Court of Appeal for Ontario
Date: 20220321 Docket: C66911
Lauwers, Pardu and Sossin JJ.A.
Between
Her Majesty the Queen Respondent
and
Akshay Prasad Appellant
Counsel: Ravin Pillay, for the appellant Kelvin Ramchand, for the respondent
Heard: March 8, 2022 by video conference
On appeal from the conviction entered on December 20, 2018 and the sentence imposed on May 23, 2019 by Justice David Salmers of the Superior Court of Justice.
Reasons for Decision
[1] The appellant was convicted and sentenced for two counts of trafficking cocaine. The appellant pursued the conviction appeal and abandoned the sentence appeal. The appellant largely contested the trial judge’s factual findings, to which this court owes great deference. We dismiss the appeal for the reasons that follow.
(1) The Factual Context
[2] In February 2015, as part of a drug enforcement investigation, police obtained an authorization to intercept the private communications of targets, including Xue Zhong Zhou. On March 18, 2015, the appellant and Zhou met in Zhou’s vehicle for over 20 minutes. Surveillance officers observed the meeting. An audio probe installed in the vehicle recorded the conversation. On March 19, 2015, the appellant briefly met with Anthony Leung and Cuong Lang, who were alleged to be Zhou’s associates, to take delivery of the drugs.
[3] On April 9, 2015, the appellant and Zhou met again in Zhou’s vehicle. Surveillance officers also observed this meeting, which was recorded by an authorized probe.
(2) The Conviction and the Trial Judge’s Findings
[4] The appellant was charged with two counts of trafficking cocaine relating to March 19, 2015 (count one) and to April 9, 2015 (count two). The trial judge found the appellant guilty on both counts.
[5] On count one, the trial judge found that the recorded March 18, 2015 conversation established proof beyond a reasonable doubt of the essential elements of trafficking by offer. Before March 18, 2015, police surveillance officers had observed Zhou and the appellant multiple times. On March 18, 2015, officers saw Zhou in his vehicle and watched the appellant enter the vehicle. They were the only occupants. The appellant admitted the integrity of the observations, and of police video recordings and photographs.
[6] The trial judge agreed that the original recordings on their own were not sufficiently intelligible to be admissible. However, digitally enhanced versions of each recording were prepared by a lay expert, and transcripts were prepared from them.
[7] The trial judge, therefore, found that the appellant and Zhou were the only speakers recorded in the March 18, 2015 conversation. Officer Chris Aiello had listened to Zhou’s voice on intercepted communications and testified that the transcripts correctly identified when Zhou and the appellant were each speaking. Officer Ryan Connolly was qualified and testified as an expert in the use and sale of cocaine. Relying on the original and clarified recordings, the transcripts, and Officer Connolly’s evidence, the trial judge found that the only reasonable inference that could be drawn from the March 18, 2015 conversation was that, after negotiations, the appellant offered to sell a kilogram of cocaine to Zhou for $53,000 and that he intended the offer to be taken seriously by Zhou.
[8] The trial judge did not accept the Crown’s theory that the cocaine was delivered on March 19, 2015. The trial judge held that intercepted communications from March 19, 2015, to which the appellant was not a party, were not admissible as hearsay either under the co-conspirator’s exception or as narrative. Without those communications, the evidence was insufficient to establish that cocaine was delivered during the March 19, 2015 meeting between Leung and the appellant.
[9] On count two, the trial judge found that the conversation between the appellant and Zhou that took place on April 9, 2015, established proof beyond a reasonable doubt of the essential elements of trafficking by offer. The appellant entered Zhou’s vehicle and they were the only occupants. They negotiated a cocaine purchase transaction using phrases used in the drug trade when talking about cocaine powder and discussing prices that could only have been applicable to a cocaine purchase, based on the expert evidence. The only reasonable inference was that the appellant offered to sell Zhou nine ounces of cocaine for $13,000 or four and a half ounces for $6,500, and that he intended the offer to be taken seriously by Zhou.
