R. v. Bogiatzis, 2010 ONCA 902
CITATION: R. v. Bogiatzis, 2010 ONCA 902
DATE: 20101224
DOCKET: C50377
COURT OF APPEAL FOR ONTARIO
Winkler C.J.O., Rosenberg J.A. and Pitt J. (ad hoc)
BETWEEN
Her Majesty The Queen
Respondent
and
Athanasios Bogiatzis
Appellant
Peter Copeland, for the appellant
John North, for the respondent
Heard: September 15, 2010
On appeal from conviction entered by Justice Peter Grossi of the Superior Court of Justice, sitting with a jury, dated May 1, 2008 and sentence imposed on August 8, 2008.
Rosenberg J.A.:
[1] The appellant, Athanasios Bogiatzis, appeals from his convictions and sentence by a court composed of Grossi J. and a jury on charges of conspiracy to traffic in cocaine and trafficking in cocaine. The law of conspiracy and, in particular, the directions to the jury on the application of the co-conspirators’ exception to the hearsay rule can be difficult and was especially in this case because of the particular facts before the court. First, this was a situation which involved an alleged two-person conspiracy between the accused and a co-conspirator. Here, the alleged co-conspirator had already pleaded guilty to and was sentenced for one of the offences charged. The other challenge posed by the case was that, while the indictment alleged a two-man conspiracy culminating with the sale by the other conspirator of a quantity of cocaine to a police agent, the Crown sought the evidentiary benefit of a conspiracy it alleged continued for many more months. In this appeal, the appellant submits that the trial judge erred by not tailoring the directions given to the jury on how to apply the co-conspirators’ exception to the hearsay rule to the particular fact scenario. The appellant also submits that the trial judge erred in admitting hearsay evidence of conversations between the alleged co-conspirator and police agent that transpired during the months after the sale transaction and, in any event, misdirected the jury concerning the use of this evidence and proof of the conspiracy.
[2] On the sentence appeal, the appellant submits that the sentence of five years and four months in addition to 16 months of pre-sentence custody was excessive and, that the trial judge erred in making an order under s. 743.6 of the Criminal Code that the appellant serve one-half of his sentence before he becomes eligible for parole.
[3] For the following reasons, I would allow the conviction appeal and order a new trial. In the result, it is not necessary to deal with the sentence appeal.
THE FACTS
The Cocaine Transaction: April to June 7, 2006
[4] There were two principal Crown witnesses. The first witness, David Atwell, was a member of the Hell’s Angels who had become a police informer. The Crown’s case depended upon the truth and reliability of his evidence. The second witness, Tom Christodoulou, was a friend of the appellant, and was alleged to be the other member of the conspiracy. It was in fact Christodoulou who delivered one kilogram of cocaine to Atwell for a price of $27,500 on June 7, 2006. Although a Crown witness, Christodoulou did not support the Crown’s case against the appellant. He testified that there was no agreement between him and the appellant to traffic in narcotics. While he may have used the appellant’s name in conversations with Atwell, he did so to further his own personal drug trafficking enterprise. The appellant, however, had not agreed with him to traffic in cocaine.
[5] The Crown’s case turns on a series of meetings between Atwell and Christodoulou, two of which also included the appellant. Atwell, Christodoulou and the appellant first met by chance on April 13, 2006. By this time, Atwell had been a paid police agent for some time, engaged in an operation targeting the Hell’s Angels. While returning from a meeting connected with that operation, he noticed two men in the driveway of an associate and approached them. The two men were the appellant and Christodoulou. Because he had been involved in the police operation, Atwell was wearing a body-pack transmitter and thus there is an audio recording of this first meeting. After exchanging pleasantries, Atwell suggested they should get together and he asked for a telephone number. The appellant told Christodoulou to give him the number. According to Atwell, Christodoulou wrote down a telephone number on a piece of paper and handed it to him.
[6] Atwell’s next encounter with the appellant and Christodoulou also appears to have been by chance. A week later, on April 20, Atwell noticed the two men in a Pizza Pizza outlet in Toronto. Atwell was not wearing the body pack on this occasion and thus the accuracy of what happened depends upon the testimony of the two Crown witnesses, Atwell and Christodoulou; the appellant did not testify. On Atwell’s version, he raised with both men the idea of purchasing cocaine. It was his evidence that either the appellant or Christodoulou said they would sell “their” cocaine for $27,500 per kilogram. Christodoulou’s version was different. He testified that he believed the drug-related conversation took place outside the Pizza Pizza and only involved him and Atwell. As a result of this meeting, the appellant and Christodoulou became targets of the police investigation and the police instructed Atwell to try and purchase cocaine from them.
[7] In the weeks following April 20, Atwell on several occasions called the number he had been given on April 13. He finally received a call back from Christodoulou and they arranged to meet on June 6 at the Esquire Restaurant in Toronto. Although Atwell was wearing a body pack on this occasion, the device malfunctioned and so the court was presented with two versions of what transpired that day. Atwell and Christodoulou met for lunch and discussed the sale of cocaine. After lunch, Christodoulou, who did not drive, made a telephone call and then asked Atwell to drive him to Harry’s Hamburgers. The two men drove to the restaurant where they met up with the appellant. According to Atwell, Christodoulou told the appellant that he wanted a kilogram of cocaine, to which the appellant replied “cool”. The appellant asked if the cocaine was for Atwell and Atwell answered that it was. Atwell also testified that it was at this time that he made arrangements to meet Christodoulou and the appellant at a hotel in Pickering the next day to complete the transaction. He would get a telephone call when either Christodoulou or the appellant was in the lobby. Atwell would then bring them to his room.
