Court File and Parties

Ontario Court of Justice

Date: 2016-06-13

Court File Nos.: 13-12774, 13-11230, 14-2751

Between:

Her Majesty the Queen

— and —

Drago Jankovic and Salvatore Formusa

Before: Justice P. F. Band

Ruling as to Admissibility of CBSA Travel Histories re. Drago Jankovic as Business Records at Common Law

Released on: June 13, 2016

Counsel

Mr. C. Walsh — counsel for the D.P.P.

Mr. G. Sternberg — counsel for the accused Mr. Jankovic

Mr. P. Cooper — counsel for the accused Mr. Formusa

BAND J.:

I. INTRODUCTION & ISSUE

[1] The Crown applied for a ruling that two travel history documents relating to a traveler named Drago Jankovic, produced by the Canadian Border Services Agency ("CBSA"), were admissible in this trial. They reveal that a Drago Jankovic arrived at Pearson International Airport ("Pearson") on a flight from Amsterdam during the evening of August 23, 2013.

[2] The Crown did not comply with the pertinent sections of the Canada Evidence Act. It therefore relied on the common law business records exception to the rule against hearsay.

[3] The Crown called two CBSA officers - Jeff Wyatt and Kenneth Kirkpatrick – who testified on this issue. The matter was dealt with by way of blended voir dire within the trial, and the parties filed written submissions.

[4] He argued that the documents are admissible on either, or both, of the following bases:

(i) they were made in the ordinary course of business by those charged with the responsibility of making such records; or

(ii) they are necessary and reliable.

[5] On behalf of Mr. Jankovic, Mr. Sternberg argued that the documents are inadmissible for three reasons:

(i) The documents represent an unlawful search in contravention of ss. 8 and 9 of the Charter of Rights and Freedoms; and

(ii) The records have no probative value because they do not reveal the commission of an offence, a conspiracy or attempt to commit an offence, or the making of a false statement; and

(iii) Officers Wyatt and Kirkpatrick are "too far removed [in time] from the making of the original records in question" and therefore "lacked personal knowledge of the prerequisite facts in the time period when the events were purportedly recorded."

[6] Counsel for Mr. Avanes and Mr. Formusa took no position on the issue.[1]

[7] I previously granted the Crown's application, with reasons to follow. These are my reasons.

II. THE CHARTER ARGUMENT

[8] Mr. Sternberg abandoned this argument.

III. RELEVANCE/PROBATIVE VALUE OF THE TRAVEL HISTORIES

[9] On August 10, 2013, a shipping container arrived at the port of Halifax, where its contents were searched by CBSA officers. They found approximately 50 kg of cocaine secreted within the cargo. The evidence shows that Mr. Formusa was the person responsible for bringing the container into Canada with the assistance of Willson International, a customs brokerage business. Mr. Formusa was also responsible for having it routed to its final destination, a warehouse in Vaughan, Ontario, where it arrived on August 25, 2013. He and Mr. Avanes were arrested at the warehouse later that day.

[10] The RCMP's investigation involved a number of steps including wire taps of Mr. Formusa's phone, production orders, surveillance and a controlled delivery of the container.

[11] Those investigations revealed that during the time leading up to the arrival of the container, Mr. Formusa had been involved in telephone calls and other communications with three numbers of interest in this matter: (647) 708-0067, (647) 607-8745 and (647) 289-2094. The documents obtained by production orders reveal that the first two numbers were issued to Richard Avanes, and the third to a Drago Jankovic.

[12] The evidence in this matter is extremely voluminous. For the purposes of this ruling, a few examples drawn from it will suffice.

[13] In a phone call intercepted on Mr. Formusa's line on August 26, 2013, a male speaking from (647) 289-2094 advises that he returned from Europe "yesterday": see Exhibit 55B, Tab 56.

[14] Text messages between Mr. Formusa and (647) 607-8745 refer to a "Drago".

[15] In an email to Willson International, dated August 17, 2013, Mr. Formusa requested that the container be delivered to the warehouse in Vaughan. In that email, he advised that the client was a Drago Motors.

[16] As the Ontario Court of Appeal wrote in R. v. Ansari,

to be relevant, an item of evidence need not prove conclusively the proposition of fact for which it is introduced. Nor does the evidence, to be relevant, need to make the proposition of fact more probable than not. An item of evidence is not irrelevant simply because it can sustain more than one inference. The requirement of relevance is met where the item of evidence reasonably shows, "by the application of everyday experience and common sense[,] that the fact is slightly more probable with the evidence than it would be without it."[2]

[17] When read in the context of the evidence as a whole, the travel histories are relevant to, and probative of, the question whether the accused, Drago Jankovic, was involved in the importation of the cocaine and whether he was a member of a conspiracy to do so.

IV. ADMISSIBILITY AS BUSINESS RECORDS AT COMMON LAW

(1) Facts

[18] CBSA Officer Kirkpatrick worked for the CBSA as a primary inspection line officer at Pearson from 1997 to 2007. Since 2007, he has been in the Intelligence Division of the CBSA. He generated the printouts of the two travel histories at the request of the officer in charge of the investigation. One is referred to as an "ICES Traveller History" and the other as an "ICS Traveller Query."

[19] As a primary line officer, he would receive customs declaration cards and identification from passengers arriving in Canada. At that time, he would have dealt with 400-600 passengers in a night. Each interaction would last between 15 and 60 seconds.

[20] He would then scan or manually enter their identifying documents into a database known as the Integrated Customs Enforcement System, or "ICES."

[21] The purpose of ICES is to create a record of all passengers arriving into Canada. Its records go back to 2000. Only CBSA officers have access to them. They do so with a user ID and password.

