ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-301
DATE: 20120430

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – AINSLEY ROWE Applicant

K. Jokinen, for the Respondent
J. Miglin, for the Defendant

HEARD: April 10, 11, 12, 2012

HOWDEN J.

[ 1 ] Ainsley Rowe faced charges of possession of a controlled Schedule 1 substance, cocaine, and possession of cocaine for the purpose of trafficking, on February 18, 2011, contrary to The Controlled Drugs and Substances Act , 1996, Chap. 19, ss. 4(1) and 5(2) respectively. During his trial, I made two rulings following voir dires for which I said I would provide more complete reasons:

i) admissibility of surveillance evidence and opinion of drug officer regarding the characterization of his observations; and

ii) admissibility of text messages from and to the accused person’s cell phone from Jan. 1 to Feb. 19, 2011 and Det. Sanders’ evidence regarding them.

The following are those reasons.

1. Police Surveillance Evidence

[ 2 ] Apart from the evidence of Nicole Morgan, who rented the basement apartment in question, the Crown’s case is a circumstantial one. It rests on the finding of a total of 329.1 grams of both crack and powder cocaine in the apartment: 263.9 grams of crack in a closed cracker box in a kitchen cupboard, and 65.2 grams of both crack and powder in a sock secreted in a crevice of a cushion on the living room couch. The cocaine in the couch cushion was individually packaged mostly in 3.7 and 3.8 gram bags. At the time Mr. Rowe and Ms Morgan were in a romantic relationship which had begun some 10 months before. Mr. Rowe spent a good deal of time at the Morgan apartment, particularly that February because he was off work due to an injury. The case for the Crown rests on the quantity found as well as much of it bagged in sale units, plus the following:

• his frequent access, days and overnight, to Ms Morgan’s apartment;

• two short departures by Rowe from the apartment on Feb. 18 when each time he met an unidentified person for seconds only and movements occurred and objects were observed consistent with an exchange of a baggy of cocaine for money;

• each time a small object was seen in the palm of the unidentified person as he or she left;

• perception of the experienced drug officer of the two encounters as hand- to -hand drug transactions;

• the car used for both was rented by the accused;

• Mr. Rowe’s position seated on the couch, on entry of the officers executing the search warrant late on the 18 th ,with his right leg over the place where 65.2 grams of individually bagged cocaine was found;

• on the coffee table in front of Mr. Rowe and Ms Morgan were found digital scales, two cell phones, and $2000 in cash in denominations of mostly $20 bills, some $10s and $5s;

• a second set of digital scales was found in a vase on a desk where a silver weight (said to be used to calibrate the scales) and Insolitol (a dietary supplement also used as a cutting agent for cocaine) were found;

• numerous text messages to and from the accused’s cell phone that day and 1.5 months before include code language used for availability of cocaine for sale; and

• opinion from an expert witness that all of the above indicates trafficking in cocaine had occurred and was to continue out of that apartment.

[ 3 ] Mr. Miglin opposed admission of any of the surveillance evidence. He characterized it as evidence of discreditable conduct the purpose of which was to paint the accused as a drug trafficker without charging him with actual trafficking. The two “transactions” some 3 to 6 hours before the obtaining and executing of the search warrant and the arrest of Mr. Rowe and Ms Morgan was therefore properly characterized as prior discreditable conduct. He submitted that it was highly prejudicial evidence both because it would lead to the jury reasoning that because Mr. Rowe engaged in two apparent drug transactions, he has the propensity to traffic in drugs and so he must own and be about to deal in the cocaine found in Ms Morgan’s apartment (reasoning prejudice) and the only purpose of the surveillance evidence is to blacken his character before the jury (moral prejudice). Therefore its prejudicial effect outweighs the limited probative value of the two encounters with the unidentified third parties. This is especially so where, as in this case, the defence concedes that the purpose of possessing the amount and packaged nature of the cocaine as found could only be for trafficking. It was possession that the accused was denying. No formal admission was put before the jury.

[ 4 ] Mr. Miglin submitted in particular that the officer who observed the two encounters and saw movements by the participants and objects that resembled packaged cocaine and folded money being exchanged should not be allowed to state his belief as to what he saw.