[8] Christodoulou denied that any drug related conversation took place in the presence of the appellant at Harry’s Hamburgers, as the arrangements had already been made at the other restaurant. It was his evidence that he wanted the ride to Harry’s Hamburgers only so that he could meet up with the appellant and get a ride home downtown with him. The meeting involving the three men was extremely brief and Atwell left after a few minutes.
[9] On June 7, 2006, Christodoulou met Atwell at the Pickering hotel where Atwell purchased one kilogram of cocaine for $27,500. They discussed how long it would take Atwell to sell the cocaine. Atwell told Christodoulou that he could sell it by mid-July. He said he was not “big Tommy” (an apparent reference to the appellant) but that his customers were solid. This meeting was both audio and video recorded.
The Post-June 7, 2006 Meetings
[10] Over the objection of defence counsel, the trial judge permitted Crown counsel to lead evidence of three meetings between Atwell and Christodoulou after the June 7th meeting. The appellant was not present at any of these meetings. These three meetings were audio recorded.
[11] On June 27, Christodoulou told Atwell that he could probably sell cocaine to him for less than the June 7th price. Atwell said that he was pleased to be doing business with “you guys” and Christodoulou said “we gotta move some customers again” and that “the club guys... do it for us”.
[12] On October 18, 2006, Atwell again met with Christodoulou and arranged for another sale of cocaine. Atwell said that he wanted to “deal with you guys again”.
[13] A week later on October 24, Atwell again met with Christodoulou and they had further discussions about a cocaine sale and talked price and quality. The Crown particularly relied upon this part of the conversation:
Christodoulou: Like fuck I don’t mind making a thousand bucks me and Tom just split five hundred each like I’ve known you twenty fucking years (unintelligible)
Atwell: Let him know that last time I got that fuckin key off him it was dynamite I want to thank him for that
Christodoulou: Yeah yeah it’s always gonna be dynamite Dave he’ll always be I won’t I won’t bring it to you if it’s shit I won’t even waste your time I got guys that offer it to me for twenty two right now today beige
[14] According to Christodoulou, the appellant was not involved in the sale of cocaine. He explained that Atwell had known the appellant for a long time. Christodoulou did not correct Atwell’s apparent belief that the appellant was involved in the trafficking because he thought he would be able to convince Atwell to purchase more cocaine if Atwell believed the appellant was involved. He would bring up the appellant’s name in order to impress Atwell so he could get more business from him.
[15] The defence mounted a substantial attack on the credibility of the police agent, David Atwell. I need not review that evidence in detail. Suffice to say that there were concerns with Atwell’s credibility including some important inconsistencies in his recollection of the events, the fact that any time there were drug-related conversations with the appellant the recording device was not present or was not operating, that he was receiving substantial payments from the police for his cooperation in the investigation, and his record of offences and other misconduct while a member of the Hell’s Angels.
THE GROUNDS OF APPEAL
[16] The appellant raises the following grounds of appeal against conviction:
(1) The trial judge erred in admitting the conversations between Atwell and Christodoulou of June 7, June 27, October 18 and October 24 under the co-conspirators’ exception to the hearsay rule.
(2) Even if the conversations were admissible, the trial judge misdirected the jury as to the application of the co-conspirators’ exception.
(3) The trial judge erred in failing to determine whether the post-June 7 conversations were admissible as similar fact evidence and erred in failing to give a limiting instruction concerning those conversations.
(4) The trial judge erred in failing to direct the jury to ignore Atwell’s opinion that the appellant was a drug dealer.
(5) The trial judge erred in permitting Crown counsel to cross-examine Christodoulou on his pattern of protecting the appellant.
(6) The trial judge misdirected the jury concerning party liability, especially as it applied to the conspiracy charge.
ANALYSIS
1. Grounds of Appeal Concerning the Co-conspirators’ Exception
(i) Introduction
[17] The first three grounds of appeal concern the application of the co-conspirators’ exception to the hearsay rule. As I indicated, this case presents a particularly difficult application of the exception because (1) there were only two persons in the conspiracy, Christodoulou and the appellant; and (2) there were two different conspiracies alleged, the one in the indictment (the narrow conspiracy) and the on-going conspiracy (the broader conspiracy). The indictment alleged that the appellant and Christodoulou conspired in the City of Toronto and the City of Pickering to traffic in cocaine “between the 6th day of April and the 7th day of June in the year 2006”. Thus, the indictment embraced the period from the first chance meeting on April 13 to the transaction in the hotel in Pickering on June 7. The Crown, however, attempted to prove that there was a continuing conspiracy that extended at least to October of 2006 when Christodoulou continued to meet with Atwell.
[18] Until the co-conspirators’ exception was attacked on the basis that it did not conform with the principled approach to admissibility of hearsay evidence, the leading decision on the application of the exception was found in R. v. Carter, 1982 35 (SCC), [1982] 1 S.C.R. 938. Because Carter was a jury case, the exception is explained in terms of the directions to the jury and consists of three stages, at p. 947:
In charging the jury on this question, the trial judge should instruct them [1] to consider whether on all the evidence they are satisfied beyond a reasonable doubt that the conspiracy charged in the indictment existed. If they are not satisfied, then the accused charged with participation in the conspiracy must be acquitted. [2] If, however, they conclude that a conspiracy as alleged did exist, they must then review the evidence and decide whether, on the basis of the evidence directly receivable against the accused, a probability is raised that he was a member of the conspiracy. [3] If this conclusion is reached, they then become entitled to apply the hearsay exception and consider evidence of the acts and declarations performed and made by the co-conspirators in furtherance of the objects of the conspiracy as evidence against the accused on the issue of his guilt. This evidence, taken with the other evidence, may be sufficient to satisfy the jury beyond a reasonable doubt that the accused was a member of the conspiracy and that he is accordingly guilty.
[Numbering added.]