[22] It is the duty of primary line officers to ensure that passengers' identifying documents are scanned or entered into ICES, and they can be disciplined for not doing so. The rule at Pearson is of "100% accountability."

[23] That system has changed since the advent of Automated Border Control Machines ("ABC machines"). At these machines, which resemble ATMs, passengers scan their own identification documents and customs cards. The information is uploaded to ICES. The machine also provides passengers with a copy of their customs card. Each and every passenger must be seen by at least one CBSA Officer prior to being free to leave the secure area.

[24] According to CBSA Officer Kirkpatrick, that procedure was followed in this case as "ABC" is noted on the ICES document.

[25] Officers access the database for a number of reasons including keeping records of seizures and many intelligence activities.

[26] Since 2010, the CBSA has also had a database known as the Integrated Compliance System ("ICS"). According to CBSA Officer Kirkpatrick, its data originates from the airlines, which are under an obligation to transmit traveller information as soon as a flight's wheels are up.

[27] The purpose of ICS is to allow the CBSA to know who is on an incoming flight. Access to it is similarly limited. CBSA Officer Kirkpatrick has accessed ICS while a flight was still in the air when intelligence was received concerning a passenger.

[28] CBSA Officer Wyatt testified that he uses ICS on a daily basis in relation to his duties. He also explained that passengers must report information through customs declaration cards.

[29] While no officer testified as to the requirement to provide a passport or identification to customs upon arrival at Pearson or any other international airport in 2013, this can hardly be controversial.

(2) Governing Legal Principles

[30] In Ares v. Venner, [1970] S.C.R. 608, the Supreme Court of Canada explained that

Hospital records, including nurses' notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein. This should, in no way, preclude a party wishing to challenge the accuracy of the records or entries from doing so.[3]

[31] This exception has been broadened to apply to records generally.[4] In R. v. Monkhouse, infra, the Alberta Court of Appeal also broadened the criteria of admissibility. Where the recorder of the information has a duty to act, that person need not necessarily have personal knowledge of the event recorded. Also, "where an established system in a business or organization produces records which are regarded as reliable and customarily accepted by those affected by them, they should be admitted as prima facie evidence."[5]

[32] In R. v. C.L. (1999), 138 C.C.C. (3d) 356 at para. 15, the Ontario Court of Appeal regarded as necessary and reliable medical records where:

• it was unrealistic to expect hospital personnel to recall the events recorded;

• the records were kept in the ordinary course of business procedure;

• there was no motive not to faithfully record what had been said; and

• those who made false records could be disciplined for doing so.

[33] The Crown's factum refers to various pieces of legislation that require, under penalty of law, the airlines and passengers to provide information to the relevant authorities.

(3) Application of the Law to the Facts

[34] Based on the evidence of CBSA Officer Kirkpatrick, I am satisfied that the travel history documents meet the business records exception at common law. The data was uploaded into ICS contemporaneously upon receipt from the airline and into ICES by the traveler using an ABC machine at Pearson. Both were done in the ordinary routine of business. The airline was under a duty to do so. The passenger, upon arrival, was under a duty to produce documentation – to CBSA Officers or to the ABC machine – and the CBSA was required to ensure passenger compliance and save the data to its database.

[35] Neither the airline nor CBSA Officers had a motive to falsify the data. To the contrary, both could face serious consequences for doing so. Likewise, passengers are under an obligation to provide truthful information to CBSA officers.

[36] In addition, I find that the documents meet the requirements of necessity and reliability. Based on the evidence of CBSA Officer Kirkpatrick, it would be unrealistic in the extreme to expect any CBSA Officer to recall the transaction at issue here. The necessity criterion has therefore been met.

[37] The data from the travel documents is scanned directly by the ABC machine or, where this is not available or possible, by a CBSA Officer manually. There is no realistic concern that the record is inaccurate.

[38] The airline and CBSA officers were both under an enforceable duty to provide and record the data. CBSA officers access the records in ICS and ICES in the course of their duties and treat them as reliable.

[39] The records therefore meet the criterion of reliability.

[40] I am also satisfied that CBSA Officers Kirkpatrick and Wyatt are knowledgeable about the databases to which they have access. CBSA Officer Kirkpatrick also has extensive experience with the processing of passengers at Pearson. While the process was changed somewhat by the advent of ABC machines, it remains essentially the same: information is received from passengers and uploaded into CBSA databases. The method by which data is received from airlines and stored in ICS remains unchanged.

[41] The argument that CBSA Officers Kirkpatrick and Wyatt are too far removed in time from the creation and recording of the documents is without merit. First, it is simply not the case, given their combined knowledge and experience within the very institution in which the records are created, stored and accessed.[6] Second, such an argument runs contrary to the modern rationale for the exception.

V. CONCLUSION

[42] For the foregoing reasons, the travel histories currently marked as Exhibits A and B are admitted as evidence in this trial. They will be remarked as numbered exhibits.

Released: June 13, 2016

Justice P. F. Band

Footnotes

[1] The prosecution of the present charges against Mr. Avanes has since been discontinued by the Crown as a result of a resolution that took place in another jurisdiction.

[2] 2015 ONCA 575, [2015] O.J. No. 4355, at para. 104

[3] At p. 10, QL

[4] R. v. Monkhouse (1987), 1987 ABCA 227, 61 C.R. (3d) 343 (Alta. C.A.)

[5] Ibid, at pp. 350-351

[6] I note as well that in R. v. O'Neil, 2012 ABCA 162, [2012] A.J. No. 516 (C.A.), the records were submitted to the authorities, and admitted as business records through a representative of a business that was entirely separate from the one that had initially created and stored the data at issue.