[ 5 ] Mr. Miglin cited R v Handy , 2002 SCC 56 , [2002] 2 S.C.R. 908 for his characterization of, and the courts’ restrictive approach to, evidence of prior discreditable conduct and similar fact evidence. He laid particular emphasis on a pre-Handy decision of the Ontario Court of Appeal, Charron J.A. (as she then was) writing for the Court. In R v B.(L.) (1997), 116 C.C.C. (3d) 481 (O.C.A.), Charron J.A. states at para. 10 the following which Mr. Miglin adopts as applicable to this case:

10 Because of the inherently prejudicial nature of evidence of discreditable conduct, it is subject to a general exclusionary rule unless the "scales tip in favour of probative value." 9 The trial judge who is charged with the delicate process of balancing the probative value of the proposed evidence against its prejudicial effect should inquire into the following matters.

• 1. Is the conduct, which forms the subject-matter of the proposed evidence, that of the accused?

• 2. If so, is the proposed evidence relevant and material?

• 3. If relevant and material, is the proposed evidence discreditable to the accused?

• 4. If discreditable, does its probative value outweigh its prejudicial effect?

[ 6 ] For the Crown, Ms Jokinen submitted first that the evidence proffered by the Crown is directly relevant and part of the case against the accused and is not properly characterized as prior discreditable conduct.

[ 7 ] She further submitted that it is evidence that goes to making the case for possession of the cocaine more likely and therefore it is relevant. It serves to identify Mr. Rowe as the man found on the couch in the premises where the cocaine was found and as the same man who was in the rental car for the two encounters witnessed by officer Marshall. She further argued that the surveillance evidence shows the use of this house as the home base for selling the cocaine.

[ 8 ] Finally regarding the officer’s evidence of his belief as to what he observed on Feb. 18 2011, Ms Jokinen cited the Supreme Court of Canada decision in R. v Graat 1982 , [1982] 2 S.C.R. 819.

[ 9 ] I accepted the submission of counsel for the Crown on both points.

[ 10 ] First, the crown’s case is a highly circumstantial one, apart from the evidence to come from the co-accused Ms Morgan (the case against her has been severed by the prosecution in order to subpoena her for this trial). The surveillance evidence forms a logical and relevant part of that circumstantial case. The test of relevance is stated succinctly in the following excerpt from a judgment of Doherty J.A. in R v Watson, (1996) 108 CCC 3d 310 (O.C.A.) at paras 32-33 :

In explaining what he meant by relevance, La Forest J. referred to Morris v. R. , [1983] 2 S.C.R. 190 , 7 C.C.C. (3d) 97 , and then said at p. 715 S.C.R., pp. 417-18 C.C.C.:

• It should be noted that this passage [from R. v. Morris ] followed a general discussion of the concept of relevance in which the court affirmed that no minimum probative value is required for evidence to be deemed relevant. The court made it clear that relevance does not involve considerations of sufficiency of probative value. ... A cardinal principle of our law of evidence, then, is that any matter that has any tendency, as a matter of logic and human experience, to prove a fact in issue, is admissible in evidence, subject, of course, to the overriding judicial discretion to exclude such matter for the practical and policy reasons already identified. (Emphasis added)

33 While La Forest J. dissented in the result in Corbett, his discussion of the significance and meaning of relevance is consistent with previous and subsequent majority decisions of the Supreme Court of Canada: Morris v. R ., supra, per McIntyre J., at pp. 191-92 S.C.R., pp. 98-99 C.C.C., per Lamer J. (dissenting in the result) at pp. 200-01 S.C.R., pp. 105-06 C.C.C.; R. v. Seaboyer , [1991] 2 S.C.R. 577 at pp. 609-12, 66 C.C.C. (3d) 321 at pp. 389-92. Relevance as explained in these authorities requires a determination of whether as a matter of human experience and logic the existence of "Fact A" makes the existence or non-existence of "Fact B" more probable than it would be without the existence of "Fact A". If it does then "Fact A" is relevant to "Fact B". As long as "Fact B" is itself a material fact in issue or is relevant to a material fact in issue in the litigation then "Fact A" is relevant and prima facie admissible.

