Police handling of secret recording 'seriously troubling,' judge says
Published Tuesday, May 28, 2019 5:55PM CST Last Updated Tuesday, May 28, 2019 7:01PM CST
Police accessing an "illegal" iPod recording of Curtis Vey and Angela Nicholson allegedly planning to murder their spouses without a warrant was a violation of Section 8 of the Charter of Rights and Freedoms.
That was the opinion of Justice Catherine Dawson in her ruling that the recording was inadmissible in their retrial, which was set to begin Monday. Without the recording the Crown presented no evidence and Dawson found Vey and Nicholson not guilty.
“The police conduct here was seriously troubling. The police committed a serious breach of both accused’s (Section 8) right,” Dawson wrote.
“The effective destruction of the Crown’s case weighs heavily, but so does the warrantless search by police of a private conversation when police knew the conversation was illegally recorded.”
Vey and Nicholson were convicted of conspiring to commit murder in 2016. A key piece of evidence in that conviction was a secret iPod recording of the two talking about killing Vey’s wife in a house fire and Nicholson’s husband by drugging him and making him disappear. A retrial was ordered last August after an appeal judge found problems with jury instructions, partly with respect to Vey’s defence that he didn’t have a genuine intention to commit murder.
A tale of two iPods
The recording was made by Brigitte Vey who suspected Curtis Vey was having an affair.
Dawson's decision outlines how Brigitte Vey testified that in December 2012 she hid a pink mini iPod in her dining room. She recorded his activities, including making a phone call, and later confronted Curtis Vey with the recording.
Because Curtis Vey was now aware of the pink iPod, in June 2013, still suspecting an affair, Brigitte Vey testified she bought a new, black iPod using cash to keep the purchase secret.
Brigitte Vey told court she hid the iPod in her dining room table and recorded Curtis Vey when she wasn’t home, for 12 or 13 hours a day. On July 2 she heard a conversation between Curtis Vey and Nicholson in which she believed Curtis was talking about murdering Nicholson’s spouse, she testified.
According to an agreed statement of facts, on July 3 her son, Sean, contacted Warman RCMP reporting the conversation. Cst. Joanne Russell contacted Cst. Dereck Wierzbicki with the RCMP Major Crimes Unit, who directed Russell to seize the iPod.
When Brigitte Vey came to the station Russell seized the iPod, listened to the recording and took notes, and coordinated with Wierzbicki to have the recording downloaded by the Saskatchewan Technological Crimes Unit. The RCMP did not have a warrant to seize or search the iPod.
No urgent danger
Wierzbicki testified that he believed he did not need a warrant to remove the conversation from the iPod because Brigitte Vey had handed over the device of her own volition. He also believed the situation – a plan for two people to be murdered – was so urgent that a warrant was not needed.
But because the Major Crimes team did not put surveillance on Curtis Vey and Nicholson until July 6, it appears police decided there was no urgent danger to their spouses, Dawson wrote.
“The public interest in the principles governing the authority of the police, the presumptive unreasonableness of warrantless searches, and the high privacy interest attaching to private conversations, in a person’s residence and/or on a private place, are fundamental to our understanding of the proper relationship between citizens and the state."
Section 8 of the Charter of Rights and Freedoms provides the right to be secure against unreasonable search and seizure - and Dawson found that Curtis Vey and Nicholson had a reasonable expectation of privacy against state intrusion during their private conversation.
The issue wasn’t the seizure of the iPod itself but police accessing the recording. Brigitte Vey cannot waive Curtis Vey’s and Nicholson’s Charter rights, Dawson wrote.
“I cannot help but conclude that the admission of an illegally recorded private conversation, which occurred in a private home, and then was seized, accessed and downloaded by police through a warrantless search, would bring the administration of justice into disrepute.”