R. v. Mapara, [2005] 1 S.C.R. 358, 2005 SCC 23

SUPREME COURT OF CANADA

Citation: R. v. Mapara, [2005] 1 S.C.R. 358, 2005 SCC 23

Date: 20050427 Docket: 29750

Between: Sameer Mapara Appellant v. Her Majesty the Queen Respondent ‑ and ‑ Attorney General of Canada and Attorney General of Ontario Interveners

Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Fish, Abella and Charron JJ.

Reasons for Judgment: (paras. 1 to 42) Concurring reasons: (paras. 43 to 64)

McLachlin C.J. (Bastarache, Binnie, Abella and Charron JJ. concurring) LeBel J. (Fish J. concurring)

R. v. Mapara, [2005] 1 S.C.R. 358, 2005 SCC 23

Sameer Mapara Appellant

v.

Her Majesty The Queen Respondent

and

Attorney General of Canada and Attorney General of Ontario Interveners

Indexed as: R. v. Mapara

Neutral citation: 2005 SCC 23.

File No.: 29750.

2004: December 16; 2005: April 27.

Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Fish, Abella and Charron JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law — Evidence — Admissibility — Hearsay — Co‑conspirator’s exception — Double hearsay — Whether co‑conspirator’s exception to hearsay rule meets requirements of principled approach to hearsay — Whether double hearsay evidence of co‑conspirator lacked necessity or reliability in circumstances of this case and ought to have been excluded.

Criminal law — Evidence — Admissibility — Interception of communications — Three‑way communication — Named person in wiretap authorization initiating phone call with third party — Named person and accused alternately speaking with third party during call — Authorization requiring police to stop listening when named person not party to communication — Whether intercepts of telephone conversation between accused and third party should have been excluded — Whether named person still party to communication.

The accused and his co‑conspirators, including B, W and C, were charged with first degree murder. The victim was shot to death in the accused’s car lot. The Crown alleged that the accused’s part in the conspiracy was to lure the victim to the lot. At the accused’s trial, B testified that prior to the murder, W had told him that the accused had a job for them. The Crown’s evidence also included an intercepted phone call between W and C, a target named in the wiretap authorization. During the call, C and the accused spoke alternately with W. At the same time, the accused received a call on his own phone from the victim and the accused’s side of the conversation was picked up by the wiretap. He told the victim to meet him at the lot in 15 minutes and then informed W about this arrangement. Although the authorization required the monitor not to listen if C was not a party to the call, the trial judge held that C had never ceased to be a party to this call and admitted the wiretap evidence. The accused was convicted of first degree murder and the Court of Appeal upheld the conviction.

Held: The appeal should be dismissed. The co‑conspirator’s evidence and the wiretap evidence were admissible.

Per McLachlin C.J. and Bastarache, Binnie, Abella and Charron JJ.: Even when it applies to double hearsay, the co‑conspirator’s exception to the hearsay rule as set out in Carter meets the necessity and reliability requirements of the principled approach to hearsay and should not be set aside or altered. Necessity arises from the combined effect of the non‑compellability of a co‑accused, the undesirability of trying co‑conspirators separately, and the evidentiary value of contemporaneous declarations made in furtherance of a conspiracy. Reliability is satisfied by the Carter rule. The two‑step Carter approach allows the trier of fact to consider a co‑conspirator’s hearsay statement made in furtherance of the conspiracy only after he or she has found (1) beyond a reasonable doubt, that the conspiracy existed and (2), based only on direct evidence against the accused, that the accused was probably a member of it. The Carter approach does not simply amount to corroborating the statement in issue but provides circumstantial indicators of reliability. This approach is fair to accused persons and allows effective prosecutions of conspiracies. It also avoids the delays and difficulties in trial procedure that would arise if, with respect to admissibility, the necessity and reliability of particular pieces of hearsay evidence were to be decided on a case‑by‑case basis. Finally, the accused did not establish that B’s testimony constitutes one of those rare or exceptional cases where evidence falling within a valid exception to the hearsay rule does not, in the peculiar circumstances of the case, contain the indicia of necessity and reliability necessary for the admission of hearsay evidence. The frailties in B’s evidence go to its ultimate weight and the trial judge properly charged the jury on this aspect. [18] [22-24] [28-31] [36-37]

There is no basis to interfere with the lower courts’ finding that the phone call initiated by C, the named person in the authorization, was a three‑way conversation involving C, the accused and W. Since C never ceased to be a party to the conversation, the police did not exceed the terms of the authorization. In the circumstances of this case, the conduct of the police in monitoring the communication between the accused and W cannot be characterized as a deliberate and unreasonable breach of the authorization. [39-41]

Per LeBel and Fish JJ.: While the principled approach must continue to play a significant role in the application of the co‑conspirator’s exception to the hearsay rule, it cannot be taken for granted that the essential indicia of reliability will always be present in such case. The first two stages of the Carter process do provide some circumstantial indicators of reliability, but too many deficiencies in that process may permit mistaken or untruthful hearsay to be admitted into evidence. The Carter process is also ill suited to accounting for all the different types of situations arising out of joint ventures in a criminal context. These concerns, as well as the dangers of hearsay and the need to avoid unfairness and wrongful convictions, call for a contextual approach to the application of the co‑conspirator’s exception. The process should provide sufficient flexibility to the trial judge to assess whether, in the particular factual context, a hearsay declaration possesses sufficient indicia of reliability and necessity. [45] [53-54]

