COURT FILE NO.: CR- 20-77-00 DATE: 2023 03 01

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Sam Weinstock, for the Federal Prosecution Service of Canada Respondent

– and –

Self-represented NICHOLAS POKU Applicant

SEBASTIAN ZAMORA Sean Robichaud and Jacob Roth, for the Defendant Zamora Applicant

HEARD: February 24, 27, 2023

RULING ON VOIR DIRE re ADMISSIBILITY OF ELECTRONIC RECORDS PROFFERED BY THE DEFENDANT ZAMORA

MANDHANE J.

INTRODUCTION

[1] This is my ruling on a voir dire to determine the admissibility of certain documents tendered by Sebastian Zamora during his counsel’s cross-examination of a Crown witness.

OVERVIEW

[2] On March 1, 2018, the two accused, Sebastian Zamora and Nicholas Poku, were arrested and charged. Zamora is charged with importing heroin contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and both Zamora and Poku are charged with possession of heroin for the purposes of trafficking contrary to s. 5(2) of the CDSA. We are in the middle of a judge-alone trial. The only issue is knowledge.

[3] To establish knowledge, the Crown relies on extractions from the cellular phones of Zamora, Poku, and a third individual, Chukwuemka Madumelu (“Cellular Phone Extractions”). These Cellular Phone Extractions have already been entered as an exhibit at trial; all the parties agree that they are admissible but disagree about the purpose for which they can be used. The Crown has brought an application to admit the Cellular Phone Extractions for the truth of their contents and relies on the co-conspirator exception to the hearsay rule. Both accused concede that the Cellular Phone Extractions are relevant circumstantial evidence, but Zamora says that they should not be admitted for the truth of their contents.

[4] The Crown has just completed its examination in chief of Officer Jennifer Oliveros, who testified about her role in the arrest of Madumelu and her seizure of his cellular phone. Mr. Roth, counsel for Zamora, has just began his cross-examination of Officer Oliveros. He seeks to admit through the witness messages that were allegedly exchanged between Zamora and another individual, “Richard Domont,” through the private messaging function available to users of the online classifieds website Kijiji.com (“Kijiji messages”), as well as three email attachments sent to Zamora’s private email address (“email attachments”). The Crown objects to the admissibility of the Kijiji messages and email attachments (together, “Electronic Documents”).

ISSUE

[5] Are the Electronic Documents admissible?

THE EVIDENCE ON THE VOIR DIRE

[6] I conducted a voir dire to determine the admissibility of the Electronic Documents. Mr. Roth called Officer Oliveros to testify on the voir dire and asked her about some her interactions with Zamora during his police interview on March 9, 2018 (some eight days after his arrest). A portion of the videotaped interview was made an exhibit on the voir dire.

[7] In the interview, Zamora provided Officer Oliveros with printouts of Electronic Documents. After reviewing them, Officer Oliveros provided Zamora with an RCMP cellular telephone, opened the web browser to Google, and asked him to bring up the Kijiji messages. She assured him that she would only look at what he was prepared to show her, and that they would delete the cookies so that they could not log into his account after the interview was over.

[8] Zamora first logged into his web-based email application, Microsoft Outlook. He explained that Kijiji sellers are immediately notified if a buyer responds to their ad via an automatically-generated email to their associated private email account (“email notifications”). By cross-referencing the Kijiji messages against the email notifications, Officer Oliveros admitted that she was effectively able to verify and “time stamp” the incoming Kijiji messages on the printout provided by Zamora. Her timestamps are handwritten on the printout that Zamora provided.

[9] While logged into his Outlook account, Zamora also showed Oliveros the email attachments that he received from “Richard Domont.” Oliveros admitted that she was able to verify that the emails were received from “DOMONDRICHARD@yahoo.com,” and that her notes indicate: “Last email was 12:51 pm “Core C” 6500 Silverdart Dr. w/ attachment.”

[10] Finally, Zamora also logged into his Kijiji account via the Kijiji website to show Oliveros the original Kijiji messages such that she was able to verify that the printout corresponded to the actual messages.

