DATE: 20010312

DOCKETS: C32536 and C32954

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent/Appellant) –and– MARC HAZOUT (Appellant/Respondent)

AND RE: HER MAJESTY THE QUEEN (Respondent/Appellant) –and– LAURENT HAZOUT (Appellant/Respondent)

BEFORE: CATZMAN, WEILER and ROSENBERG JJ.A.

COUNSEL: Christopher N. Buhr and Jennifer Gleitman, for the appellant

Marc Hazout

P. Andras Schreck, for the appellant Laurent Hazout

Christopher Webb, for the respondent

HEARD: March 8, 2001

On appeal from the convictions imposed by Justice John F. Hamilton dated, sitting without a jury, dated June 23, 1999.

E N D O R S E M E N T

[1] This trial was unsatisfactory in a number of respects. However, we only find it necessary to deal with two of the several grounds of appeal raised by the appellants.

Treatment of alibi

[2] The appellant Marc Hazout relied upon an alibi. If the evidence of the three alibi witnesses was accepted or if it raised a reasonable doubt, Marc Hazout had to be acquitted. The trial judge stated on two occasions that he was “not satisfied” that the alibi witnesses were reliable or correct in their recollections. The trial judge, however, never rejected that evidence and never considered whether the evidence was capable of raising a reasonable doubt. In the result, it would appear that the trial judge reversed the burden of proof. There were a number of factors affecting the reliability of the alibi evidence, but a reasonable trier of fact properly instructed could find that this evidence raised a reasonable doubt.

[3] While this error only directly affected Marc Hazout, if the witnesses were not reliable on as fundamental issue as the presence of Marc Hazout at the scene of the offences, this could affect the credibility generally of the Crown witnesses and therefore the case against Laurent Hazout.

Hearsay

[4] Through Constable Gibson, the Crown led evidence of the time and locations of various cell phone calls. Gibson’s evidence was based entirely upon information provided to him by an employee of Bell Mobility. This employee was not called as a witness and the records themselves were not entered into evidence. The only documents filed at trial were summaries prepared by Gibson with the assistance of the Bell Mobility employee.

[5] Crown counsel concedes that the evidence is hearsay evidence but submits that the curative proviso should be applied. In support of this submission Mr. Webb relies upon the decision of this court in R. v. Bero and points out that, as in Bero,defence counsel for Laurent Hazout (who was not his counsel on the appeal) did not object to the admission of the hearsay evidence. The lack of objection by counsel would not, of course, apply to Marc Hazout because he was unrepresented at trial. Further, unlike Bero, there is no obvious established exception to the hearsay rule that could have been resorted to that would have permitted the admission of this evidence. Nor, is it apparent that this evidence could have been admitted on the principled approach to admission of hearsay. On the face of the record there is nothing to suggest that the evidence was necessary in the sense that an employee from Bell Mobility could not have been called. The reliability of the evidence was also uncertain given that Constable Gibson himself testified that he was no expert on how cell phone signals are relayed. While it may have been convenient and expedient for the Crown to put the evidence in through Constable Gibson, such measures are not a substitute for meeting the prerequisites of the principled exception to the hearsay rule. There was no basis on which the evidence should have been admitted.

[6] In view of these errors the convictions must be set aside. This is not a proper case for application of the proviso in s. 686(1)(b)(iii) of the Criminal Code. The self-misdirection that led to the rejection of the alibi defence led the trial judge to find that the principal Crown witnesses were truthful. The trial judge explicitly relied upon the inadmissible hearsay evidence to as he put it “build the puzzle” leading to conviction.

[7] Accordingly, the appeals are allowed, the convictions set aside and a new trial ordered for both appellants. The conditional stays on count #3 are set aside and a new trial ordered on that count as well.

Signed: “M.A. Catzman J.A.”

“K.M. Weiler J.A.”

“M. Rosenberg J.A.”