R v Cuthill, 2016 ABQB 60

Court of Queen ’ s Bench of Alberta Citation: R v Cuthill, 2016 ABQB 60 Date: 20160128 Docket: 130130990Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Sheena Cuthill, Timothy Mark Rempel and Wilhelm Klassen Rempel Accused Restriction on Publication Trial information in Absence of Jury – See the Criminal Code , section 648(1). Information concerning this portion of the trial must not be published, broadcast, or transmitted in any manner. NOTE: This decision is available from the court file, and it may be published after the jury retires to consider its verdict.

Editorial Notice: The restriction on publication expired on April 22, 2016. _______________________________________________________ Reasons for Decision on Voir Dire of the Honourable Mr. Justice A.D. Macleod _______________________________________________________

[ 1 ] Sheena Cuthill, Timothy Rempel, and Will Rempel are jointly accused of kidnapping and murdering Ryan Lane on or about February 7, 2012. [ 2 ] Their trial is scheduled to proceed before a jury in Calgary, beginning March 14, 2016. [ 3 ] The issue on this voir dire is whether or not the Crown may introduce as evidence certain text messages sent between Tim Rempel and Sheena Cuthill while they were husband and wife. The Crown obtained the text messages from Telus Communications Company pursuant to production orders under what is now s. 487.014 of the Criminal Code , RSC 1985, c C-46.

The phone records relate to a number used by Sheena Cuthill. The orders were obtained in April 2012 and there is no issue with respect to those production orders. Background [ 4 ] Tim Rempel and Sheena Cuthill were married on October 23, 2011. At the time Ms. Cuthill had a three-year-old daughter, Jordan, from a previous relationship with Ryan Lane. [ 5 ] The couple decided that Mr. Rempel should adopt Jordan and, after being served with the documents, Mr.

Lane decided that he would like to be a part of Jordan’s life. [ 6 ] The Crown alleges that Sheena Cuthill and Tim Rempel perceived this as a threat to the latter’s adoption and between that time and February 7, 2012, they, along with Tim’s brother Wilhelm (Will), concocted and carried out a plot to kill Ryan Lane. [ 7 ] The first Family Court hearing took place in November 2011. Mr. Lane had his first visit with Jordan on February 6, 2012, two years after he had last seen her. [ 8 ] At 11:47 p.m. that same day, Mr.

Lane received a telephone call from a stranger who claimed to have information that would be beneficial in the legal proceeding relating to Jordan. The stranger asked to meet and told Mr. Lane to come alone. After telling his father, Mr. Lane left the family home on foot. Unbeknownst to him, his father followed in a vehicle. His father saw him get into a red pick-up truck with someone he did not recognize. He tried to follow the vehicle, but he could not keep up with the truck and was unable to reach his son on his cellphone. That was shortly after midnight on February 7, 2012.

Ryan Lane was neither seen nor heard from again. [ 9 ] The Calgary Police Service investigated Ryan Lane’s disappearance and discovered the following:

a) The phone call Ryan answered at 11:47 p.m. came from a payphone at a nearby Esso gas station.

b) CCTV footage from the Esso gas station showed a red GMC pick-up truck with wood in the back bed beside a red Jeep Cherokee. Police were able to obtain a partial plate from one of the vehicles.

c) A vehicle with Alberta plate BDC 0046 was a red Jeep Cherokee registered to Sheena Cuthill.

d) Will Rempel used a red 1998 GMC pick-up truck with Alberta plate SHE 612 owned by his father. Both vehicles were similar in make, model, and colour to the vehicles observed in the CCTV footage.

e) The red pick-up truck was power washed inside and out and sold in working condition to a wrecker by Will Rempel within days of Ryan’s disappearance.

f) Police found Ryan’s blood/DNA in unusual locations inside Sheena Cuthill’s Jeep and inside the red pick-up truck used by Will Rempel.

g) There is no evidence that Ryan Lane had previously been in either vehicle because he was a stranger to Tim and Will Rempel.

h) Police concluded that Will Rempel lied to them when he said he sold the truck to a stranger on the side of the road.

i) A computer at Will Rempel’s residence accessed Ryan’s Facebook page on November 18, 2011 and again on February 17, 2012. The account that accessed Ryan’s Facebook page on November 18 was registered to a user with the email address overkillwill@live.com. A user on the same computer conducted internet searches for “Ryan Lane missing” on February 14, 2012. Ryan’s Facebook page contained photos, but it did not list his phone number or address.

j) Phone records show that Sheena Cuthill spoke with Will Rempel on November 18, 2011. This was close in time to one of the Family Court dates.

k) In the early morning hours of February 7, 2012, Will Rempel’s phone connected to a cellular tower that serviced the gravel pit in Beiscker.

