COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Kaizer, 2013 ONCA 546
DATE: 20130911
DOCKET: C55578
Goudge, Simmons and Tulloch JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Christopher Kaizer
Respondent
Geoffrey Roy, for the appellant
Michael Dineen, Duty Counsel
Heard: March 11, 2013
On appeal from the acquittal entered on May 17, 2012 by Justice James E. McNamara of the Superior Court of Justice, sitting without a jury.
Tulloch J.A.:
OVERVIEW
[1] The appellant, the Federal Crown, appeals against the acquittal of the respondent, Christopher Kaizer, on nine drug-related charges including conspiracy to traffic cannabis and marijuana, and possession of cannabis and marijuana for the purpose of trafficking.
[2] The respondent was pulled over by the police and arrested shortly after a man named Andrew Wall was seen by police surveillance officers placing a duffle bag containing drugs into the trunk of the respondent’s parked car. The trial judge accepted the position of the defence that the Crown failed to prove that the respondent knew that there were drugs in the duffle bag. As a result, the respondent was acquitted on all charges.
[3] The Crown appeals the acquittals on the following grounds:
The trial judge erred in his application of the co-conspirator’s exception to the hearsay rule by requiring that the Crown prove the respondent’s participation in the conspiracy beyond a reasonable doubt at stage one of the Carter[^1] test; and
The trial judge erred by applying the reasonable doubt standard to individual pieces of evidence tendered by the Crown, as opposed to determining whether, on the whole of the evidence, the Crown had proven “possession for the purpose” beyond a reasonable doubt
[4] For the reasons that follow, I do not agree with the appellant’s submissions, and as a result, I would dismiss the appeal.
THE FACTS
[5] The charges in this case arose out of an R.C.M.P. investigation called “Project A-Wire”. The R.C.M.P. had established, through intercepted communications and other techniques, that three individuals, Andrew Wall, Troy Saikaley, and someone by the name of Sarsfield, were involved in a drug distribution ring. The respondent was not implicated during the course of the initial investigation.
[6] The investigation of these three individuals led the R.C.M.P. to an apartment that was used as a “stash house”, and which was located at 1380 Prince of Wales Drive in the City of Ottawa. Under the authority of a general warrant and wiretap authorization, the police executed a surreptitious search of apartment 210 at that address, and installed a probe to intercept communications. Inside the apartment, police found significant amounts of what they suspected to be cocaine. The police learned, through intercepted communications, that Wall was planning to leave the country on November 6th, 2009, so they decided to arrest Wall and Saikaley on November 5th, 2009.
[7] On November 5th, 2009, as the R.C.M.P. were about to take down the project, they intercepted a call made between Saikaley and the respondent at 2:21 p.m.
[8] On the call, the respondent and Saikaley arranged to meet outside Saikaley’s hair salon, known as Suite Thirteen. The lead investigator, Officer Goyer, sent two officers to observe that meeting. One of the officers saw the respondent and Saikaley meet for about thirty seconds in the parking lot outside Suite Thirteen. Saikaley walked out of the salon, met with the respondent, and then they both walked toward Saikaley’s car to speak. Then Saikaley and the respondent drove off in their respective cars.
[9] About fifteen minutes later, Saikaley called Wall to find out if he was alone. Saikaley told Wall that he was “literally” downstairs, and would be up in a couple of minutes. Shortly afterwards, another officer saw Saikaley’s car pull into the parking lot of 1380 Prince of Wales Drive, and go towards the back of the building. The same car left the parking lot about fifteen to twenty minutes later.
[10] While Saikaley and Wall were inside the building, the probe inside of apartment 201 intercepted a conversation between them. The conversation started at 3:15 p.m. and lasted approximately eleven minutes. In the middle of the conversation, the following exchange occurred:
T. Saikaley: Do I have her number?
A. Wall: Yeah.
T. Saikaley: Let’s make sure, now what’s his name downstairs?
A. Wall: Who’s that?
T. Saikaley: Uh….
A. Wall: That guy.
T. Saikaley: _____ guy…
A. Wall: Jay McDougal (ph)?
T. Saikaley: I want you to give him uh, two bags of, two plates of big bags, I told him he could pay for them later. I said (incomprehensible). A pack in his _____.
A. Wall: O.K.
T. Saikaley: And get him two he’s getting two, uh, pen of uh, GH.
[11] It is this hearsay conversation, referencing giving “him” two bags, that the Crown submits the trial judge erred in failing to consider when determining whether the respondent, Christopher Kaizer, was, beyond a reasonable doubt, a part of the conspiracy.
[12] While this conversation was taking place in the apartment, another officer observed Saikaley’s vehicle in the parking lot. Approximately ten minutes later, the officer saw Wall walk out of 1380 Prince of Wales Drive carrying a green duffle bag. He walked over to the respondent’s car and the car trunk opened, at which time Wall placed the duffle bag into the trunk of the respondent’s car.
THE TRIAL JUDGE’S REASONS
[13] After reviewing the evidence at trial, the trial judge set out the positions of the parties. The position of the defence was that the Crown had failed to prove knowledge beyond a reasonable doubt. The position of the Crown was that the only reasonable inference arising from the proven facts was that the respondent knew what was being put in the trunk.
[14] The trial judge accepted that the starting point for his analysis was the element of knowledge. He said:
To have the necessary mens rea for any of the offences charged, the Crown must establish beyond a reasonable doubt that [the respondent] had knowledge that what was placed in his truck that day were the drugs. Without that knowledge, in my view, there is insufficient evidence by which the Crown can establish beyond a reasonable doubt the first essential element set forth by the Supreme Court of Canada in R. v. Carter, namely that there was a common agreement to affect an unlawful purpose as relates to the conspiracy charges, nor without that knowledge is there evidence to support a finding of guilt beyond a reasonable doubt with relation to the balance of the charges in the indictment. [Emphasis added.]