The admissibility of co‑conspirator’s hearsay evidence should thus be determined according to the principled approach when the evidence was obtained or given in circumstances that raise serious concerns or suspicions as to reliability or necessity. A standard of serious concerns or suspicions recognizes that the traditional exceptions normally suffice but does not limit the application of the principled approach to the most exceptional cases. A voir dire to assess the hearsay evidence will remain the exception and will be required only when an accused raises serious and real concerns based on concrete and particularized reasons or with a specific evidentiary basis. These concerns are drawn from the circumstances in which the declaration was made. The evidence should be provisionally admitted when tendered and if serious concerns or suspicions are raised, then a voir dire into its admissibility under the principled approach should be held before the case is left with the trier of fact. Where an accused is unable to raise any serious or suspicious concerns, the trier of fact will apply the Carter steps at the end of the trial. In this case, the accused has not established that B’s hearsay evidence raised serious concerns as to its reliability. [56] [58] [60-62] [64]

Cases Cited

By McLachlin C.J.

Applied: R. v. Carter, 1982 35 (SCC), [1982] 1 S.C.R. 938; R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40; referred to: R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531; R. v. Chang (2003), 2003 29135 (ON CA), 173 C.C.C. (3d) 397; R. v. Evans, 1993 86 (SCC), [1993] 3 S.C.R. 653.

By LeBel J.

Applied: R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40; discussed: R. v. Carter, 1982 35 (SCC), [1982] 1 S.C.R. 938; referred to: R. v. Pilarinos (2002), 2 C.R. (6th) 273, 2002 BCSC 855; R. v. Chang (2003), 2003 29135 (ON CA), 173 C.C.C. (3d) 397; R. v. U. (F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764; R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740; R. v. Hawkins, 1996 154 (SCC), [1996] 3 S.C.R. 1043; R. v. Ticknovich (2003), 343 A.R. 243, 2003 ABQB 854; R. v. Duncan (2002), 2002 26206 (MB PC), 1 C.R. (6th) 265; R. v. Hape, [2002] O.J. No. 168 (QL).

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 7, 24(2).

Authors Cited

Archibald, Bruce P. “The Canadian Hearsay Revolution: Is Half a Loaf Better Than No Loaf at All?” (2000), 25 Queen’s L.J. 1.

Goode, Matthew R. Criminal Conspiracy in Canada. Toronto: Carswell, 1975.

Layton, David. “R. v. Pilarinos: Evaluating the Co‑conspirators or Joint Venture Exception to the Hearsay Rule” (2002), 2 C.R. (6th) 293.

Paciocco, David M., and Lee Stuesser. The Law of Evidence, 3rd ed. Toronto: Irwin Law, 2002.

Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999.

Stewart, Hamish. “Hearsay after Starr” (2002), 7 Can. Crim. L.R. 5.

Stuart, Don. Canadian Criminal Law: A Treatise, 4th ed. Scarborough, Ont.: Carswell, 2001.

Whitzman, Stephen. “Proof of Conspiracy: The Co‑conspirator’s Exception to the Hearsay Rule” (1985‑86), 28 Crim. L.Q. 203.

APPEAL from a judgment of the British Columbia Court of Appeal (Donald, Saunders and Low JJ.A.) (2003), 179 B.C.A.C. 92, 295 W.A.C. 92, 180 C.C.C. (3d) 184, [2003] B.C.J. No. 452 (QL), 2003 BCCA 131, upholding the accused’s conviction for first degree murder. Appeal dismissed.

Gil D. McKinnon, Q.C., Tom Arbogast and Letitia Sears, for the appellant.

John M. Gordon, for the respondent.

Robert W. Hubbard and Marion V. Fortune‑Stone, for the intervener the Attorney General of Canada.

Jamie Klukach and Susan Magotiaux, for the intervener the Attorney General of Ontario.

The judgment of McLachlin C.J. and Bastarache, Binnie, Abella and Charron JJ. was delivered by

The Chief Justice —

I. Introduction

1On October 7, 1998, Vikash Chand was shot seven times while changing a licence plate in the car lot of Rags to Riches Motor Cars, owned by the appellant, Mapara. Five people were charged with Chand’s murder: the appellant, who was alleged to have lured Chand to the place of execution; Chow, who was alleged to have financed the killing and getaway; Shoemaker, who is alleged to have done the killing; Binahmad, the getaway driver who testified for the Crown; and Wasfi, who the Crown alleged organized the killing.

2The appellant and Chow were tried jointly by judge and jury. They were convicted of first degree murder. Their appeals to the Court of Appeal of British Columbia were dismissed: (2003), 179 B.C.A.C. 92, 2003 BCCA 131. They now appeal to this Court. These are the reasons on Mapara’s appeal.

3Mapara raises two grounds of appeal in this Court. First, he argues that Binahmad’s evidence of a discussion incriminating him in the planning of the murder should have been rejected as unreliable double hearsay evidence. Second, he argues that wiretap evidence against him taken shortly before the murder did not fall within the terms of the authorization and should not have been admitted at trial.

4I conclude that neither argument can succeed, and would dismiss the appeal.