[11] The messages, with timestamps added by Officer Oliveros, read as follows:

February 28, 2018 11:02 p.m. Delivery Driver Available Hi, I’m interested. Please contact me i… Binian Kifle

February 28, 2018 11:50 p.m. Delivery Driver Available ok thanks, i will be sending you the re…. Kijiji User

March 1, 2018 9:33 a.m. Delivery Driver Available Kijiji User Hello would You be ale to do a pick up for me tomorrow or friday? Hey I got your email and I can do a pickup today, at some point this afternoon. Im going to need a pickup and drop off location for the delivery and if you have any questions call me at 905-392-6340

March 1, 2018 10:03 a.m. Delivery Driver Available Kijiji User ok thanks, the pickup will be at 6500 silverdart dr. and the dropoff will be in toronto. i would also need your name. the warehouse will need it for ID.here is my number if you need to call me 4379225277 Richard D On Thursday, March 1, 2018 9:53:05 AM EST, Kijiji User s-93xlksvv4bzpm@rts.kijiji.ca wrote: Ok Richard thanks. My name is Sebastian and will be there this afternoon Get Outlook for iOShttps://aka.ms/o0ukef

March 1, 2018 11:52 a.m. Hi Sebastian, i will attach to you some documents you may need and also a letter to authorize you for the pick up. i will also talk to Marie about a release paper, i think she mentioned something like that. On Thursday March 1, 2018 9:53:05 Delivery Driver Available Kijiji User Ok I’ll make sure i have it ready when i go for the pickup. Ill need details for the drop off location, just to let you know i charge per km, and based off where the pickup is you’re look at about $1.50 per km travelled Get Outlook for iOShttps://aka.ms/o0ukef

Delivery Driver Available Kijiji User hello, i will need you email address to send you the release letter. i will also want to know your charge. Thanks! Richard On Thursday, March 1, 2018 9:53:05 AM EST, Kijiji User s-93xlksvv4bzpm@rts.kijiji.ca wrote: My email address is sebzamora95@outlook.com and depending on the drop off location, a trip to toronto should cost about $25-$30 for the trip

March 1, 2018 12:45 p.m. ok thanks, i will be sending you the release letter to your email that you provided to me.and also the address. On Thursday, March 1, 2018 12:39:58 PM EST, Kijiji User s- 93xlksvv4bzpm@rts.kijiji.ca wrote:

[12] One of the email attachments is an unsigned, one-page document on “Livingston International Inc.” letterhead that reads as follows:

Date: March 1, 2018 ACI To Whom it May Concern: This is to advise regarding airwaybill # 214-79348312 Livingston International acting as agent for consignee : Richard Domond Please release freight to their appointed carrier: Hold for pickup: Sebastian / Richard Domond. Please comply with the above instructions. Your truly, Livingston International Julius Dela Cruz Air Traffic Department 905-676-3700 ext. 4124

[13] The second email attachment is a freight-related document that lists the Consignee as “Richard Domond,” and lists the contents of the freight as “Empty Bags.” This document has already been entered by the Crown as an exhibit at the trial.

[14] The third email attachment is a “Release Notification Report” that lists the Client and Importer name as “Richard Domond”, and which states that one bag weighing 45 kilograms was released on February 27, 2018, to the sublocation “A.C.I. Air Cargo Inc.”

[15] The Crown provided a copy of the Electronic Documents, including Officer Oliveros’ notations on the printout, to the defence as part of the Crown disclosure package.

ANALYSIS

[16] The Court of Appeal for Ontario reviewed the law related to the admissibility of electronic documents in R v. S.H., 2019 ONCA 669, paras. 12-31. According to Simmons J.A., as a threshold matter, I must apply sections 31.1, 31.2, and 31.3 of the Canada Evidence Act, R.S.C., 1985, c. C-5 to determine whether the electronic documents meet the common law authenticity and best evidence rules. In addition to these threshold requirements for admissibility, the party seeking to adduce the evidence must also satisfy common law or statutory admissibility rules to support admission of their contents: para 10.