[19] Part of the difficulty that arises in this case is because the directions concerning the application of the hearsay exception are interwoven with the directions on the elements of the conspiracy offence itself. Thus, as explained in Carter, first, the trial judge should instruct the jury to consider whether “on all the evidence” they are satisfied beyond a reasonable doubt that the conspiracy charged in the indictment existed. If they are not so satisfied then the accused must be acquitted. This first stage is awkward and potentially difficult to apply where only a two-person conspiracy is alleged. The problem lies in instructing the jury that it can use “all the evidence”, which potentially includes hearsay evidence, to decide whether there is a conspiracy. In using all the evidence to decide beyond a reasonable doubt that the conspiracy exists, the jury has, as a matter of logic and common sense, concluded that the two members of the conspiracy are guilty. This is unfair to the two accused, or the one accused on trial as in this case, because the finding of guilt has been based on hearsay evidence that may or may not be admissible, depending on resolution of the next two stages of Carter.
[20] The possible confusion and prejudice are enhanced in a two-person conspiracy because of the weaving in of the directions on the application of the exception with the directions on the conspiracy offence itself. As indicated, according to Carter, the trial judge is to instruct the jury that, if they do not find beyond a reasonable doubt that the conspiracy existed, the accused must be acquitted. In a two-person conspiracy the inevitable logical corollary to this direction is that, if the conspiracy does exist beyond a reasonable doubt, then the guilt of the only two members must have been established.
[21] At the second stage of Carter, having concluded that a conspiracy as alleged did exist, the jury must then review the evidence and decide whether, on the basis of the evidence directly receivable against the accused, not including hearsay evidence,[^1] a probability is raised that the accused was a member of the conspiracy. If not, then, of course, the accused must be acquitted. One of the issues in this case is whether probable membership must be established in relation to the broader conspiracy alleged by the Crown or only the narrow conspiracy charged in the indictment.
[22] At the third stage of the Carter test, the jury is entitled to apply the hearsay exception and consider evidence of the acts and declarations performed and made by the co-conspirators in furtherance of the objects of the conspiracy as evidence against the accused on the issue of his guilt. This evidence, taken with the other evidence, may be sufficient to satisfy the jury beyond a reasonable doubt that the accused was a member of the conspiracy and that accordingly, he is guilty. The “in furtherance” requirement is an issue in this case.
[23] Thus, in this case, the Carter instructions raise the following questions:
(1) How is the first stage to be explained to a jury when all that is alleged is a two-person conspiracy?
(2) Can the exception operate to include statements made outside the conspiracy alleged in the indictment? If so, then at the second stage, must it be shown from the accused’s own acts and declarations that he is probably a member of the broader conspiracy?
(3) Does a judge have any role in determining whether statements meet the in furtherance requirement?
(ii) The first stage in a two-person conspiracy
[24] The difficulty posed by the first stage of the Carter analysis in a two-person conspiracy is the risk that the jury will have found the accused guilty at the first stage by using all of the evidence, including hearsay statements from the co-conspirator, that may not be properly admissible against the accused. The problem arises because the essence of a conspiracy is an agreement. If the jury has found an agreement and there are only two people involved, it follows that both must be guilty; otherwise there could be no agreement. I admit that the application of the Carter formula in a two-person conspiracy is challenging, but the Supreme Court of Canada, albeit in obiter, has held in R. v. Barrow, 1987 11 (SCC), [1987] 2 S.C.R. 694 at 742-43,[^2] that it is applicable.
[25] The application of Carter in a two-person conspiracy starts with the principle that it is possible to have a two-person conspiracy in which only one person is convicted. For example, the jury might well find on the basis of all the evidence that there was an agreement and might well find on the basis of the evidence admissible against one person that that person was a party to the conspiracy. There might not, however, be sufficient admissible evidence of the other person’s probable membership in the two person agreement: see Guimond v. The Queen, 1979 204 (SCC), [1979] 1 S.C.R. 960 at 977 and R. v. Barrow, at pp. 742-43. An example, similar to the one used by McIntyre J. in Barrow, shows how the Carter formula would apply. Assume a conspiracy allegedly involving only an agreement between A and B in which A gives a statement to the police in which he says that he and B conspired to traffic in cocaine. Using all the evidence at stage one, including the statement, the jury could conclude beyond a reasonable doubt that a conspiracy involving A and B to traffic in cocaine existed. However, the statement has a limited use. It could be used to establish the existence of the conspiracy at stage one, and can also be used to show A’s probable membership in the conspiracy at stage two. However, as against B, the statement cannot be used to show that B was a probable member of the conspiracy at stage two.
[26] The difficulty therefore lies not in the theory of the application of the exception to a two-person conspiracy, but in the need for careful instructions on what evidence the jury may use at the various stages of the Carter analysis, and how the evidence may be used. To return to the Barrow example, the jury would have to be told that they could use A’s statement for the limited purposes of deciding whether a conspiracy existed, and to determine A’s probable membership in the conspiracy. However, the jury must be instructed that it could not use A’s statement for the improper purpose of deciding whether B was a probable member of the conspiracy. I admit that this places the jury in a very difficult position as they attempt to juggle the use of various pieces of evidence. And, the problem for the trial judge in attempting to charge the jury is acute where the evidence is not as clear cut as in the Barrow example. However, until the Supreme Court of Canada holds otherwise, I do not see that it is open to this court to abandon the Carter test in a two-person conspiracy.[^3]
[27] In R. v. Viandante (1995), 1995 16408 (MB CA), 40 C.R. (4th) 353 (Man. C.A.), Huband J.A. speaking for the court, grappled with the difficulty of applying Carter in a two-person conspiracy case. In that case, the court was of the view that the trial judge had failed to make it clear at stage one of Carter that proof of the existence of a two-person conspiracy involving one of the alleged conspirators did not mean that the other accused’s guilt in the same two-person conspiracy was established. In other words, in using “all the evidence” at stage one, would the jury understand that finding the conspiracy existed did not necessarily determine either of the two accused’s membership in that conspiracy?