II. Admissibility of Binahmad’s Evidence of His Conversation With Wasfi

5Binahmad testified that sometime around late September 1997 he met with Wasfi at a Petro-Canada gas station, where Wasfi told Binahmad that “the little guy”, who Binahmad understood to be Mapara, had a job for them. In the appellant’s submission, this was important evidence. It was one of two main items of evidence that Mapara had been involved in the planning of Chand’s murder; the other evidence against Mapara related to the allegation that he had lured Chand to the Rags to Riches lot to be killed. The Crown replies that the evidence of the conversation with Wasfi was unimportant since evidence that Mapara lured Chand to his death alone made Mapara’s conviction for first degree murder inevitable.

6In the appellant’s submission, this was also unreliable evidence, being the double hearsay evidence of a co-conspirator who had reason to lie. Indeed, one aspect of this testimony was plainly false — Binahmad must have been mistaken as to the date of the conversation, since Wasfi was in prison at that time. The Crown replies that Binahmad’s error as to the date was before the jury, and that the trial judge told the jury about the limited circumstances in which they could accept the evidence and properly warned the jury against the inherent unreliability of the evidence of co-conspirators like Binahmad.

7The central issue, however, is not the importance or ultimate reliability of the evidence, but its admissibility. The appellant concedes that under the law as it presently stands, the evidence was admissible under an exception to the hearsay rule known as the co-conspirators’ exception, which permits reception of evidence of what co-conspirators say out of court in furtherance of the conspiracy. This is known as the Carter rule, after this Court’s decision in R. v. Carter, 1982 35 (SCC), [1982] 1 S.C.R. 938. The appellant argues that this rule should be set aside or altered to make Binahmad’s evidence of the conversation with Wasfi inadmissible.

8The co-conspirators’ exception to the hearsay rule may be stated as follows: “Statements made by a person engaged in an unlawful conspiracy are receivable as admissions as against all those acting in concert if the declarations were made while the conspiracy was ongoing and were made towards the accomplishment of the common object” (J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 303). Following Carter, co-conspirators’ statements will be admissible against the accused only if the trier of fact is satisfied beyond a reasonable doubt that a conspiracy existed and if independent evidence, directly admissible against the accused, establishes on a balance of probabilities that the accused was a member of the conspiracy.

9The appellant mounts several attacks on this rule as it applies to double hearsay evidence. His first argument is that it is unconstitutional because it denies an accused person’s right under s. 7 of the Canadian Charter of Rights and Freedoms to make full answer and defence. The appellant was entitled to cross-examine not only Binahmad on the statement, but Wasfi, the hearsay declarant of the statement that “the little guy” had a job for them, it is submitted. The inability to cross-examine Wasfi breached the appellant’s right to full answer and defence, and the Carter rule as it applies to double hearsay is therefore unconstitutional.

10I cannot accede to this argument. First, it was not presented in the courts below, and the appellant was refused leave to state a constitutional question by order of Bastarache J. on September 8, 2004. Second, on the substance of the matter, the argument adds little to the appellant’s main contention that the co-conspirators’ exception, as it applies to double hearsay, should be revisited by this Court. I now turn to this argument.

11The appellant’s second argument is that this Court should revisit the co-conspirators’ exception to the hearsay rule in light of the principled approach to the hearsay rule set out in R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40. He submits that Starr requires that all hearsay evidence, even if it falls within a traditional exception, be both necessary (in the sense that other sources of the evidence are not available) and reliable. The evidence here at issue is not reliable, and therefore should not have been received.

12This argument over-simplifies and distorts the principled approach to hearsay evidence set out in cases such as R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, and Starr. These cases seek to reconcile the traditional approach to hearsay evidence with the principles that lie behind it.

13The traditional rule is that all hearsay evidence is inadmissible, unless it falls within one of the exceptions to the hearsay rule. The party tendering hearsay evidence must fit it within one of the traditional categories. This rule has served well for centuries and continues to serve as a practical guide for the admissibility of hearsay evidence. However, as with most category-based rules, in some cases the results may appear arbitrary.

14This occasional arbitrariness was highlighted by the principled analysis of the hearsay rule and its exceptions developed by the American scholar Wigmore almost a century ago. Wigmore pointed out that the reasons for excluding hearsay evidence in general is that it is not the best evidence (direct evidence would be better), and it may be unreliable (it was not given under oath and cannot be tested by cross-examination). However, if these two defects are alleviated, hearsay evidence may be admitted. This, Wigmore opined, explains how most of the exceptions to the hearsay rule developed. The evidence is necessary, in that the person who made the hearsay statement is not readily available. And it is reliable, in the sense that something about it provides a circumstantial guarantee of trustworthiness. For these reasons, judges began to admit it. Their decisions were followed in other cases. Gradually, an exception emerged and became a fixed rule. Once fixed, however, the rule became rigid and could, in some cases, exclude evidence which should have been received having regard to the underlying criteria of necessity and reliability. It could also occasionally lead to the admission of evidence which should be excluded, judged by these criteria. This in turn could impede the search for the truth or unfairly prejudice the accused person.

15The principled approach to the admission of hearsay evidence which has emerged in this Court over the past two decades attempts to introduce a measure of flexibility into the hearsay rule to avoid these negative outcomes. Based on the Starr decision, the following framework emerges for considering the admissibility of hearsay evidence:

(a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.