l) Police found Ryan’s class ring and part of his iPhone case alongside charred human remains in a burn barrel at the remote gravel pit in Beiseker on June 21, 2012 with the help of police dogs.

m) No DNA could be detected from the remains.

n) The Rempel brothers were familiar with the Beiseker backcountry.

o) The burn barrel was made with three large rings welded together. It takes two people to move the rings.

p) Tim Rempel is a welder by trade. [10] The Crown argues that the text messages are probative for three reasons. First, the messages show Sheena Cuthill and TimRempel abetting or encouraging one another to kidnap and murder Ryan Lane. Second, the messages are probative because theyfrequently refer to Will Rempel, demonstrating his involvement. Lastly, the Crown submits that the messages are probative because theydemonstrate animus between Sheena Cuthill and Ryan Lane and thus help to establish motive. [11] Defence counsel challenges the admissibility of the text messages as between Ms. Cuthill and Tim Rempel.

They argue thatthe messages are privileged under the Canada Evidence Act, RSC 1985, c C-5, s 4(3) and by virtue of the common law surroundingspousal communications. [12] In R v Couture, 2007 SCC 28, [2007] 2 SCR 517, the Supreme Court of Canada stated that this privilege gives a spouse theright to withhold evidence of the communications, but that the communications themselves are not privileged. The privilege belongs tothe spouse receiving the communication and can be waived by him or her (see also R v Meer, 2015 ABCA 141 at para 69, 600 AR 66).Counsel for Ms.

Cuthill argues that the policy behind the privilege is sound and that it should inform this Court’s

interpretation of PartVI of the Criminal Code, particularly section 189(6) which reads as follows: Any information obtained by an interception that, but for the interception, would have been privileged remains privileged andinadmissible as evidence without the consent of the person enjoying the privilege. [13]

Part VI of the Criminal Code deals with Invasion of Privacy.

Section 184 makes it illegal to wilfully intercept a privatecommunication subject to a number of exceptions. It is not suggested that the service provider here is guilty of an offence. Indeed, theservice provider in this case, Telus, was not represented in this application.

Part VI primarily targets agents of the state, as it is normallythe actions of peace officers or their agents that are at issue when the admissibility of evidence is challenged in criminal prosecutions. Inthis case, the Calgary Police Service acquired the record of text messages by means of a production order pursuant to the Code, ratherthan

Part VI. [14] In R v Jean (1979), 1979 ALTASCAD 89 , 15 AR 147, 46 CCC (2d) 176 (Alta CA), Moir J.A. adopted what heconsidered to be a sensible

interpretation of what is now section 189(6). He opined that the so-called “privileged information” isinformation that a person has a right not to reveal. If the information is intercepted under

Part VI of the Code, it is inadmissible byreason of the

section quoted above. Burrows J. adopted this position more recently in R v Lam, 2005 ABQB 33, 366 AR 67, where heconcluded at para 14 that: Contrary to the Crown’s submission in this case, in the context of s. 189(6), the s. 4(3) spousal privilege attaches to interceptedcommunications between spouses. Its recognition does not depend on the spouse claiming it. It exists unless it has been waived or lost.The authorized interception of the communication through a wiretap does not cause it to be lost. [15] Mr. Hepner also referred me to the definition of “intercept” in

section 183, which he argues is a broad one. The definition ofintercept reads as follows: intercept includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof [emphasis added]. The definition is expansive because it describes what the definition of intercept includes. Nevertheless, common sense indicates that theCourt ought not to stray from the plain ordinary meaning of the word intercept. One intercepts or an interception occurs when someonesteps between the sender and the recipient to acquire a message before or at the same time it is received. It is the investigative techniquethat comes between the sender and receiver of a message that

Part VI of the Code was meant to encompass: see R v Belcourt, 2015BCCA 126 at paras 45–46, 322 CCC (3d) 93. In my view, obtaining records of text messages that have been stored in the serviceprovider’s database does not constitute an interception within the meaning of

Part VI of the Criminal Code. [16] Defence counsel argued that Justice Abella’s judgment in R v Telus Communications Co, 2013 SCC 16, [2013] 2 SCR 3favours an expansive definition of “intercept.” But at issue in that case was whether or not

Part VI of the Criminal Code ought to applyto prospective communications, rather than communications that had already taken place and been stored in Telus’ database. Mr. Parkerfor the Crown argues that it is one thing to apply

Part VI to prospective communications, but that production orders are entirelyappropriate where the police seek to obtain records stored in the service provider’s database. I agree. [17] The British Columbia Court of Appeal recently dealt with this very issue in Belcourt, supra. In that case the issue was whetheror not existing text messages could be accessed by a production order or only under