[28] In my view, the trial judge in this case made an admirable attempt to deal with this difficult issue. He obviously recognized that the most serious risk of prejudice was that the jury would use the post-June 7 conversations to decide whether the narrow conspiracy existed and by necessary inference use those conversations to decide that the appellant was a member of the conspiracy. Accordingly, in his directions at stage one as to whether a conspiracy existed, the trial judge referred the jury to only the pre-June 7 conversations. However, the trial judge also told the jury that they “should consider all the circumstances including, but not only, what each person alleged to be a member of that conspiracy did or did not say, did or did not do, as well as how he did or did not do it” and to take into account “what the alleged participants said and did in the circumstances in which the words were spoken and the conduct took place”. In my view, there was a danger that the jury would have used all of the evidence, including statements made by Christodoulou when the appellant was not present, possibly even the post-June 7 conversations, to find that the conspiracy between the appellant and Christodoulou existed and necessarily that the appellant was a member of the conspiracy.
[29] As difficult a concept as it may be, the trial judge was required to instruct the jury that while they were entitled to use all the evidence to decide whether the conspiracy existed, that determination did not decide the issue of the appellant’s membership because of the evidentiary rules surrounding the use of hearsay. While hearsay in the form of Christodoulou’s statements, even those made in the absence of the appellant, was available to prove the existence of the conspiracy, it was not available to prove the appellant’s membership in the conspiracy until certain further steps were taken: see Viandante at paras. 50 - 51. I recognize that this puts a heavy burden on the trial judge to instruct the jury on what would seem to them to be esoteric and abstract principles. I will provide some suggestions at the conclusion of this part of the reasons as to how these concepts might sensibly be conveyed to the jury. As I will explain, in my view, the key to make the directions understandable and workable in a two-person conspiracy is to sever the directions on the exception from the directions on the elements of conspiracy.
[30] The Crown argues that the jury would have understood that determining the issue of whether a conspiracy existed did not determine that the appellant was a member of the conspiracy. This submission is based principally on the fact that the instructions in stage one of the Carter test were immediately followed by instructions on the issue of the appellant’s probable membership (Carter, stage two), along with the direction that the appellant must not be found guilty if he was probably not a member of the conspiracy. I recognize the strength of the Crown’s submission and it may be that if this were the only problem with the charge to the jury this might be an appropriate case for application of the proviso. Unfortunately, that was not the only problem.
(iii) Applying the exception beyond the conspiracy alleged in the indictment
[31] The next issue to be considered is how to apply the co-conspirators’ exception in a case where the Crown seeks to rely on declarations of co-conspirators outside the conspiracy alleged in the indictment. In Carter, at p. 947, McIntyre J. framed the second stage of the application of the co-conspirators exception in these terms:
If they are not satisfied, then the accused charged with participation in the conspiracy must be acquitted. If, however, they conclude that a conspiracy as alleged did exist, they must then review the evidence and decide whether, on the basis of the evidence directly receivable against the accused, a probability is raised that he was a member of the conspiracy. [Emphasis added.]
[32] This excerpt from Carter does not answer the question in a case such as this where the conspiracy alleged in the indictment is different from the conspiracy sought to proven for the purposes of the hearsay exception. However, resort to first principles can, I believe, provide the answer. First, it becomes necessary to draw a bright line between the conspiracy alleged in the indictment and the broader actual agreement reached by the participants. The conspiracy alleged in the indictment may or may not be an artificial construct. In some cases, the conspiracy alleged in the indictment will coincide exactly with the agreement reached by the conspirators. The conspiracy may have been to achieve a discrete act that was either achieved or frustrated by arrest on a known date. However, in some cases, and the Crown alleges that this is one, the actual agreement may be broader than the indictment. In this case, the Crown alleged that Christodoulou and the appellant were in the business of trafficking in large amounts of cocaine. On that theory, the sale to Atwell on June 7, 2006 was merely one overt act of the conspiracy.
[33] In R. v. Sauvé (2004), 2004 9054 (ON CA), 182 C.C.C. (3d) 321 at paras. 115-118 and R. v. Vrany (1979), 1979 3008 (ON CA), 46 C.C.C. (2d) 14 at p. 26, this court held that for the purposes of applying the co-conspirators’ exception one can look to the actual agreement and not necessarily the narrower conspiracy alleged in the indictment. However, in my view, for the declarations of co-conspirators made in the context of the broader conspiracy to be admissible against the accused, the Crown must prove the existence of the broader conspiracy beyond a reasonable doubt at stage one, and prove the accused’s probable membership in the broader conspiracy at stage two. As this court said in Sauvé at para. 118, the scope of the conspiracy “does not depend on the definition of the particular crime charged but the nature of the agreement”. Therefore, if the Crown seeks the forensic advantage of the broader agreement, it must prove that agreement and the accused’s probable membership in that agreement, not just the agreement alleged in the indictment.
[34] Two excerpts from this court’s decision in R. v. Chang (2003), 2003 29135 (ON CA), 173 C.C.C. (3d) 397 demonstrate the need for these requirements. In the first excerpt, at para. 84, the court reviews the theoretical basis for the exception:
The co-conspirators' rule is based on the notion that the declarant co-conspirator who speaks in furtherance of a conspiracy to which the accused is shown to be a party should be considered to speak as an agent of the accused. The combination of the principles relating to admissions and agency leads to admissibility. [Emphasis added.]
The theory of agency only makes sense in the context of the actual conspiracy to which the accused is alleged to be a member, not some other conspiracy. The co-conspirator is not the accused’s agent for all possible purposes, but in relation to a specific agreement.