(b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.

(c) In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.

(d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.

(See generally D. M. Paciocco and L. Stuesser, The Law of Evidence (3rd ed. 2002), at pp. 95-96.)

16Admissibility of evidence is determined on the basis of “threshold reliability” provided by circumstantial indicators of reliability. The issue of “ultimate reliability” is for the trier of fact, in this case the jury.

17The appellant invokes the second and third propositions set out above. His main argument is that the co-conspirators’ exception to the hearsay rule does not accord with the fundamental criteria that underlie the exceptions to the hearsay rule, necessity and reliability. Alternatively, the question arises whether this is one of those “rare cases” where hearsay evidence falling within an exception to the hearsay rule should not be admitted because it lacks the necessary indicia of necessity and reliability.

18I first address the appellant’s main argument — the co-conspirators’ exception to the hearsay rule does not reflect the necessary indicia of necessity and reliability. In R. v. Chang (2003), 2003 29135 (ON CA), 173 C.C.C. (3d) 397, the Ontario Court of Appeal, per O’Connor A.C.J.O. and Armstrong J.A., rejected this argument. The criterion of necessity poses little difficulty. As stated in Chang, “necessity will arise from the combined effect of the non-compellability of a co-accused declarant, the undesirability of trying alleged co-conspirators separately, and the evidentiary value of contemporaneous declarations made in furtherance of an alleged conspiracy” (para. 105).

19The criterion of reliability requires closer scrutiny. The appellant raises the concern that co-conspirators’ statements tend to be inherently unreliable because of the character of the declarants and the suspicious activities in which they are engaged.

20A preliminary issue arises at this stage. The federal Crown argues that the co-conspirators’ exception is not grounded in a concern for reliability, but rests rather on the reasoning that once it is established that the people concerned were involved in the same conspiracy, then the statements of one are admissions against all. Thus, “the rationale for the rule in Canada was grounded in principles governing admissions by party litigants”: Chang, at para. 82. This exception is grounded in “a different basis than other exceptions to the hearsay rule. Indeed, it is open to dispute whether the evidence is hearsay at all”: R. v. Evans, 1993 86 (SCC), [1993] 3 S.C.R. 653, per Sopinka J., at p. 664. Sopinka J. went on to suggest that circumstantial guarantees of trustworthiness are irrelevant to the party admissions exception to the hearsay rule:

The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party. Its admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements. [p. 664]

It follows on this reasoning that if the appellant was a co-conspirator with the witness, Binahmad, the appellant cannot be heard to complain that what he said to Binahmad was unreliable. Similarly, it is argued, he cannot complain about the unreliability of what a third co-conspirator, Wasfi, said to Binahmad. They were all plotting together, and what each says can be used against the other. Having entered into a criminal conspiracy, the accused cannot in his defence rely on its very criminality and the unreliability of his co-conspirators.

21The unique doctrinal roots of the co-conspirators’ exception to the hearsay rule cannot be denied. However, as noted in Chang, “the fact that the co-conspirators’ rule is grounded in those principles does not alter the fact that a statement that becomes admissible under the Carter process is hearsay and concerns about unreliability are very real” (para. 85). In this sense, the directive of Starr that the traditional exceptions should be examined for conformity with necessity and reliability remains pertinent.

22I return, therefore, to the question of whether the co-conspirators’ exception to the hearsay rule possesses sufficient circumstantial indicators of reliability. The Carter process allows the jury to consider a hearsay statement by a co-conspirator in furtherance of the conspiracy only after it has found (1) that the conspiracy existed beyond a reasonable doubt and (2) that the accused was probably a member of the conspiracy, by virtue only of direct evidence against him.

23The appellant argues that Carter cannot satisfy the reliability requirement because it amounts to using corroborating evidence to bolster the reliability of hearsay declarations against the accused, contrary to Starr, per Iacobucci J., at para. 217.

24I do not agree. The question is whether the first two stages of the Carter process provide circumstantial indicators of reliability that do not amount to simply corroborating the statements in issue. In my view, they do. 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.

25The evidence under the first two stages of Carter is not inherently corroborative of the hearsay statement, in the sense of confirming the truth of its contents. Indeed the evidence establishing the conspiracy and the accused’s probable participation may conflict with the hearsay evidence subsequently adduced. More often than not, the trier of fact will find corroboration, rather than conflict, in the direct evidence implicating the accused. However, this ultimate use of the evidence should not be confused with its initial role in establishing threshold reliability. Here it is relevant with respect to the context of the hearsay evidence, and not to its contents. The use of the Carter approach in the present inquiry thus stays within the boundaries of threshold reliability, as explained in Starr.

26In addition to these preliminary conditions, the final Carter requirement, i.e., only those hearsay statements made in furtherance of the conspiracy can be considered, provides guarantees of reliability in the more immediate circumstances under which the statement is made. “In furtherance” statements “have the reliability-enhancing qualities of spontaneity and contemporaneity to the events to which they relate” (Chang, at paras. 122-23). They have res gestae-type qualities, being “the very acts by which the conspiracy is formulated or implemented and are made in the course of the commission of the offence” (Chang, at para. 123). This “minimizes the motive and opportunity for contrivance” (Chang, at para. 124). The characters’ doubtful reputation for veracity is not a factor at this stage of the analysis. Rather, it is to be taken into account by the jury when assessing the ultimate reliability of such characters’ statements.