[15] The trial judge then went on to review the facts and assess the available inferences. He concluded that, while suspicious, the facts were not sufficient to establish proof beyond a reasonable doubt:
Those proven facts establish that for a relatively brief period of time prior to the events of November 5th, 2009, there was communication between Saikaley and the [respondent]. It consisted of both the verbal and the text communications entered in evidence. Not once in the course of those communications is the word, drugs, or anything else ever mentioned. Next, there is no evidence of what was discussed in the very brief conversation on November 5th, in front of Suite Thirteen. While we don’t know why the two of them met, there is evidence that [the respondent] owed Saikeley some money. Next, and significantly, despite all the surveillance at 1380 Prince of Wales, the [respondent] is never seen there prior to the day in question, nor is there any evidence he knew this was a stash house. Further, there is no evidence he knew Saikeley and Wall were allegedly in the drug business. Finally, there is no fingerprint evidence connecting [the respondent] with the drugs. There is the evidence of the bag being placed in the trunk. I am not persuaded, however, that the only reasonable inference to be drawn from the particular proven facts in this case is that [the respondent] knew the bag contained drugs. There is absolutely nothing else connecting him with these drugs. Inferences must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other fact which it is sought to establish. With the presumption of innocence in mind, the evidence, although suspicious, is consistent with other inferences.
ANALYSIS
[16] Before considering the basis for the Crown’s appeal, a few facts bear noting. First, the respondent was not a subject of the police investigation when the search warrant was issued, and the respondent had not been seen in any of the surveillance leading up to the search warrant. The respondent was not heard on any of the intercepted communications. Up until shortly before his arrest, the respondent was not even “on the radar” with regard to the drug offences.
(1) Did the trial judge err in his application of the co-conspirator’s exception to the hearsay rule?
[17] The Crown points out that counsel for the respondent conceded that a conspiracy existed, at least as between Wall and Saikaley. As a result, the first step of the co-conspirator’s exception to the hearsay rule, namely that the trier of fact must first be satisfied beyond a reasonable doubt that the alleged conspiracy in fact existed, had been conceded: R. v. Carter.
[18] Because of that concession, the Crown submits that the trial judge erred when he stated “without that knowledge [of the drugs], in my view, there is insufficient evidence by which the Crown can establish beyond a reasonable doubt the first essential element set forth by the Supreme Court of Canada in R. v. Carter, namely that there was a common agreement to affect an unlawful purpose as relates to the conspiracy charges, nor without that knowledge is there evidence to support a finding of guilt beyond a reasonable doubt with relation to the balance of the charges in the Indictment.”
[19] The Crown contends that, as a result of this error, the trial judge erred in failing to consider the second and third steps of the Carter test. Had he done so, he would inevitably have concluded, based on the evidence directly admissible against the respondent, that the respondent was probably a member of the conspiracy (step two of Carter), and further, based on all the evidence, including the hearsay statement of the alleged co-conspirators, that the respondent was a member of the conspiracy beyond a reasonable doubt (step three of Carter).
[20] I acknowledge that, the trial judge erred in stating that there was insufficient evidence to establish the first element of the Carter test – which is that a conspiracy existed. As I have said, that issue was conceded.
[21] However, even assuming the trial judge would have reached the conclusion, at the second step of the Carter test, that the respondent was probably a member of the conspiracy based on the evidence directly admissible against him, I am not persuaded that the hearsay statement the Crown relies on would have changed the result in this case.
[22] The hearsay conversation the Crown relies on was, at best, ambiguous as to whether it implicated the respondent. While the conversation did reference the delivery of drugs, which was followed immediately thereafter by the placing of the drugs in the respondent’s car, the conversation is also reasonably capable of meaning that the drugs were to be delivered to someone with a name different from that of the respondent. The trial judge concluded his reasons by noting that “the evidence, although suspicious is consistent with other reasonable inferences.” In my view, there is no basis for concluding that the ambiguous hearsay conversation relied on by the Crown would likely have changed that result.
[23] The Crown has not met the heavy onus it faces on appeal, to satisfy this court that there is a “reasonable degree of certainty” that the outcome of the trial would have been different but for an error of law: R. v. Youvarajah, 2013 SCC 41, at para. 32, R. v. Berbeck, 2013 ONCA 241, at para. 14. Accordingly, I would not give effect to this ground of appeal.
(2) Did the trial judge err in his application of the reasonable doubt standard?
[24] The Crown’s second ground of appeal is that the trial judge erred by individually discounting several pieces of the evidence against the respondent. In effect, the Crown submits that rather than considering the totality of the evidence when determining if the Crown met its burden, the trial judge improperly applied a reasonable doubt standard to each piece of evidence.
[25] A review of the entire reasons of the trial judge indicates that this was not the case. The trial judge stated “The position of the Crown on the knowledge issue is that on an examination of the evidence as a whole, it is proven beyond a reasonable doubt”. The trial judge was cognizant of the proper test to be applied, but merely pointed out the frailties in the Crown’s case, such as the facts that the respondent had not been involved in the prior surveillance or intercepted communications, that there was no fingerprint evidence connecting the respondent with the drugs, and that there was no reference to drugs in any of the communications between Saikaley and the respondent.
[26] As a result of the foregoing, I do not find that the trial judge erred in his consideration of the evidence and I would not give effect to this ground of appeal.
DISPOSITION
[27] Based on the foregoing reasons, I would dismiss this appeal.
Released: “STG” September 11, 2013
“M. Tulloch J.A.”
“I agree. S.T. Goudge J.A.”
“I agree. J.M. Simmons J.A.”
[^1]: R. v. Carter. 1982 35 (SCC), [1982] 1 S.C.R. 938.