[35] Then, when discussing the safeguards that make hearsay declarations of co-conspirators sufficiently reliable for the purpose of the principled approach to hearsay the court said the following at para. 120:
The third requirement in Carter provides a further safeguard against the use of unreliable hearsay. Assuming the hurdles in steps one and two are cleared, the trier of fact may rely on hearsay declarations, but importantly only if they are made in furtherance of the conspiracy. This is critical. It is not enough that the hearsay words or acts pertain to the conspiracy. They must be found to further the specific unlawful object which has been found to exist beyond a reasonable doubt under step one and to which the direct evidence links the accused under step two. [Emphasis added.]
[36] This crucial in furtherance requirement must relate to the very conspiracy for which the hearsay words are tendered. They must be found, in the words of Chang, to “further the specific unlawful object which has been found to exist beyond a reasonable doubt under step one and to which the direct evidence links the accused under step two”. When the Supreme Court of Canada came to consider the same issue in R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 24, it focused on the reliability inherent in the requirement that the accused were pursuing “a common enterprise”:
Proof that a conspiracy existed beyond a reasonable doubt and that the accused probably participated in it does not merely corroborate the statement in issue. Rather, it attests to a common enterprise that enhances the general reliability of what was said in the course of pursuing that enterprise. It is similar in its effect to the res gestae exception to the hearsay rule, where surrounding context furnishes circumstantial indicators of reliability. The concern is not with whether a particular statement is corroborated, but rather with circumstantial indicators of reliability. [Emphasis added.]
[37] Again, given the focus on reliability flowing from the involvement in the common enterprise, for the exception to apply, the accused must be shown to be a probable member of that common enterprise. Accordingly, for the Crown to rely upon statements made in furtherance of the broader conspiracy, the Crown must show that the accused was probably a member of that broader conspiracy. In its factum in this court, the Crown has assembled the evidence from which a trier of fact could conclude that there was a broader conspiracy and that the appellant was probably a member of that conspiracy. The Crown relies on evidence such as the long-standing friendship between the appellant and Christodoulou; that the two appeared to share a phone; and that they appeared to have kilograms of cocaine to sell, not just the single kilogram purchased on June 7. From this evidence, the Crown suggests a trier of fact could draw the common sense inference that the agreement did not suddenly end on June 6 or 7. That may well be; however, the difficulty the Crown faces in this case is that whether the broader conspiracy existed and whether the appellant was probably a member of the broader conspiracy were questions to be put to the jury. Indeed Crown counsel concedes this point in their factum:
Ultimately, whether or not the conspiracy remained alive after the June 7, 2006 transaction, and whether or not the post-June 7th conversations were in furtherance of that conspiracy, were questions for the jury to decide.
[38] The problem is that those jury questions were not left to the jury to decide. As I have said earlier, the question of whether the conspiracy existed was put solely in relation to the conspiracy as alleged in the indictment, that is, the narrow conspiracy. Similarly, the question of probable membership was solely based on the pre-June 7 conversations. The trial judge never expressly asked the jury to determine whether the broader conspiracy existed or whether the appellant was probably a member of it. The closest the trial judge came in putting that issue to the jury was in a passage set out below, which was concerned with the in furtherance requirement at stage three and focused on whether the conspiracy continued in existence; there was nothing in those instructions expressly addressing the appellant’s probable membership in any ongoing conspiracy. After instructing the jury that they were not limited to the appellant’s own words and conduct at the third stage, the trial judge said this:
Besides that evidence, you may take into account anything that any other member of the conspiracy said or did while the conspiracy was ongoing for the purpose of achieving its object or purpose, that is, to traffic in cocaine.
It is not everything said and done by any members of the conspiracy, charged or uncharged, on trial or not on trial, on which you may rely to decide whether Crown counsel has proven beyond a reasonable doubt that Mr. Bogiatzis was a member of that conspiracy.
There are two requirements: the words must be spoken and the acts done while the conspiracy remains in existence, and in furtherance of the object for the purpose of the conspiracy.
To determine whether the conspiracy remained in existence, you may wish to consider that Mr. Bogiatzis and Mr. Christodoulou met on two occasions, April 20th and June 6, 2006 and discussed the deal. With respect to furtherance of the object or purpose of the conspiracy, to determine whether the words and acts were done in furtherance of the conspiracy, you may wish to consider Mr. Bogiatzis and Mr. Christodoulou arranging to meet the agent at the Comfort Inn on June 7, 2006 to complete the deal. [Emphasis added.]
[39] Thus, far from focusing on the key question of whether the appellant from his own acts and declarations was shown to probably be a member of the broader conspiracy, the trial judge simply invited the jury to refer back to the pre-June 7 conversations in a manner that focused solely on the charged narrow conspiracy not the broader conspiracy. Over the next several pages the trial judge then dealt at length with the post-June 7 conversations between Atwell and Christodoulou, suggested how they might be found to be in furtherance of the conspiracy and could be interpreted as showing beyond a reasonable doubt that the appellant was a member of the narrow conspiracy.
[40] Crown counsel argues on appeal that the jury would not have used the post-June 7 conversations if they found that the appellant was only a probable member of a conspiracy that ended on June 7. He relies upon the portion of the directions set out above: “There are two requirements: the words must be spoken and the acts done while the conspiracy remains in existence, and in furtherance of the object for the purpose of the conspiracy.” Counsel submits that this direction negates any risk that the jury would have improperly used the post-June 7 evidence, given that this was a two-person conspiracy. I do not agree. Those directions do not draw the jury’s attention to the fundamental factual finding of the appellant’s probable membership in the broader conspiracy based solely on his own acts and declarations. To the contrary, the directions relied upon by the Crown simply jump over or, at best, assume the probable membership.