(3) Issues on Appeal
[10] The appellant’s arguments cluster around three issues. The first is the trial judge’s admission and use of the audio recordings and their transcripts. The second is that the expert evidence regarding the content of the recorded conversations was not clearly related to cocaine, making the conviction unreasonable. The third is that the trial judge convicted on an alternative theory of liability not advanced by the Crown, not raised with counsel, and which the appellant did not have the opportunity to address.
(a) The Audio Recordings
[11] The appellant applied to have the audio recordings of March 18, 2015 and April 9, 2015 excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms. Salmers J. dismissed the Garofoli application on October 25, 2017, finding that the appellant had not satisfied him that there was no basis for issuing the authorization to intercept communications, and as such, had not proven a s. 8 breach. The appellant also applied to have the March 18, 2015 and April 9, 2015 audio recordings of the intercepted communications excluded from evidence because of their poor quality, which inferentially meant that their prejudicial effect exceeded their probative value. The trial judge dismissed the application, finding that the recordings were relevant and, depending on all of the other evidence, might have significant probative value.
[12] As noted, the trial judge agreed that the original recordings on their own were not sufficiently intelligible to be admissible. However, digitally enhanced versions of each recording were prepared by a lay expert, and transcripts were prepared from them.
[13] The appellant referred to the expert evidence and the possibility that words were lost in the enhancement, or “clarification” exercise. The expert agreed that the digital filter he used to reduce noise could remove some audible sounds, particularly within the range of the human voice. But that did not happen in this case, as the trial judge found. He listened to the original and clarified recordings and found that the clarified recordings were virtually identical to the original recordings, and that there were no additional or deleted portions of speech in the clarified recordings. We see no error in this finding.
[14] The appellant argues that the trial judge impermissibly relied on the evidence of the transcript typist, Christine Solsky, whose evidence on the voir dire was by agreement not admissible as trial evidence. We do not agree that the trial judge used Ms. Solsky’s evidence that way, as becomes clear from the discussion that now follows.
[15] The appellant raises an argument about sufficiency of reasons related to this statement by the trial judge:
[T]ranscripts were made of the enhanced or clarified recordings and those transcripts were useful to me when trying to determine what Zhou and Mr. Prasad were saying in the intercepted March 18, 2015 conversation. The transcripts of the enhanced or clarified recordings were prepared by Christine Solsky, a civilian police employee. Prior to preparing the transcripts, she was told that the speakers were Zhou and Mr. Prasad. Prior to preparing the transcript, Ms. Solsky heard Zhou’s voice on recordings from the police media library. Zhou and Mr. Prasad have different voices and speak English with different accents. Ms. Solsky testified that although it was sometimes difficult, she could tell which of Zhou or Mr. Prasad was speaking in the recordings. In her preparation of the transcripts, Ms. Solsky listened to the recordings many times to attempt to determine what was spoken and by whom.
…I also listened many times to the recordings. Almost, but not always, I agreed with Ms. Solsky’s transcripts identifications of the speakers and what was said. When I found any differences between the recordings and the transcripts, either about what was said or by whom, I relied on what I heard in the recordings when deciding this case.
Related to the preceding argument, the last quoted paragraph makes it abundantly clear that the trial judge did not rely substantively on Ms. Solsky’s evidence.
[16] The difficulty, asserts the appellant, is that the trial judge did not set out in his reasons the differences he found between the transcripts and his own interpretation of the audio, which accordingly prevents meaningful appellate review. While it would have been preferable for the trial judge to have noted the differences, we draw the inference that the differences were neither numerous (“Almost, but not always, I agreed…”), nor material, or he would have identified and highlighted them. The argument on sufficiency of reasons fails. It would have had more force if the appellant had identified places where the transcripts and the enhanced recordings might have led to confusion, but he did not. We infer that there were none.
