Martino Caputo v. Her Majesty the Queen

(Ontario) (Criminal) (By Leave)




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Criminal law – Evidence – Admissibility – Private communications – Privileged communications – Spousal communications – Contention by one co-accused that intercepted communications with partner were protected by spousal communication privilege – Should spousal communication privilege be extended to include common-law spouses? – In the context of intercepted private communications between common-law spouses, and the applicability of s. 189(6) of the Criminal Code, are such intercepted communications between common-law spouses privileged? – Can intercepted communications between common-law spouses be used in furtherance of a criminal investigation against the spouses, and for specificity, in an ex parte application? – Is spousal communication privilege, in the context of intercepted private communication between spouses, testimonial only in nature? Canada Evidence Act, R.S.C., 1985, c. C-5 s. 4(3). Canada Evidence Act, s. 4(3).

A police investigation into suspected cocaine trafficking by the Applicant Mr. Nero resulted in several arrests. The investigation involved production orders, search warrants, and authorizations to intercept personal communications that yielded a substantial amount of evidence. The Applicants Mr. Nero and Mr. Caputo were tried together and initially elected a jury trial. Defence counsel's attack on the admissibility of the evidence obtained during the investigation was unsuccessful. Shortly before jury selection, the accused filed a motion for recusal on the basis of bias. The motion was not pursued. Instead, the accuseds appeared on the same indictment before another judge. They re-elected a trial by judge alone and pled guilty. The accuseds subsequently appealed on the basis the original judge was biased, erred in law in upholding the validity of the warrants and authorizations obtained during the investigation, and erred in failing to exclude intercepted communications between Mr. Nero and a woman, Ms. Tawnya Fletcher, he claimed was his common-law spouse.

Lower Court Rulings

March 25, 2014
Ontario Superior Court of Justice

1963/13, 2014 ONSC 1896
Application to exclude intercepted communications on other grounds, including marital privilege, having failed, communications admissible at trial.
February 29, 2016
Court of Appeal for Ontario

C59631, 2016 ONCA 160
Convictions of offences against, and conspiracy to commit offences against the Controlled Drugs and Substances Act entered before judge sitting without jury.