Canada Evidence Act requirements

[17] During oral argument, the Crown rightfully conceded that the Electronic Documents meet the threshold requirements imposed by the relevant sections of the Canada Evidence Act.

[18] Section 31.1 of the CEA is concerned with the authenticity of the document, while s. 31.2 is concerned with the integrity of the technological system used to record or store it. In this case, by having Zamora log onto a properly functioning RCMP device to verify the information contained in the Kijiji messages and email attachments, Officer Oliveros effectively authenticated the Electronic Documents and satisfied the requirements of the best evidence rule as set out in the legislation.

Admissibility

[19] The Crown opposes the admissibility of the Electronic Documents. He says that they are inadmissible hearsay. Mr. Weinstock says that the Electronic Documents are intrinsically tied to Zamora’s statement to the Officer Oliveros and are akin to prior consistent statements. He points to the traditional exclusionary rule cautioning against the admission of an accused’s prior exculpatory statements. He says that it would undermine the trial process to allow Zamora to compel the admission of his unsworn statement into evidence through a Crown witness without taking the stand and being subjected to cross-examination himself: R. v. Kazenelson, 2015 ONSC 477, para. 9.

[20] Mr. Roth says that the Crown’s argument is misguided. First, he says that the Electronic Documents are more akin to real evidence than they are to an exculpatory statement. He says that Electronic Documents reflect a two-way conversation between the accused and a third party during the same timeframe as the alleged offence. Second, Mr. Roth says that Zamora is not seeking to have the Electronic Documents admitted for the truth of their contents but rather as relevant circumstantial evidence of Mr. Zamora’s state of mind when he went to pick up the package containing heroin at the ACI depot.

[21] The Crown concedes that the leading case of R. v. Edgar, 2010 ONCA 529, contemplates exceptions to the traditional exclusionary rule, including “where an accused’s prior consistent statement is relevant to his or her state of mind at the time the offence was committed…”: para. 35. However, the Crown says that, here, the Electronic Messages offer nothing of value in terms of assessing Zamora’s state of mind in the absence of his sworn testimony about what they mean.

[22] Mr. Roth says that the Crown’s argument only goes to weight, not admissibility. Whatever weight I ultimately give the Electronic Documents, Mr. Roth says that trial fairness requires that I admit them into evidence because they provide important context for the Cellular Phone Extractions being relied upon by the Crown to show that Zamora, Poku, and Matumula were involved in a conspiracy to import and traffic heroin.

[23] I have reviewed the Cellular Phone Extracts and note that the Crown relies on the following entries:

• On February 28, 2018 at 6:07:47 PM, “Nico” sent Zamora the following text message: “Yo if send me the link for your delivery when u are done I couldn’t find and he want to start on it so it could be done tomorrow”
• On February 28, 2018 at 7:30:57 PM, Zamora visited the Kijiji website. He clicked on “My Ads”, “Post Your Ad,” and “Delivery Driver Available / Moving and Storage / Markham / York Region.”
• On February 28, 2018 at 7:41:26, Zamora sent a text message to “Nico” with the following link: https://www.kijiji.ca/v-moving-storage/markham-york-region/delivery-driver-available/1336533225?enableSearchNavigationonFlag+true

[24] Overall, I find that the Electronic Documents may provide some circumstantial evidence about the proper interpretation of certain entries found in the Cellular Phone Extractions relied upon by the Crown. The weight to be attributed to the Electronic Documents and the issues to which they relate will be determined after full submissions from counsel at the conclusion of all of the evidence.

[25] The Electronic Documents can be admitted into evidence through Officer Oliveros. Mr. Roth may ask the witness to identify the documents, explain how they came into her possession, how they were authenticated, and how they were provided to the defence. Mr. Roth does not seek to and shall not introduce into evidence at trial the portions of Zamora’s videotaped statement relied upon as evidence during the voir dire.

Mandhane J. Released: March 1, 2023