27In sum, the conditions of the Carter rule provide sufficient circumstantial guarantees of trustworthiness necessary to permit the evidence to be received.

28This conclusion makes practical sense. First, the rule does not operate unfairly to accused persons. Indicia of reliability exist. In this way, unreliable evidence that is likely to mislead the jury can be excluded. It remains open to the accused to cross-examine the deponent, call contrary evidence, and argue the unreliability of the co-conspirators’ evidence before the jury. Moreover, it is not unfair to expect people who enter into criminal conspiracies to accept that if they are charged, the evidence of their co-conspirators about what they said in furtherance of the conspiracy may be used against them. Finally, the hearsay rule is supplemented by the discretion of the trial judge to exclude evidence where its prejudicial effect outweighs its probative value, discussed below.

29Second, the rule allows the Crown to effectively prosecute criminal conspiracies. It would become difficult and in many cases impossible to marshal the evidence of criminal conspiracy without the ability to use co-conspirators’ statements of what was said in furtherance of the conspiracy against each other. To deprive the Crown of the right to use double hearsay evidence of co-conspirators as to what they variously said in furtherance of the conspiracy would mean that serious criminal conspiracies would often go unpunished.

30Finally, to modify the Carter rule would increase delay and difficulties in trial procedure. Any approach that requires the trial judge to scrutinize the necessity and reliability of particular pieces of hearsay evidence in deciding its admissibility would undermine the efficiency of the traditional categories of exceptions to the hearsay rule and increase the number of voir dire. As stated in Chang:

We are concerned that conspiracy trials, many of which are already complicated, may become more so if every time the Crown seeks to introduce co-conspirators’ declarations, the trial judge is required to hold a voir dire to determine if there is compliance with the principled approach. We do not anticipate that will be the case. A voir dire addressing the principled approach should be the exception. It will only be required when an accused is able to point to evidence raising serious and real concerns about reliability emerging from the circumstances in which a declaration was made, which concerns will not be adequately addressed by use of the Carter approach. As a general rule, the presumption that evidence that meets the Carter requirements also meets the principled approach should obviate the need for a voir dire. [para. 132]

The appellant suggests simply that we make the Carter rule inapplicable to double hearsay evidence. However, the underlying rationale for doing so is that all hearsay evidence, even if it falls under an established exception, must be rejected if that particular piece of evidence does not meet the concerns of necessity and reliability. This implies a case-by-case vetting more resembling the ultimate reliability inquiry that is for the jury, than the threshold reliability inquiry relevant to admissibility.

31I conclude that the co-conspirators’ exception to the hearsay rule meets the requirements of the principled approach to the hearsay rule and should be affirmed.

32The appellant also asks us to change the Carter rule to require the first two elements to be determined by the trial judge, rather than the jury, on the ground that allowing the jury to decide these elements renders the exception operationally unfair. While courts may adjust common law rules incrementally to avoid apparent injustice, they do so only where there is clear indication of a need to change the rule in the interests of justice. That is not established in this case. Indeed, the appellant’s suggestion was considered and rejected in Carter precisely because of the danger that the jury might confuse the direct and the hearsay evidence against the accused and rely on the latter to convict the accused. The Court concluded that the three-stage approach was better suited to bring home to the jury the need to find independent evidence of the accused’s participation in conspiracy. I would not accede to this request.

33I conclude that the Carter rule stands and that the evidence in question was not excluded by the hearsay rule.

34This leaves for consideration the argument that even if the co-conspirators’ exception to the hearsay rule satisfies the need for indicia of necessity and reliability, this is one of those rare cases where evidence falling within a valid exception to the hearsay rule should nevertheless not be admitted because the required indicia of necessity and reliability are lacking in the particular circumstances of the case. The same considerations that lead to the conclusion that the co-conspirators’ exception to the hearsay rule satisfies the requirements for indicia of necessity and reliability are applicable here. Necessity is established, in the absence of direct evidence from the co-accused declarants. Indicia of reliability are found in the requirements of the Carter rule for a conspiracy proved beyond a reasonable doubt, membership of the accused in it on a balance of probability, and the rule that only statements made in furtherance of the conspiracy are admitted. It therefore becomes difficult to conclude that evidence falling under the Carter rule would lack the indicia of reliability and necessity required for the admission of hearsay evidence on the principled approach. In all but the most exceptional cases the argument is spent at the point where an exception to the hearsay rule is found to comply with the principled approach to the hearsay rule.

35Is this such a case? Certainly there are frailties in the evidence of the co-conspirator. Wasfi arguably had a motive to lie, namely a desire to falsely implicate the appellant, so Binahmad would think the appellant’s money would be used in the killing. According to the appellant, Wasfi had his own reasons to have Chand killed, namely to obtain vengeance for the alleged rape of his girlfriend and to eliminate a debt. He implicated the appellant because Binahmad knew he himself could not finance the contract killing. Finally, the evidence showed that Wasfi was in jail at the time when Binahmad testified that the discussion took place.