[ 11 ] In this case, do the facts that Mr. Rowe is seen coming and going from this apartment, uses the silver Kia which is rented to Speedy Rowe and is usually parked in the driveway to the house in question, and is seen in this car involved in two encounters described as hand to hand transactions, make it more likely that he was in possession, alone or jointly with Ms Morgan, of the cocaine. In my view, the answer is clearly yes. The evidence has direct probative value to the main issue in the case without resort to propensity reasoning.

[ 12 ] Furthermore, it is not properly characterized as similar fact evidence or prior discreditable conduct which are the types of evidence of prior conduct unrelated in time to the charges before the court and that do invite propensity reasoning. In The Law of Evidence , by Bryant, Lederman and Fuerst (3d edition) at para 11.4, the point is made that the similar fact rule applies where the Crown proffers evidence of discreditable conduct of the accused on other occasions as evidence of the probability that he has the type of disposition to have committed the crime alleged by the Crown. In such case, the only relevance to the case would be the accused’s character or disposition to do something and not whether he actually did so on the occasion alleged in the indictment. In this case, the proffered evidence goes to the conduct of the accused on the very day on which the prohibited conduct is alleged and thus to the issue before the court. I will certainly warn the jury of the prohibited use of propensity reasoning in this case. The evidence in question is directly relevant to the issue of possession of the cocaine on Feb. 18 th 20ll.

[ 13 ] Finally, on the issue of whether the officer who observed the two encounters in question may express his perception of what he saw, I look to the principles expressed about opinion evidence from lay witnesses, including experienced police officers, in R v Graat . In Graat , Dickson J (as he then was) wrote the following for a unanimous Court:

Except for the sake of convenience there is little, if any, virtue, in any distinction resting on the tenuous, and frequently false, antithesis between fact and opinion. The line between “fact” and “opinion” is not clear.

To resolve the question before the Court, I would like to return to broad principles. Admissibility is determined, first, by asking whether the evidence sought to be admitted is relevant. This is a matter of applying logic and experience to the circumstances of the particular case. The question which must then be asked is whether, though probative, the evidence must be excluded by a clear ground of policy or of law.

There is a direct and logical relevance between (i) the evidence offered here, namely, the opinion of a police officer (based on perceived facts as to the manner of driving, and indicia of intoxication of the driver) that the person’s ability to drive was impaired by alcohol, and (ii) the ultimate probandum in the case. The probative value of the evidence is not outweighed by such policy considerations as danger of confusing the issues or misleading the jury. …

The judge in the instant case was not in as good a position as the police officers or Mr. Wilson to determine the degree of Mr. Graat’s impairment or his ability to drive a motor vehicle. The witnesses had an opportunity for personal observation. They were in a position to give the Court real help. They were not settling the dispute. They were not deciding the matter the Court had to decide, the ultimate issue. The judge could accept all or part or none of their evidence. In the end he accepted the evidence of two of the police officers and paid little heed to the evidence of the third officer or of Mr. Wilson.

And at p. 837:

Before this Court counsel for the appellant took the position that although opinion evidence by non-experts may be admissible where it is “necessary” the opinions of the police officers in this case were superfluous, irrelevant and inadmissible. I disagree. It is well established that a non-expert witness may give evidence that someone was intoxicated, just as he may give evidence of age, speed, identity or emotional state.

[ 14 ] The principle expressed at some length in Graat is succinctly summed up in The Law of Evidence , by A. Bryant, S. Lederman and M. Fuerst (3d ed.)at para 12.112-12:

12.11. ……Thus, the law moved away from the requirement of necessity in the case of lay witnesses whereby opinion evidence was received only if the witness could not ‘ ..… adequately convey to the jury the data from which such evidence is made’ to a ‘helpfulness’ standard.

12.12 Couched in these terms, the modern opinion rule for lay witnesses should pose few exclusionary difficulties when based on the witnesses’ perceptions. The real issue will be the assessment and weight to be given to such evidence after it is admitted.

[ 15 ] For these reasons, the evidence of the officer of his observations and his perception of what he has seen are admitted, subject of course to cross-examination and to whatever weight the triers of fact see fit to give it.