[41] In my view, this is not a trivial error. While there was evidence that the appellant was probably a member of a broader conspiracy, that evidence was circumstantial and depended upon the jury accepting Atwell’s version of the conversations that were not recorded. Given Atwell’s credibility problems it was not inevitable that the jury would have accepted his version of events. On the other hand, the post-June 7 conversations were recorded and did tend to confirm some of Atwell’s evidence. But, the jury was not entitled to use that evidence until it made the preliminary finding of probable membership in the broader conspiracy.
(iv) The judge’s role and the “in furtherance” requirement
[42] I agree with counsel for the appellant that the trial judge does have a role in determining whether statements meet the in furtherance requirement. The role, however, is a modest one. The trial judge must merely determine whether there is some evidence upon which a jury could find that the declaration was made in furtherance of the conspiracy: R. v. McNamara (1981), 1981 3120 (ON CA), 56 C.C.C. (2d) 193 (Ont. C.A.) at p. 441. In this case, the trial judge was required to decide whether the post-June 7 statements were capable of being in furtherance of the broader conspiracy. Much that is contained in very lengthy recordings is not in furtherance of the conspiracy, but equally is not prejudicial; it amounts to discussion between Atwell and Christodoulou about any number of topics having nothing to do with the appellant. I have earlier set out those few conversations that the parties have identified as potentially prejudicial to the appellant. The Crown submits that those conversations are capable of being in furtherance of the conspiracy. The trial judge’s ruling on this issue was brief:
In my view, the portions of audio transcript establish a nexus, a linkage, if you will, to the accused. The statements, in my view, were made in furtherance of the conspiracy in the case at bar. The police agent and the declarant present during the audio transcript involved in the joint enterprise are available to give evidence and be cross-examined.
In my view, the threshold has been met. It will be for the jury to determine on the two-stage approach, applying the test of Regina v. Carter. It is not necessary that the directly admissible evidence be adduced first before any evidence of the acts and declarations of others involved in the joint enterprise may be received. The exigencies of the trial will make a chronological separation of the evidence impossible.
[43] In my view, it was open to the trial judge to find that the conversations relied upon by the Crown were capable of being in furtherance of an on-going conspiracy. The conversations are not simply narrative but an attempt by Christodoulou to reassure Atwell of his reliability and entice him into further transactions, sometimes by using the appellant’s name: see R. v. Mota (1979), 1979 2966 (ON CA), 46 C.C.C. 273 (Ont. C.A.) at p. 283. As such, the conversations were capable of being in furtherance of the conspiracy.
[44] The appellant also challenged the admissibility of the June 7 conversations when the one kilogram cocaine transaction took place. There is no merit to this submission. As Crown counsel points out, this was a recording of the illegal transaction itself, which formed the basis for the count of trafficking in cocaine. More importantly, the conversations were to ensure the drug transaction occurred and were thus made in furtherance of the conspiracy.
(v) Limiting instruction on the post-June 7 conversations
[45] The appellant submits that the post-June 7 conversations constituted disreputable conduct and the trial judge erred in failing to perform a similar fact analysis in accordance with R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. I point out that while defence counsel objected to the admissibility of these conversations on the basis that they were inadmissible hearsay not being in furtherance of the conspiracy, no objection was taken on this basis.
[46] In my view, the similar fact argument is misconceived. The post-June 7 conversations were not evidence of other disreputable conduct from which a trier of fact was asked to reason that the appellant had a specific propensity to conspire to traffic in narcotics on other occasions. Rather they were alleged to be evidence of the very agreement that was charged. On the Crown’s theory, there were not two separate conspiracies, one ending on June 7 and one continuing until October. There was only the one conspiracy, which the Crown sought to prove through various kinds of evidence, including the post June 7 hearsay statements. I cannot think of a direction that could be given to the jury that would be of any use to the jury in determining whether that conspiracy existed and would be of any benefit to the appellant. I would not give effect to this ground of appeal.
2 The trial judge erred in failing to direct the jury to ignore Atwell’s opinion that the appellant was a drug dealer.
[47] It will be recalled that Atwell met with the appellant and Christodoulou by chance at a Pizza Pizza outlet on April 20, 2006 and that he was not wearing the body pack. According to Atwell, either Christodoulou or the appellant mentioned that “their” kilos were available to him for $27,500. When asked by Crown counsel why he had used the word “their”, Atwell replied as follows:
A. Yes. Tom Christodoulou and Tom Bogiatzis are partners in dealing cocaine.
Q. How do you know that?
A. I know this through previous charges, convictions.
[48] Counsel for the appellant objected and in the presence of the jury stated that the witness well knew that they were acquitted and that the appellant had brought a lawsuit in which he was seeking $10 million. Atwell was then asked to clarify without reference to the charges. He then said that the appellant and Christodoulou were drug dealers, “and everyone knew it”. Counsel for the appellant again objected. Following submissions, Crown counsel asked Atwell to focus on this investigation in answering the question of what led him to believe that the appellant and Christodoulou were dealing in drugs together. Atwell said: “The discussion we had at the Pizza Pizza.” I have some difficulty understanding why Atwell’s opinion as to why he believed the appellant and Christodoulou were dealing in drugs together was relevant; that was a question for the jury. Further, it was prejudicial and unfair to permit Atwell to express the opinion that everyone knew they were drug dealers.
[49] That said, defence counsel, by his quick response to the first set of questions, took much of the sting out of Atwell’s answers, and the ultimate answer relating the opinion back to the Pizza Pizza conversations was harmless. Accordingly, were this the only error in the trial, I would not think it sufficient to warrant a new trial.
