The recording, which the matter’s prosecutor described as “the crux of the Crown’s case,” contains a discussion between Vey and Nicholson in July 2013 in which the pair talked about killing their spouses.
During voir dire arguments on Tuesday in Saskatoon, Vey’s lawyer Aaron Fox said the pair had a “reasonable expectation of privacy” when they spoke at Vey’s home. At the time, they were secretly being recorded by Brigitte Vey, as she suspected her husband was cheating.
She heard the pair talk about killing her and Nicholson’s spouse, Jim Taylor.
The defence argued officers didn’t get “judicial authorization” to obtain the recording after Brigitte Vey brought it to police.
Such a breach, according to the defence, was a violation of Curtis Vey’s and Nicholson’s charter rights.
Since neither person knew about the recording device at the time, Fox and Nicholson’s lawyer, Ron Piche, argued the evidence should be excluded from trial.
In June 2016, a jury convicted the lovers of two counts each of conspiracy to commit murder. They were sentenced to three years in prison, but released while their appeal was heard.
Their conviction was overturned last year and a new trial was ordered.
While Brigitte Vey may have voluntarily taken the iPod to police, Piche said it was the officer who told her “we’re going to keep it.”
Crown prosecutor Lori O’Connor viewed matters differently – stating the recording was voluntarily offered up because Brigitte Vey chose to bring the iPod to the police detachment.
“Brigitte Vey is essentially a whistleblower here,” O’Connor said.
Even if the judge finds there was a charter breach, O’Connor said “society would be more appalled by excluding this evidence then it would be by including it.”
Court heard how based on the recording, officers sought search warrants for other items. The defence stated any evidence derived from the iPod recording should be excluded as well.
The judge reserved her decision. The trial is scheduled to begin on May 21 in Prince Albert.