2. Admissibility of the Text Messages Jan.1 to Feb.19 2011

[ 16 ] The document proffered by the Crown is 14 pages in length, showing messages to and from 705 279-0277. The name in which the service provider, Telus Communications Co., registered this number is not that of Mr. Rowe but it was proven to be the number for the cell phone he was using at the time. The registered name is Jody Gordon. The listing shows columns for Date, Time, From Number, To Number, 3 other columns that have only an internal meaning, and at the far right, the text message for each call.

[ 17 ] The messages themselves refer to Mr. Rowe as “Speedy”. They also contain such messages as “In 45 min; ave bling”; “bud this is not the bling not the same as last time”(to Rowe); and the reply, “same bud”; “…I take a chick in 20m text u back”(to Rowe); “hey bud need half a chick it was me who was calling call me back”(to Rowe); “need 7g” (to Rowe); “bling bling bud; in twn(from Rowe); 4 other similar messages to 4 different numbers from Rowe); “still ave a bite 4 u; hurry bling bling”(from Rowe); “up and running blingbling”(the last two are on Feb. 17 10:23 and 17:13 (from Rowe); at 14:53 on Feb. 18,to Rowe from a friend Rob,”U not here yet”; (“Ter just went out”( from Rob at 14:53); “Thx bro” (to Rowe from Rob, husband of Terry-Ann at15:09) .

[ 18 ] The time 14:53 on Feb 18 is significant because that is the time that Officer Marshall watched a woman get into Rowe’s car momentarily, then leave having apparently exchanged a money-like folded object for something small which she took in her cupped hand. She was seen by Officer Scales fidgeting with her bra as she left the car and went into the supermarket.

[ 19 ] There are many other messages but these indicate the flavour of many of them throughout the period. The terms “ball”, “chick” and “half-chick” are used and were said by the expert in the illegal drug trade Det. Sanders, in his report , as commonly used for drug units like 3.5 grams (ball), 1.75 grams(half-chick) and 3.5grams(chick). His report contained no reference to “bling”. During the later voir dire on the admissibility of his evidence regarding the content of the messages, his evidence was that in 13 years, he had only heard “bling” once relating to illegal drugs, in particular cocaine. He conceded that this word has a mainstream meaning of shiny, or shiny ostentatious jewellery, that it came out of hip-hop and rap culture. That culture of course is often depicted in film and in rap lyrics as having a particular affinity to the drug trade and use, as most people these days are aware including this court. Nevertheless, it is clear that “bling” and “blingbling” have meanings documented in several dictionaries now that have nothing to do with illicit drugs. There are also messages between Rowe and a girl-friend which are not relevant to this case, are private, and will remain so.

[ 20 ] Ms Jokinen submitted quite openly that she wanted the text messages for the entire period filed as an exhibit to show that Mr. Rowe was actively in the drug business. She referred to R v Lepage , [1995] 1 S.C.R. 654 to show that the Supreme Court of Canada has upheld the use of discreditable conduct evidence where its probative value exceeds its prejudicial effect in the case of what otherwise is bad character evidence.

[ 21 ] Ms Jokinen further stated that the use of prior bad conduct evidence, i.e. prior fires linked to the accused in an arson case, had been sanctioned by the Ontario Court of Appeal as evidence of similar facts showing a scheme or system. R v Carpenter , [1981] O.J. No. 111 . In the more recent R v Carpenter , [1982] O.J. No. 129 (C.A.), the court allowed an appeal from the accused’s acquittal at trial by holding that the trial judge had erred in not applying the probative vs. prejudicial effect test and that three fires to properties controlled by the accused had strong probative force to show that the accused “may have had some association with the origin of those fires.”A new trial was directed on other grounds in that case; the similar fact ruling was to guide the trial judge in the next trial. Ms Jokinen submitted that in the case before me, similarly the text messages are relevant to rebut innocent association of the accused with the cocaine found in the Morgan apartment. See also R v P.S. , [2000] O.J. No.1374 (C.A.), a sexual assault case where evidence of prior misconduct of the accused with the complainant was also ruled admissible, despite “dissimilarities”, to rebut a defence of innocent association.

