In a 73-page decision, Justice Catherine Dawson ruled Monday that an iPod recording wasn’t admissible during the retrial of Vey and Nicholson. With the recording excluded, neither the Crown nor the defence admitted evidence and the judge found the co-accused not guilty.
“The police conduct here was seriously troubling,” Dawson said in her written decision.
Suspecting her husband was having an affair, Brigitte Vey planted an iPod in her dining room table at her Wakaw home in July 2013. The device recorded her then-husband and Nicholson discussing their affair, but also ways their spouses could be killed.
Nicholson’s then-spouse was Jim Taylor.
After bringing the iPod to police, the RCMP obtained the recording without a warrant because Brigitte Vey offered it voluntarily, Const. Dereck Wierzbicki said during a voir dire hearing.
However, Dawson found Brigitte Vey wasn’t in a position to authorize or consent to police downloading the audio because she wasn’t a participant in the conversation.
“Wierzbicki and police should have known that a third party cannot waive the privacy rights of another party to a private conversation, which took place in the home of one of the conversation participants,” Dawson wrote.
The judge stated RCMP major crimes north and the tech crimes unit were specialized units and each should’ve known about the heightened privacy interests of Curtis Vey and Nicholson.
Following the recording’s seizure, police obtained warrants to search the Vey and Nicholson homes, along with production orders for their phone records. Police also seized computers and cell phones.
Curtis Vey and Nicholson were arrested and undercover officers were placed in their cells.
Dawson determined Vey and Nicholson had a “reasonable” and “subjective” expectation of privacy at the time they were recorded on the iPod. Brigitte Vey, the only other occupant of the home, was at work.
The judge characterized the private nature of the conversation as “extremely high,” describing the content as “highly secretive.”
“Brigitte Vey illegally recorded the conversation,” Dawson said.
Prosecutor Lori O’Connor said Monday that the Crown was reviewing the judge’s decision before deciding whether or not to proceed with an appeal.
In June 2016, Curtis Vey and Nicholson were convicted on two counts each of conspiracy to commit murder. They were sentenced to three years in prison.
After their lawyers appealed, Saskatchewan’s Court of Appeal overturned the decision and ordered a new trial.
Following Monday’s acquittals, Brigitte Vey told reporters she was “at peace that it’s finally over.”