Part VI of the Criminal Code, ss 183–196.1. TheCourt concluded that

Part VI of the Code did not apply where the police seek to obtain a stored electronic record of a text message after ithas been sent and received. At paragraphs 46–47, the Court reasoned: The distinctive feature of the police investigation discussed above is that they interject themselves in the communication process byusing an investigative technique that comes between the sender and receiver of a message. As I discuss below, and as Moldaver J.observes in his reasons in Telus, this is exactly the type of technique that

Part VI authorization was meant to encompass. Thisinvestigative technique, however, is different from the case where the police seek to obtain a stored electronic record of a text messageafter it has been sent or received. The detailed requirements found in

Part VI exists to address the fact that the evidence sought to be acquired by the police has not comeinto existence at the time that the judicial authorization for its acquisition is being sought: see R. v. Finlay (1985), (ONCA), 23 C.C.C. (3d) 48 (Ont. C.A.), at 63-64. Indeed, the constitutionality of

Part VI derives from the safeguards that are imposed by therole of the judge granting the authorization, which exist because of the danger that the interception of private communications couldeasily transform into a fishing expedition: Finlay 78; see also R. v. Araujo, 2000 SCC 65 , [2000] 2 S.C.R. 992 (S.C.C.) at para.29. Put simply, it is inherent in the nature of

Part VI authorization that the investigative technique to be utilized by the police isprospective, which requires a distinct form of judicial authorization in comparison to other search warrant provisions. In my view,applying

Part VI to evidence already in existence is a misapprehension of the form of authorization provided for in that

section of the

Code. [18] At paragraphs 50–51, the Court held: As I have said, the acquisition of stored, historical communications is not, and cannot be, prospective. As a result, it is outside the ambitof

Part VI of the Code to require that existing communications stored in electronic form be authorized under that section. In my view,requiring

Part VI authorization for acquisitions of evidence already in existence is inconsistent with the law of search and seizure inCanada. Belcourt’s submission, taken to its logical extension, would require the police to obtain

Part VI authorization for any acquisition ofprivate communication in any circumstance, regardless of how far in the past it had been made. In my opinion, a fair reading of JusticeAbella’s reasons does not support such an expansive proposition. As I indicated above, her analysis was carefully circumscribed to thequestion of the prospective acquisition of messages, which was, moreover, the principal issue before the Court. I agree entirely with the above passages from the British Columbia Court of Appeal. [19] Closer to home, I note with interest a decision of Justice E.C.

Wilson in R v Siggelkow, 2014 ABQB 101, 123 WCB (2d) 128.In that case the Court was dealing with stored emails rather than text messages, but I do not understand that to be a meaningfuldistinction. His reasons include the following: [94] As decades of experience have shown and what is made clear by the Telus decision, wiretap orders target the interception offuture or prospective communications. This is clearly implicated by the language found in various provisions of

Part VI of the Code eg s.185(1)(

e) requiring a description of the place at which the private communications “are proposed to be intercepted” and the manner ofinterception “proposed to be used”; s.186(4)(

e) setting the valid time period for execution at 60 days; s. 186(6) renewal authorizationsrequire particulars of prior interceptions and information learned therefrom. [95] Simply stated wiretap orders are not given to intercept private communications that have already taken place even if one of theparticipants may have recorded them. [96] As was bluntly stated in R v Giles 2007 BCSC 1147 , [2007] BCJ No. 2918 (QL) S.C. at paragraph 46: “The particular threat to privacy posed by interception of private communications is different from the threat posed by the seizure ofexisting communication [being 164 emails stored in accused’s Blackberry].

Section 183 should not apply to the latter.” [97] Secondly, interpreting

Part VI in the manner urged by the accused would create a conflict with s. 487(2.1) and (2.2), whichspecifically govern searches of computers and obtaining data contained in or available to a computer system. [98] As Parliament is not presumed to enact conflicting legislation, the only explanation must be that

Part VI has no application to thecircumstances involving the stored emails in the case at bar. And I so find. See also R v Bahr 2006 ABPC 360. [20] It is clear from the British Columbia Court of Appeal decision in Belcourt, supra, and this Court’s decision in Sigglekow,supra, that

Part VI of the Criminal Code has no application to the text messages under review. Accordingly, since no issue has beentaken with the production orders, the text messages obtained under those orders are admissible in evidence in the proceeding against allthree accused. While I agree with defence counsel that the inferences to be drawn from this evidence may not be as argued by theCrown, that is for the jury to decide. Nevertheless, they are relevant and admissible. Heard on the 7th day of December, 2015. Dated at the City of Calgary, Alberta this 28th day of January, 2016.

A.D. Macleod J.C.Q.B.A. Appearances: Mr. S. Parker, Q.C. and Mr. T. Buglas for the Crown Mr. A. Hepner, Q.C. and Ms. K. Sitar for the Accused, Sheena Cuthill Mr. A. Fay for the Accused, Timothy Rempel Mr. J. Lutz and Ms. A. Sanders for the Accused, Wilhelm Rempel