36These concerns, with the exception of the discrepancy as to the date of the conversation, do not go beyond concerns already addressed in the analysis of whether the co-conspirators’ exception complies with the principled approach to the hearsay rule. They are characteristic of any conspiracy. Any weaknesses go to the ultimate weight of the evidence, which is for the jury to decide. Nor does Binahmad’s error on when the conversation took place merit rejection of the evidence. This problem is one of ultimate reliability that the jury can decide. The trial judge reminded the jury in his charge about this difficulty, in the context of highlighting the defence position that both Wasfi and Binahmad were completely unreliable characters.

37It follows that the appellant has not established that the evidence to which he objects constitutes one of those “rare cases” where evidence falling within a valid exception to the hearsay rule fails, in the peculiar circumstances of the case, to satisfy the indicia of necessity and reliability necessary for the admission of hearsay evidence.

III. Admissibility of Call No. 79

38This phone call was initiated by Chow who called Wasfi, then handed over the phone to the appellant. After a brief exchange with Wasfi, the appellant returned the phone to Chow, who spoke with Wasfi for most of the remainder of the call, except for the very last part when the appellant comes back to talk to Wasfi. During this last interval, the appellant received a phone call from Chand and the appellant’s side of the conversation with Chand was picked up by the wiretap. The intercept recorded the appellant telling the victim to meet him at the Rags to Riches lot in 15 minutes. When that call terminated, the appellant returned to his conversation with Wasfi and told him about this fortunate arrangement.

39The appellant argues that the interception of his communications during this call was unlawful, as it exceeded the terms of the authorization. Chow was named as a target in the authorization and his interception was therefore lawful. The call was being manually monitored. The authorization required the police to stop listening when Chow was not a party to the communication. Thus the issue is whether Chow continued to be a party to the conversation after the appellant took the cell phone from Chow. If the appellant had borrowed Chow’s phone and called Wasfi, there is no doubt that the obligation to cease the interception would have been triggered. However, Chow initiated the call to Wasfi and both courts below found that he never ceased to be a party to the conversation, i.e., this was a three-way communication throughout, rather than a series of separate communications. Furthermore, as the respondent points out, the appellant himself characterized the call as a three-way conversation in cross-examination.

40The appellant’s case depends on this fundamental determination, which is of a factual nature. On the evidence before us, there is no basis to interfere with the findings in the courts below.

41Given the relatively short duration of the call and the frequency with which the conversation moved back and forth between Chow, Mapara and Wasfi, it seems reasonable for the monitor listening to it to expect that Chow was constantly present in the background and likely to intervene in the conversation at any time. Practically speaking, it is difficult to say at which point they should have determined that Chow was no longer a party to the conversation, which became a communication solely between Mapara and Wasfi. I would not characterize the police conduct in monitoring this call as deliberate and unreasonable. Even if it could be said with regard to the very last part of the call, for instance, when Chow does not come back on the line, that there was an unlawful interception, this would not constitute a violation of sufficient seriousness to engage an inquiry under s. 24(2) of the Charter into whether the conduct brought the administration of justice into disrepute.

IV. Conclusion

42I would dismiss the appeal and affirm the decision of the Court of Appeal.

The reasons of LeBel and Fish JJ. were delivered by

43LeBel J. — I have read the reasons of Chief Justice McLachlin. Although I agree with her opinion on the admissibility of call No. 79 and with the proposed disposition of this case, I differ from her with respect to the interaction of the co-conspirator’s exception to the hearsay rule and the principled approach set out in R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40.

I. The Principled Approach to Hearsay Evidence — its Relevance

44In Starr, our Court held that evidence falling within a traditional exception to the hearsay rule is presumptively admissible and that the exceptions should be interpreted in a manner consistent with the requirements of the principled approach: necessity and reliability (paras. 212-13). It was also recognized that, in spite of the application of an exception to the hearsay rule, evidence can be excluded in rare circumstances if it does not meet the principled approach’s requirements of necessity and reliability (para. 214). Moreover, Starr does not differentiate between the types of hearsay exceptions. It appears therefore that all hearsay exceptions may potentially be subject to the requirements of the principled approach to the hearsay rule. This includes the co-conspirator’s exception to hearsay, regardless of whether this exception is justified on the basis of the principles of agency, res gestae or admissions: see R. v. Pilarinos (2002), 2 C.R. (6th) 273, 2002 BCSC 855, at para. 68. The concern about the admission of unreliable evidence and the resulting impact on trial fairness must take priority: R. v. Chang (2003), 2003 29135 (ON CA), 173 C.C.C. (3d) 397 (Ont. C.A.), at para. 86.

45The requirements of the principled approach must continue to play a significant role in the application of the co-conspirator’s exception as set out in R. v. Carter, 1982 35 (SCC), [1982] 1 S.C.R. 938. To hold otherwise would seem to be incompatible with our Court’s efforts over the last two decades to reshape the law of evidence as applicable to hearsay to temper the rigidity of the traditional hearsay rules. In this respect, Lamer C.J. emphasized in R. v. U. (F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764, at para. 21, that, “[a]s the goal of our modifications of the principles governing hearsay has been to end the rigid artifice of pigeon‑hole exceptions, it is important that new criteria remain flexible.” Reliability and necessity have thus become the predominant criteria governing the admissibility of hearsay evidence.