[ 22 ] Mr Miglin opposed admission of any of the text messages on the following grounds:

(a) The text messages from others are hearsay and where they are from the accused, they are evidence of discreditable conduct;;

(b) If not outright hearsay, they are implied hearsay because they rely on the truth of what is being texted, citing Feldman J. in R v Baldree , [2012] O.J. No.924 (C.A.), paras 140-143 , 144-148);

(c) The prejudicial effect of tarnishing Mr. Rowe as being in the drug business through use of messages using language that is ambiguous and often without knowing what the real context is, far outweighs any probative value they may have.

[ 23 ] In reply, Ms Jokinen pointed out that there is no clear ratio arising from Baldree as Watt J.A. did not agree that hearsay was involved and Blair J.A. rested his decision on a different ground of appeal. She cited R v Ly , [1997] 3 S.C.R. 698 as authority for the proposition that a telephone conversation between an undercover officer and an unidentified person was not hearsay. The telephone conversation had a nexus in time and subject to the charge in that case of possession for the purpose of trafficking.

[ 24 ] Following a voir dire on this issue, I ruled that the content of the original text message list between January 1 and February 16 inclusive was excluded. I ruled admissible the content for Feb. 17 and 18, 2011 on two conditions:

(i) that prior to any reference being made to this record, a competent representative official from Telus Communications Company shall provide through oral evidence at trial proof that the entries on the above two dates are accurate in all details including in particular the contents of the text messages, and that the requirements of s 31.2(1) of the Canada Evidence Act are met [^1] ; and

(ii) provided that condition (i) is met, the entries for Feb. 17 and 18 2011 shall be admitted in evidence. Any reference by the expert witness to text messages shall be limited only to those on Feb. 17 and 18 2011.

[ 25 ] A witness from Telus was called before the jury to comply with ss. 31.1 and 31.2(1) of the Canada Evidence Act , the provisions applicable to admissibility and best evidence of electronic documents. I ruled that Det. Sanders could give his evidence on the text content of the messages on Feb. 17-8 2011, subject of course to whatever weight the jury may give it.

[ 26 ] I am satisfied that, subject to those conditions and the restriction on admission to the day before and the day alleged by the Crown for when the accused had possession of cocaine for the purpose of trafficking, that the proper balance is struck between probative value and prejudicial effect of the proffered evidence. As well, due to the number of calls each day, not just one, and the language used, the issue is not one of hearsay in that the evidence is not being admitted for the truth of its contents but because of its relevance in the number of calls, many made by the accused himself, and their content to issues of control and possession and the purpose of the possession of the cocaine.

[ 27 ] In Handy , supra, at paras 88-9 , the majority in the same court referred to Lepage as a case where,

The issue to which the evidence was relevant was possession (not just character or propensity), but the housemate’s evidence derived its cogency from what it said about the character or disposition of the accused, as the dissenters, per Major J., pointed out, at para. 55:

In Justice Sopinka’s view, the evidence of Thelland was relevant not solely to character, but also to possession, in that someone in the business of dealing narcotics had more opportunity and was more likely to be in possession of narcotics. With respect, this is evidence of propensity to deal in drugs, and nothing more.

89 The difference between the majority and the minority, it seems, was that the majority considered the connections or correspondence between the act charged and the prior acts of possession (what McCormick on Evidence (5th ed. 1999), vol. 1, at p. 687, calls “situation-specific behaviour”) sufficiently compelling to draw safely the inference of possession on the facts charged, whereas the minority considered any linkage to be so general as to have no probative value with respect to the particular facts of the offence on the particular date charged.

This is hardly a ringing endorsement and in saying this, in my view the Court was restricting that case very much to its own facts.

[ 28 ] In R v Baldree , supra, at paras 145-8 and in particular para 148, Feldman J. qualifies her finding of implied hearsay or hearsay to a case different from the one I am dealing with. She wrote:

[145] The trial judge also erred by admitting the evidence on the basis that it showed that the appellant was in the drug-dealing business. This was an error since, unlike in other cases, it was admitted that the quantity of drugs found was sufficient to prove that whoever possessed the drugs possessed them for the purpose of trafficking. The only live issue was which of the apartment’s occupants possessed the drugs. The caller clearly identified the appellant as the drug dealer.

