wife during their marriage, and no wife
    is compellable to disclose any communication made to her by her husband
    during their marriage.

[180]

Section 4(3)
CEA
consists of three elements:

i.

status (husband and wife);

ii.

subject-matter (a communication); and

iii.

timing (during their marriage).

[181]

Section 4 does
    not define husband or wife for the purposes of the section or more
    generally. As a general rule, however, courts have held that the former rules
    of spousal competency and the preservation of spousal communication privilege
    do not apply to common-law spouses: see e.g.
R. v. Martin
, 2009 SKCA
    37, 244 C.C.C. (3d) 206, at paras. 15-25.

[182]

In
R. v.
    Nguyen
, 2015 ONCA 278, 125 O.R. (3d) 321, leave to appeal refd, 2016
    CarswellOnt 473 (S.C.C.), this court considered, whether the then spousal
    incompetency rule extended to common-law spouses. At trial, the Crown had
    called the common-law spouses of two accused as witnesses for the prosecution.
    The evidence adduced also included what one accused told his common-law spouse
    in a conversation after the offence has been committed. The admissibility of
    this evidence was challenged as barred by spousal communication privilege.

[183]

Three points of
    significance to this case emerge from the decision in
Nguyen
.

[184]

First, the spousal
    incompetency rule, as it then existed, did not extend to common-law
    relationships. As a result, an accuseds common-law spouse was a competent and
    compellable witness for the Crown at the accuseds trial:
Nguyen
, at
    paras. 7, 158.

[185]

Second, the
    spousal communication privilege in s. 4(3) of the
CEA
does not extend
    to common-law spouses. As a result, a recipient spouse who testifies at trial
    cannot invoke the privilege to refuse to answer questions about communications
    passing between spouses during their common-law marriage:
Nguyen
, at paras.
    16-18.

[186]

Third, the
    spousal communication privilege is testimonial in nature. Properly invoked by
    the recipient spouse, it precludes the reception of communications during
    marriage as evidence in the proceedings. The information conveyed, however, is
    not itself privileged:
Nguyen
, at paras. 134-136;
R. v. Couture
,
    2007 SCC 28, [2007] 2 S.C.R. 517, at para. 41;
R. v. Siniscalchi
, 2010
    BCCA 354, 257 C.C.C. (3d) 329, at paras. 31-32.

[187]

Section 189(6)
    of the
Criminal Code
is in these terms:

Any information obtained
    by an interception that, but for the interception, would have been privileged
    remains privileged and inadmissible as evidence without the consent of the
    person enjoying the privilege.

[188]

Section 189(6)
    does not create a privilege, but rather preserves any existing privilege that
    attaches to information despite its interception. It logically follows that if
    the information obtained by interception is
not
privileged, s. 189(6)
    is not engaged and the information, if otherwise relevant, material and not
    barred by some other evidentiary rule, would be received for consideration by
    the trier of fact.

[189]

For the purposes
    of the spousal communication privilege, and despite pronouncements that the information
    itself is not privileged, s. 189(6) excludes as privileged any information the
    recipient husband or wife had a right not to disclose:
R. v. Jean
(1979), 46 C.C.C. (2d) 176 (Alta. S.C., AD), at p. 187, affd [1980] 1 S.C.R.
    400;
Lloyd et al. v. The Queen
, [1981] 2 S.C.R. 645, at pp. 650-51.

The Principles Applied

[190]

I would not give
    effect to this ground of appeal. My reasons are two-fold and brief.

[191]

First, it is at
    least open to serious question on the evidence before the motion judge whether
    during the period of authorized interceptions Nero and Fletcher were in a
bona
    fide
common-law spousal relationship. Any period of cohabitation was
    brief. The assertion of such a relationship lacked public acknowledgement and
    was contradicted by official documents the spouses created themselves.

[192]

Second, and more
    importantly, neither the spousal competency rule as it then existed, nor the
    spousal communication privilege, extends to common-law spouses. It follows 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.

Conclusion

[193]

For these
    reasons, I would dismiss the appeal.

Released: February 29, 2016 (DW)

David
    Watt J.A.

I
    agree David Brown J.A.

I
    agree L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v.
    Oswald, 2016 ONCA 147

DATE: 20160223

DOCKET: C57068

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ajala Oswald

Appellant

Kim Schofield and Melina Macchia, for the appellant

Michael Medeiros, for the respondent

Heard and released orally:  February 19, 2016

On appeal from the conviction entered by a jury, presided
    over by Justice Bielby of the Superior Court of Justice, dated March 20, 2013.

ENDORSEMENT

[1]

Following trial by judge and jury, the appellant was convicted of
    several robbery-related offences.  The issue at trial was identification.  The
    appellant appeals his convictions on the grounds that the trial judge erred by
    failing to provide any instruction to the jury on the frailties inherent in
    identification evidence and specifically present in this case.  Counsel submits
    that as the prosecutions case depended substantially upon the accuracy of the eyewitness
    identification of the appellant as one of the two perpetrators, the caution was
    mandatory.

[2]

The Crowns case consisted of identification evidence from the victim,
    powerful circumstantial evidence connecting the appellant to the robbery and an
    out-of-court statement recanted at trial made by a friend of the appellant
    indicating that the appellant had confessed to him.

[3]

The trial judge was not asked to give the jury any special caution in
    respect of the identification evidence.  No objection to the charge was made at
    the conclusion of the judges instructions.

[4]

The case law from this court is clear that not every case in which the
    Crown leads identification evidence as part of its case requires a caution.
    However, where the accuracy of the eyewitness evidence plays any substantial
    role in the Crowns case, the caution is mandatory.

[5]

We think it would have been better had the trial judge given the
    cautionary instruction in this case.  We repeat, however, that no request was
    made for the instruction and there is a strong argument to be made that the
    instruction, which would have carried with it an identification of the
    supporting evidence, would not have assisted the defence.

[6]

Even assuming the failure to give the instruction amounted to an error
    in law, we think this is a clear case for the application of curative proviso.
    The evidence was overwhelming.  First, the identification evidence itself was
    strong evidence.  Second, the circumstantial evidence, considered cumulatively
    in our view, was simply overwhelming on its own.  Consequently, the appeal is
    dismissed.

Doherty J.A.

E.A. Cronk J.A.

H.S.
    LaForme J.A.