46Also, one has to bear in mind that, in developing the principled approach to the hearsay rule, our Court has been concerned with the potentially prejudicial effects of the intrinsic dangers of hearsay evidence, namely the absence of oath and cross‑examination, and the inability of the trier of fact to assess the demeanour of the declarant: see R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, at p. 787; R. v. Hawkins, 1996 154 (SCC), [1996] 3 S.C.R. 1043, at paras. 74-75; Starr, at paras. 200 and 212. The existence of these dangers offers further justification for maintaining indicia of reliability and necessity as part of the analysis regarding the admissibility of hearsay statements under an established exception such as the co‑conspirator rule.

47Trial fairness and the principles of fundamental justice also militate in favour of considering these indicia in a manner that offers sufficient flexibility. As the majority said in Starr:

This is particularly true in the criminal context given the “fundamental principle of justice, protected by the Charter, that the innocent must not be convicted”: R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281, at para. 24, quoted in R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, at para. 71. It would compromise trial fairness, and raise the spectre of wrongful convictions, if the Crown is allowed to introduce unreliable hearsay against the accused, regardless of whether it happens to fall within an existing exception. [para. 200]

48Courts have generally recognized that the co-conspirator’s exception to the hearsay rule is subject to the requirements of the principled approach, or that the presumptive validity of the co-conspirator’s evidence can be displaced in particular circumstances: see R. v. Ticknovich (2003), 343 A.R. 243, 2003 ABQB 854, at paras. 30-31; R. v. Duncan (2002), 2002 26206 (MB PC), 1 C.R. (6th) 265 (Man. Prov. Ct.), at paras. 59-67; Pilarinos, at para. 68. It is interesting to note as well that in Chang, the Ontario Court of Appeal, despite its restrictive view of the application of the principled approach to the co-conspirator’s exception, recognized that there may be occasions when the circumstances surrounding the making of a particular statement raise such serious suspicions about its reliability that the court will exclude the evidence even though it may comply with the co-conspirator rule: Chang, at para. 125.

49Many commentators have also pointed out the unreliability of evidence that falls within the co-conspirator’s exception to the hearsay rule: M. R. Goode, Criminal Conspiracy in Canada (1975), at p. 252; S. Whitzman, “Proof of Conspiracy: The Co‑conspirator’s Exception to the Hearsay Rule” (1985-86), 28 Crim. L.Q. 203, at p. 205; D. Stuart, Canadian Criminal Law: A Treatise (4th ed. 2001), at p. 682; H. Stewart, “Hearsay after Starr” (2002), 7 Can. Crim. L.R. 5, at pp. 15-16; D. Layton, “R. v. Pilarinos: Evaluating the Co‑conspirators or Joint Venture Exception to the Hearsay Rule” (2002), 2 C.R. (6th) 293, at p. 303; B. P. Archibald, “The Canadian Hearsay Revolution: Is Half a Loaf Better Than No Loaf at All?” (2000), 25 Queen’s L.J. 1, at p. 49.

50Because of this unreliability, both the courts and the commentators have raised serious concerns as to whether the procedure mandated by Carter meets the requirements of the principled approach. The following are among the chief concerns that have been raised. First, the reliability of a hearsay statement is not necessarily bolstered if it was made in a joint venture. The existence of a joint venture does not uniformly lead to an increased probability that the declarant’s statement is accurate: see Layton, at pp. 303-4. As Bennett J. wrote in Pilarinos, at para. 66:

Juriansz J. [in R. v. Hape, [2002] O.J. No. 168 (QL) (S.C.J.)] appears to conclude that if the stages of Carter are met, then a circumstantial guarantee of trustworthiness exists. This may be the result in some cases, but it will certainly not be the result in all cases, and it cannot be taken as a given. The Carter test provides safeguards for the accused, but that does not necessarily equate with the hearsay statement being accompanied by a circumstantial guarantee of trustworthiness.

51Second, insofar as the Carter process requires the trier of fact to look at corroborative evidence, it is in conflict with the principled approach to the hearsay rule as developed in Starr. The proof of a conspiracy derived from the first and second stages of Carter, although not inherently corroborative of the hearsay statement, will sometimes allow certain statements to be taken into account that are external to the immediate surrounding circumstances of those statements. The co-conspirator rule may thus run counter to the position of the majority in Starr, at para. 217, where it was held that only evidence that concerns the circumstances of the statement itself may be taken into consideration. See also Duncan, at para. 54.

52Third, the Carter process does not allow the declarant’s motive to lie, which will in some circumstances be relevant to the determination of threshold reliability, to be taken into consideration. Members of a criminal conspiracy often have motives to lie, especially given that criminal success is not achieved through meticulous fidelity to the truth: see Layton, at p. 304. Conspirators may wish to understate their own involvement and emphasize the role of their partners in crime in the hope of being shown leniency or gaining a personal advantage. In this respect, the agency theory for the co-conspirator rule might very well minimize the likelihood that a co-conspirator would misrepresent the intention of the others, although it should not be assumed that it will unfailingly do so. Even res gestae-type qualities do not implicitly and invariably provide sufficient safeguards.

53Thus, it cannot be taken for granted that the essential indicia of reliability will always be present in the case of the co-conspirator’s exception to the hearsay rule. Although the first two stages of the Carter process do provide some circumstantial indicators of reliability, too many deficiencies in that process may allow mistaken or untruthful hearsay declarations to be admitted in evidence. The Carter process is also ill suited to accounting for all the different types of situations arising out of joint ventures in a criminal context.