[146] Nor would the single call have met the necessity/reliability test. The Crown did not make out a case for necessity: the police had the caller’s address but never tried to contact him or obtain his testimony. There was no basis to say that the caller’s belief was reliable without testing the basis for that belief by cross-examination.

[147] Finally, before admitting the evidence of one anonymous call, the trial judge should have considered whether its probative value outweighed its prejudicial effect, whether counsel specifically objected on that basis or not, and where defence counsel had asked the judge to rule the evidence inadmissible as hearsay. ( Khelawon at paras. 3 and 49):

…because trial fairness may encompass factors beyond the strict inquiry into necessity and reliability, even if the two criteria are met, the trial judge has the discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect. (para. 49)

[148] The minority in Kearley , who would have found the calls theoretically admissible as non-hearsay, were clear that the probative/prejudicial weighing was required where there were only one or two calls, and that in those circumstances, such evidence should be rejected because its probative value was questionable while its prejudicial effect was clear. (See the two statements quoted above at paras. 127 and 128). Emphasis added.

[ 29 ] I adopt the words of Watt J.A. in paras 69-70 and 81 :

[69] Whether implied assertions, in particular drug purchase calls, should be characterized as hearsay or viewed as non-hearsay is an issue that is neither free from difficulty nor the subject of principled analysis in our jurisprudence. For the most part, evidence of drug purchase calls seems generally to be admitted, either as non-hearsay or as hearsay that is both necessary and reliable.

[70] In Ontario, the preponderance of authority favours the conclusion that evidence of drug purchase calls is non-hearsay, circumstantial evidence of the nature of the business carried on by the person charged: Lucia , at para. 7; Edwards , at pp. 248-249. That said, in Edwards, McKinlay J.A. went on to hold that, even if the evidence should be considered hearsay, it was admissible as necessary and reliable: Edwards at p. 249.

[81] In this case, the prosecutor did not introduce the drug purchase call to prove the truth of its contents. A telephone call is evidence of conduct in words. The conduct is carried out by use of a telephone. The call was relevant to show the nature of the business carried by the appellant. The nature of that business was a material issue in the prosecution of the appellant. The caller wanted to buy drugs. The conduct of the buyer was an item of evidence, which, together with other items of evidence, may help to establish the nature of the appellant’s business, the purpose for which he had various controlled substances in his possession.

[ 30 ] Blair J.A. agreed with the distinction that Feldman J.A. made from a case like this one where the messages are numerous and are code for messages of drug purchases or sales, as the expert witness to be called by the Crown will testify.

[ 31 ] To paraphrase the decision in R v Ly , supra, by the Supreme Court of Canada, the text message evidence of Feb. 17 and 18 2011 is merely one of many circumstances and factors which, combined with others and with any evidence to be led by the defence, may or may not suffice to establish that the accused was in possession of at least some of the cocaine, by himself or jointly with another, for the purpose of trafficking. Any frailties in relation to the connection between the accused and the text messages of Feb. 17 and 18, 2011 go to weight and not to admissibility.

[ 32 ] The evidence of the text messages for the approximately 6 weeks before Feb. 17-18 is excluded because its prejudice, both in reasoning and moral terms, exceeds its limited probative value the further the calls are removed from the date charged. If indeed the Crown was really asserting that this accused was conducting a drug business and trafficking in cocaine for those 6 weeks, they could have charged him with that. It appears that they could not prove that was so, and so any value the pre-Feb. 17 texting has is clearly outweighed by its prejudicial effect of trying to tarnish him before the jury with the suggestion that he is a black drug dealer from the city who of course would be the kind of person who would have brought the cocaine to this community for trafficking purposes on Feb. 17 and 18 2011. Its prejudice in playing to a stereotypical image outweighs substantially its limited probative value to the issue of possession on Feb. 18, 2011.

[ 33 ] For these reasons, the admission of the text messages is limited to those on Feb. 17 and 18 2011 where a time and subject nexus is clearly established and thus they have a preponderant probative value in relation to the charges as laid.

HOWDEN J.

Released: April 30, 2012

[^1]: S. 31.2 (1) requires that the integrity of the electronic documents system in which the content was recorded and stored shall be proved in order to comply with the best evidence rule for such documents.