(b) An Unreasonable Verdict
[17] The appellant argues that the drug-related lingo used by the appellant and Zhou in their discussions could not unambiguously be related to cocaine. Counsel pointed to several passages to suggest that some other drug was also under discussion. The trial judge relied on the expert evidence of Officer Connolly, whom he qualified as an expert and who has testified on the subject many times.
[18] The trial judge relied on Officer Connolly’s testimony, and found:
[D]uring the March 18th, 2015 conversation, Zhou and Mr. Prasad began talking about drug trafficking almost immediately after Mr. Prasad entered Zhou’s Honda Accord. They discuss money owing by Zhou to Mr. Prasad. Several times during the conversation they used the words, ‘key’, and ‘brick’, very commonly used in the drug trafficking subculture to describe a kilogram of powder cocaine. The words were used in a context where the only reasonable inference is that Zhou and Mr. Prasad were discussing cocaine.
[19] An important part of the context was the price discussed in the conversations on March 18 and on April 9. These are factual findings to which this court owes great deference. The appellant has not established that the trial judge made any errors in the assessment of the expert evidence as applied to the evidence about the transactions between Zhou and the appellant. We do not find the verdict unreasonable.
(c) The Alternative Theory of Liability
[20] The appellant argues that the trial judge convicted on an alternative theory.
[21] On count one, the trial judge convicted, stating:
For all of those reasons, the evidence has been proven beyond a reasonable doubt that Mr. Prasad committed the offence of trafficking cocaine by offer to Zhou on March 18th, 2015. In particular, on that day Mr. Prasad offered to traffic a kilogram of cocaine to Zhou for $53,000 and he made that offer intending that it would be taken seriously by [Zhou]. Count one [has] been proven beyond a reasonable doubt.
[22] Count one on the indictment referred to trafficking on or about March 19, 2015:
THAT Akshay PRASAD, on or about the 19th day of March in the year 2015 at the City of Toronto in the Toronto Region did traffic in a substance included in Schedule I of the Controlled Drugs and Substances Act, to wit: cocaine, thereby committing an offence contrary to Section 5(1) of the Controlled Drugs and Substances Act.
[23] The appellant argues that it was fundamentally unfair for the trial judge to give effect to an alternative theory of liability not advanced by the Crown, not raised with counsel, and which the appellant did not have the opportunity to address. He puts the argument in his factum in the following manner:
The appellant respectfully submits that he was caught by surprise by the trial judge’s finding and could not have foreseen a conviction on the day prior to the date set out in the indictment based on an offer. All parties conducted the trial on the basis that the Crown theory was that count 1 alleged the trafficking of one kilogram of cocaine on March 19th to Leung. Many decisions were made during the course of the trial based on that theory presented. For example, the defence made numerous concessions, abbreviated cross-examinations and, importantly, opted not to call a defence.
[24] In questioning from the bench, the appellant was unable to say how the defence would have differed had the focus been on the offer on March 18 rather than on the alleged delivery on March 19.
[25] The Crown pointed out that the indictment’s charging language for both counts is the same: “did traffic in a substance”. The charge covers the whole of the transaction and one continuous chain of events. Just as the offer alone was sufficient to support the finding that the appellant committed the offence by offer on April 9, so it was to commit the offence by offer alone on March 18, even if the delivery on March 19 was not proven. The Crown noted that the appellant did not request particulars of the charges before the trial. Further, the Crown referred to the offer to traffic several times in submissions to the trial judge, so it was no surprise to the defence. Trial defence counsel stated: “the Crown… will say, ‘well this is an offer, and it’s an offer for something that happened on the 19th’”.
[26] The offer was plainly made on March 18, 2015, which in itself completes the offence of trafficking. We are unable to discern any prejudice to the appellant in the trial judge’s conviction respecting the offer on March 18, despite the different date specified in the indictment. It was a continuous chain of events starting on March 18. Consummation by delivery on March 19 was not an essential element.
[27] The appeal is dismissed.
“P. Lauwers J.A.”
“G. Pardu J.A.”
“L. Sossin J.A.”