3 The trial judge erred in permitting Crown counsel to cross-examine Christodoulou on his pattern of protecting the appellant
[50] Although he was called as a Crown witness, Christodoulou was ultimately found to be a hostile witness and the trial judge permitted Crown counsel to cross-examine him at large. Crown counsel at trial attempted to discredit Christodoulou’s evidence that the appellant was not involved in the drug trafficking by reference to what was said when Christodoulou pleaded guilty on two previous occasions. Crown counsel sought to demonstrate a pattern that in situations where Christodoulou pleaded guilty to offences involving him and the appellant, he attempted to protect the appellant. The impugned cross-examination focused on two incidents. In 1998, Christodoulou pleaded guilty to failing to comply with the terms of a recognizance. His counsel stated at the time that “my client will not be called against the still accused Mr. Bogiatzis”. In April 2007, Christodoulou pleaded guilty to trafficking in relation to the same events for which the appellant was on trial. His counsel at the time said the following:
As I understand [it] the facts with respect to Mr. Christodoulou only are correct, Your Honour. He specifically does not accept any facts with respect to Mr. Bogiatzis.
[51] The appellant submits that this line of cross-examination was irrelevant and prejudiced the appellant because it showed that the appellant and Christodoulou had been charged together on prior occasions. In my view, the appellant exaggerates the prejudicial effect of the evidence. There was no surprise that Christodoulou was involved in the trafficking charge and that he did not implicate the appellant; his own testimony made that clear. The statement by defence counsel during the 1998 proceeding was relatively harmless. While I tend to agree with the appellant that the inference the Crown sought to draw from the two proceedings was speculative, since there was no prejudice, I would not give effect to this ground of appeal. On a new trial, Crown counsel will want to stay away from this area.
4 The trial judge misdirected the jury concerning party liability, especially as it applied to the conspiracy charge.
[52] The Crown’s position in this case was that the appellant and Christodoulou conspired to traffic in cocaine and that both were principals in the June 7 sale. However, the Crown also sought an instruction to the jury on party liability. The direction concerning party liability on the substantive trafficking charge was correct and I see no basis for complaint. The direction concerning parties to the conspiracy is more problematic. The trial judge directed the jury as follows:
Now then, having given you the substantive offences – conspiracy to traffic in cocaine and trafficking in cocaine—there is another way that the Crown can prove the offences. It is called parties to an offence. In this particular case, what the Crown is saying is that Mr. Bogiatzis is also a party to the offence of conspiracy to traffic in cocaine and he is also a party to the offence of trafficking in cocaine.
Applying this law, this section of the Criminal Code, to Mr. Bogiatzis, it is the Crown’s position that regarding these counts, count 1 and count 2, he was involved in a joint venture with respect to the conspiracy to traffic with Mr. Christodoulou, and it has the same submissions with respect to the trafficking, but it is also Crown’s position about Bogiatzis’ role in both the conspiracy to traffic and the trafficking that his role is also as an aider, that he is aiding Mr. Christodoulou in committing the offences that are set out in the two charges.
[Emphasis added.]
[53] After the jury began deliberating they asked a question about the definition of trafficking. At the request of Crown counsel, the trial judge also directed the jury about party liability and, for reasons that are not clear, the trial judge included the instructions on party liability in relation to conspiracy as well as trafficking:
With respect to the law of parties to the offence, you will recall I talked to you about parties to an offence. In this case, the Crown’s position is that both in the conspiracy to traffic in cocaine and in the trafficking in cocaine, Mr. Bogiatzis is a party to the offence. The Crown’s position is that he is a party to the offence as a joint principal and that he is a party to the offence as an aider.
Aiding relates to a specific offence, in this particular case, count 1, the conspiracy to traffic in cocaine, and count 2 trafficking in cocaine. An aider must intend that the offence is committed, now that the other person intends to commit it and intend to help that person accomplish his goal. It does not matter, as far as the aider is concerned, whether the person who he aids is not on trial or cannot be convicted of the offence with respect to the conspiracy.
To establish the accused’s guilt of conspiracy as an aider, the Crown must prove that the accused: one, knew the object of the conspiracy; number two assisted the conspirators; and three intended to assist the conspirators in obtaining their unlawful object.
[Emphasis added.]
[54] The appellant submits that this was misdirection because it is not possible for the appellant to aid a two-person conspiracy in which he was alleged to have been one of the members of the conspiracy. I agree with this submission. This court has held that a person may be convicted of conspiracy as a party under s. 21 of the Criminal Code if the person abetted or encouraged the conspiracy: McNamara at p. 454. However, in this case, there was no conspiracy to abet if the appellant was not a member of it. Crown counsel submits that this error was of no consequence since the jury would have drawn the same conclusion, and if they did not find that the appellant was a member of the conspiracy, they never would have reached the issue of party liability. There was no objection to this aspect of the direction by defence counsel at trial. Again, standing alone, this misdirection might not warrant a new trial. It does, however, add to what was a difficult and somewhat confusing charge related to the two-person conspiracy directions.
5. Suggested Directions
[55] I indicated earlier that I would suggest how the trial judge at the new trial might approach the difficult issue of the application of the co-conspirators’ exception in this case. I would offer this possible outline that may be of assistance. In my view, the first step in giving instructions in this case is to draw a clear distinction between the elements of the offence as charged in the indictment and the conspiracy allegation for the purpose of the evidentiary rule. In other words, this is not the kind of case where the co-conspirators’ exception instructions should be integrated into the instructions on proof of the conspiracy.[^4] Thus, the trial judge may first wish to deal with elements of the offence as charged in the indictment, namely the conspiracy to traffic in cocaine between April 6 and June 7, 2006.
[56] The trial judge could then consider turning to the evidentiary rule by informing the jury that a special rule of evidence applies in conspiracy cases and that the prosecution relies on this rule to attempt to prove the offence charged in the indictment. The trial judge would then instruct the jury that in this case Crown counsel alleges that the appellant conspired with Christodoulou from April 13 to October 24, 2006 to traffic in cocaine. Crown counsel makes this allegation because they wish to have the jury rely on hearsay conversations between Atwell and Christodoulou after June 7 to prove that the appellant is a member of the conspiracy alleged in the indictment. Ordinarily, those conversations would not be evidence against the appellant because he was not present during those conversations. Before Crown counsel is entitled to use those conversations to prove the case against the appellant, the jury must make a number of special findings of fact.