54These concerns, as well as the dangers of hearsay and the need to avoid unfairness and wrongful convictions, call for a contextual approach to the application of the co-conspirator’s exception to the hearsay rule. The process should provide sufficient flexibility to the trial judge to assess whether, in the particular factual context, a hearsay declaration possesses sufficient indicia of reliability and necessity.

55In her reasons in this case, the Chief Justice finds that the Carter rule alone provides sufficient circumstantial guarantees of trustworthiness and accords with the fundamental criteria of necessity and reliability. In light of the above, I disagree with that conclusion. In my view, the Carter process does not in itself provide sufficient safeguards.

II. Application of the Principled Approach

56The admissibility of evidence based on the co-conspirator’s exception should be determined according to the principled approach to the hearsay rule when the circumstances in which the evidence was obtained or given raise real and serious concerns as to reliability or necessity. In such circumstances, the trial judge should be required to scrutinize the evidence to ensure that it meets the criteria of the principled approach: Chang, at para. 127. There is a need to depart from the Carter process and allow careful scrutiny where the theoretical justification for the co-conspirator’s exception collides with the facts or circumstances of the case. The rationale for the exception has then been displaced and the trier of fact must avoid relying on that evidence when following the Carter process: see the comments made by L’Heureux‑Dubé J. in Starr, at para. 57, although I disagree with the assertion that an exception will be challenged only when there are “facts, generally applicable to a class of persons”, which weaken the theoretical justification of an exception to hearsay.

57In her reasons, the Chief Justice recognizes that in the “most exceptional cases” the exception to hearsay might not comply with the principled approach to the hearsay rule (para. 34). This is too high a threshold. The principled approach cannot be curtailed to a point where it allows for untruthful and mistaken hearsay declarations to be admitted under a rule that fails to attain its objectives. Instead, the Court should adopt another standard that will provide sufficient guarantees of reliability and preserve the efficiency of trials while ensuring trial fairness.

58The standard of serious concerns or suspicions is not as restrictive as the solution proposed by the majority in this case. It recognizes that the traditional hearsay exceptions will normally suffice, but it does not limit the application of the principled approach solely to the “most exceptional” ones. The serious concerns or suspicions standard better responds to the concerns raised in Starr as to the reliability of evidence tendered under a traditional exception to the hearsay rule even if only in “rare” cases (para. 214).

59Circumstances of strong suspicion could be present where there are clear indications that a statement could not have been made, that it was intended to mislead or that the declarant lied, or that coercion or inducements were used to obtain the statement. However, this list is not exhaustive.

60I wish to stress that a voir dire to assess hearsay evidence of co‑conspirators on the basis of the principled approach will remain the exception. It will be required only when a party raises real and serious concerns about necessity or reliability by providing concrete and particularized reasons, or by pointing to a specific evidentiary basis for the alleged concerns. Those concerns will have to emerge from the circumstances in which a declaration was made or is being tendered: Chang, at para. 132. The burden of raising such concerns is borne by the party opposing the admission of the statement.

61A difficult question arises as to when the principled approach to the hearsay rule should be followed. Generally, the admissibility of evidence is determined when it is tendered, subject to the discretion of a trial judge to require assurances by counsel that the criteria for admissibility will ultimately be satisfied. A problem arises here because, as we know, the Carter process takes place at the end of the trial when the trier of fact is called upon to assess the evidence. It has been suggested in some cases that the principled approach should be followed at the conclusion of all the evidence (Duncan, at para. 65; Pilarinos, at para. 70) or at the point where the Carter steps are proven (R. v. Hape, [2002] O.J. No. 168 (QL) (S.C.J.), at para. 15). I prefer an approach that provides sufficient flexibility to the trial judge to determine the appropriate time to hold a voir dire while ensuring that it is held before Carter is applied at the end of the trial. Therefore, I am of the opinion that the trial judge has the discretion to determine when a voir dire is necessary to screen a declaration against the necessity or reliability criteria, as long as it is held before the case is left with the trier of fact: Chang, at para. 130.

62Thus, the evidence should be provisionally admitted when tendered. The principled approach will come into play if a party satisfies its burden to raise serious concerns or suspicions as to reliability or necessity. If the trial judge finds that the burden is met, then a voir dire should be held to determine whether or not the hearsay declaration meets the requirements of the principled approach. Where a party is unable to raise any serious concerns or suspicions, the trier of fact will apply the Carter steps as usual at the end of the trial.

63The approach highlighted above will help to achieve a balance between the efficiency and the fairness of the trial process. In addition, public confidence is less likely to be diminished by the admission of mistaken and untruthful statements as a result of the mechanical application of an inflexible method. Such a compromise becomes necessary when fundamental principles of justice are at stake and there is a risk of wrongful conviction.

64On the facts of this case, I agree with my colleagues that the appellant has not established that the evidence to which he objects raises serious and real concerns as to its reliability. Had it been known at the relevant time, the fact that Wasfi was in jail when his discussion with Binahmad allegedly occurred might well have changed my conclusion. However, that fact was not discovered until after the voir dire held by Oppal J. into the admissibility of Binahmad’s evidence: A.R., vol. IX, at p. 1541. As to the presence in this case of motives to lie, they are not sufficient in my view to raise serious concerns. I therefore agree with the Chief Justice on the disposition of this case.