[57] First, the jury must be satisfied beyond a reasonable doubt that a conspiracy existed from April 13 to October 24, 2006. In making this finding the jury can use all of the evidence, including the June and October conversations when the appellant was not present. However, in making that finding, the jury has not determined whether the appellant was, in fact, a member of the conspiracy alleged in the indictment. This is because the jury may have used hearsay evidence, which may or may not be admissible against the appellant. Whether the jury can use the hearsay evidence depends on two further findings of fact. (The trial judge may, as suggested in Viandante at para. 50, wish to give the jury a simple example along the lines of the example used in Barrow. On the other hand, the judge might feel that to do so would complicate matters unnecessarily.)
[58] The first of two findings the jury must make before using the June and October hearsay conversations when the appellant was not present is whether the appellant has been shown to probably be a member of the April to October conspiracy. This finding must be based on the evidence that is directly admissible against him. At this point the judge would outline this evidence, which primarily consists of the comments attributed to him by Atwell in the conversations on April 13, April 20 and June 6. The judge would remind the jury that two of these conversations were not recorded and that Christodoulou gives a very different version of those conversations. The judge would also expressly warn the jury that in making this interim finding of probable membership, they must not use the hearsay evidence of the conversations between Christodoulou and Atwell in June and October when the appellant was not present. If the jury finds that the appellant was probably a member of the April to October conspiracy they will then go on to decide whether to make the second of the two findings.
[59] If the jury finds that the appellant is probably a member of the April to October conspiracy, it can then use the hearsay statements in June and October to decide whether the appellant has been proved beyond a reasonable doubt to be guilty of the conspiracy alleged in the indictment, provided the jury makes a second finding of fact, namely that those statements were in furtherance of the April to October conspiracy. The trial judge would then explain the “in furtherance” requirement and isolate for the jury the particular conversations upon which the prosecution relies as being in furtherance of the conspiracy.
[60] Finally, if the jury makes all of the necessary findings, they may use the in furtherance statements made in June and October by Christodoulou, or those made by Atwell that Christodoulou adopted, to decide whether they are satisfied beyond a reasonable doubt that the appellant is a member of the conspiracy alleged in the indictment. The judge will want to remind the jury of the theory of the defence; that Christodoulou was simply using the appellant’s name for his own purposes to sell drugs on his own account to Atwell and that the appellant did not conspire with Christodoulou. If the jury does not make the necessary findings to trigger this special evidentiary rule, they must ignore the June and October conversations where the appellant was not present and decide the case on the basis of the other evidence.
DISPOSITION
[61] In my view, this is not a proper case to apply the proviso in s. 686(1)(b)(iii) of the Criminal Code. Crown counsel at trial spent considerable time with both Atwell and Christodoulou on the post-June 7 conversations. As I have said, those conversations were fully recorded and their probative value did not suffer from the frailty of the unrecorded pre-June 7 recordings that depended on the reliability and truthfulness of Atwell. The jury was not properly directed as to how to use those conversations. Further, the directions on stage one of Carter were prejudicial to the appellant. I agree with what the Manitoba Court of Appeal said in Viandante at para. 53: “The jury may well have been confused by the application of the Carter three-step process without appropriate modifications to fit a two-person conspiracy.”
[62] Finally, in my view, there must be a new trial on both the conspiracy charge and the substantive charge of trafficking. The Crown relied on the same body of evidence on both charges since its theory was that the June 7 transaction was simply part of the overall conspiracy. For example, in explaining the Crown’s theory, the trial judge said this:
In each of these occasions [the June 26, October 18 and October 24 meetings between Christodoulou and Atwell], they discussed future sales of drugs and confirmed in one manner or the other Mr. Bogiatzis’ role in the sale of the one kilogram of cocaine completed on June 7, 2006.
[63] Accordingly, I would allow the appeal, set aside the convictions and order a new trial.
Signed: “I agree Winkler C.J.O.”
“M. Rosenberg J.A.”
“I agree Pitt J. (ad hoc)”
RELEASED: “MR” December 24, 2010
[^1]: By this, the Carter court obviously meant hearsay that is only admissible under the co-conspirators’ exception to the hearsay rule. Other hearsay exceptions might well come into play at this stage, the most obvious being admissions made by the accused to the police or others.
[^2]: Per McIntyre J. Although, McIntyre J. dissented on other grounds, all members of the court agreed with his analysis of the co-conspirators’ exception issue. See reasons of Dickson C.J. for the majority at p. 722.
[^3]: If this court were free to depart from the Carter formula in a two-person conspiracy one solution would be the following. The judge would determine a modified stage one question by deciding, on the basis of all the evidence, whether there was some evidence upon which a trier of fact could decide beyond a reasonable doubt that a conspiracy existed. If the judge decided the stage one question in favour of the Crown, the judge would put the stage two and stage two questions to the jury. The judge would not, of course, tell the jury that the existence of the conspiracy had been established beyond a reasonable doubt and thus potentially pre-empting their factual decision about the accused’s probable membership. Also see R. v. Comeau, 1991 3541 (QC CA), [1992] R.J.Q. 339 (C.A.) affirmed on other grounds, 1992 47 (SCC), [1992] 3 S.C.R. 473 and discussed in Viandante at pp. 361-62.
[^4]: As for example is suggested in David Watt, Watt’s Manual of Criminal Jury Instructions (Toronto: Thomson Carswell, 2005) at pp.105-106, 228-29 and 746-51.