COURT FILE NO.: 09-70000224-0000
DATE: July 13, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – John Magno
P. McDermott, Esq. for the Respondent
M. Henein and M. Gourlay, Esq. for the Applicant
RULING ON CO-CONSPIRATORS’ EXCEPTION
T. DUCHARME J.
I. OVERVIEW
[ 1 ] The accused, John Magno, is charged with second degree murder, conspiracy to commit arson, arson causing bodily harm and arson with intent to defraud other persons. All of these charges relate to a fire and explosion that destroyed his business, Woodbine Building Supply, on December 24, 2001 and resulted in the death of Tony Jarcevic, one of the two men who set the fire. The other arsonist, Jonathan “Sam” Paskalis, who was present at the time of the explosion, was horribly burned. While Mr. Magno was not present when the fire started, the Crown alleges that he conspired with Messrs. Jarcevic and Paskalis as well as several other persons to commit the arson in order to obtain insurance proceeds.
[ 2 ] The co-conspirators' exception to the hearsay rule allows the acts and declarations of an accused's alleged co-conspirators, done or made in furtherance of the conspiracy, to be adduced as evidence against the accused with respect to his guilt. [1] The three stage test for its admissibility, first established in R. v. Carter, [1982] 1 S.C.R. 938 was restated by McIntyre J. in R. v. Barrow:
The trier of fact must first be satisfied beyond a reasonable doubt that the alleged conspiracy in fact existed.
If the alleged conspiracy is found to exist then the trier of fact must review all the evidence that is directly admissible against the accused and decide on a balance of probabilities whether or not [the accused] is a member of the conspiracy.
If the trier of fact concludes on a balance of probabilities that the accused is a member of the conspiracy then [the trier] must go on and decide whether the Crown has established such membership beyond reasonable doubt. In this last step only, the trier of fact can apply the hearsay exception and consider evidence of acts and declarations of co ‑ conspirators done in furtherance of the object of the conspiracy as evidence against the accused on the issue of his guilt. [2]
[ 3 ] As explained in Chang the underlying rationale for this rule was based on the same principles that permitted the reception of out of court admissions by a party or by their agent:
In cases of conspiracy, specifically, it was accepted that each party to the conspiracy implicitly authorized the others to act and speak on his or her behalf in furtherance of the conspiracy; acts and declarations of one party could therefore be admitted as evidence against the others. [3]
[ 4 ] When evidence is sought to be admitted under the Carter approach, it is provisionally admitted into the record as a matter of convenience. The trier of fact ultimately determines the admissibility of the evidence and its weight at the final decision-making stage of the trial.
II. ISSUES
[ 5 ] In this case, the Crown seeks to lead utterances made by the deceased, Mr. Jarcevic, as well as by two other alleged co-conspirators, John Paskalis and Adrian Roks. Mr. Paskalis will be testifying for the Crown and Mr. Roks is available to testify although the Crown has not determined whether they will call him. [4] The recipients of these hearsay statements are Mr. Paskalis, Mr. Roks, and two other alleged co-conspirators, Mr. McMaster and Mr. Regaldo. The defence is opposed to the admission of these statements because: (1) many of the statements the Crown seeks to tender do not fall within the co-conspirators’ exception to the hearsay rule and are therefore not even presumptively admissible; (2) the necessity requirement of the principled approach is not satisfied as for most of these utterances the declarant is available to testify for the Crown; and (3) the reliability requirement of the principled approach is not satisfied given the specific facts of this case.
[ 6 ] The parties also disagree as to a preliminary issue. The accused submits that the Court should determine on voir dire whether these utterances should be provisionally admitted in the trial proper, i.e. whether there is some evidence that would permit the jury to find that they fall within the co-conspirators’ exception. The Crown submits that, pursuant to Carter all of these issues should be left for the jury to decide. I shall address this latter issue first.
III. IS A VOIR DIRE NECESSARY?
[ 7 ] In this case the Crown’s position is that, absent exceptional circumstances, all of the issues raised by the accused are properly to be decided by the jury as they proceed through the three-step Carter analysis. As these undefined exceptional circumstances do not exist in this case, the court should not usurp the jury’s role during a pre-trial application. The defence submit that a voir dire is necessary to consider whether the proposed evidence falls within the co-conspirators’ exception and, if it does, whether its admission would comply with the principled approach to the admission of hearsay
[ 8 ] In Bogiatzis, Rosenberg J.A. made it clear that the trial judge does have a role to play in determining whether the proposed evidence falls within the co-conspirators’ exception:
[T]he trial judge does have a role in determining whether statements meet the in furtherance requirement. The role, however, is a modest one. The trial judge must merely determine whether there is some evidence upon which a jury could find that the declaration was made in furtherance of the conspiracy. [5]
[Emphasis added.]
Thus, where an objection is raised the trial judge must determine whether, “the conversations were capable of being in furtherance of the conspiracy.” [6] Clearly, contrary to the Crown’s submission, this is something that should be done in a pre-trial voir dire. [7]
[ 9 ] The Crown’s broad submission that a voir dire is unnecessary is also inconsistent with the statement in Starr that, when a party challenges the admissibility of evidence falling with a traditional exception as inconsistent with the principled approach:
The trial judge will determine the procedure ( whether by voir dire or otherwise) to determine admissibility under the principled approach's requirements of reasonable necessity and reliability. [8] [Emphasis added.]
[ 10 ] In terms of arguments based on the principled approach, the Crown’s argument that no voir dire is necessary was even more clearly rejected with respect to the co-conspirator’s exception in R. v. Chang at para. 130 where the court said:
Given that, in future, evidence that comes within a hearsay exception will still be subject to the principled approach, the question arises whether it should be judges or the triers of fact who test co-conspirators' declarations against the necessity and reliability criteria when it is necessary to do so. In our view, this task should fall to the judges for two reasons. First, there will be greater consistency in approach if the judges, rather than juries, make these types of decisions. Second, applying the Carter analysis to co-conspirators' declarations is often a complex task for a jury. Adding to that a further instruction, that in exceptional cases the evidence should be excluded if it does not meet the requirements of necessity and reliability, would be unduly burdensome and confusing. If the trial judge determines that a voir dire is necessary to screen a declaration against the necessity or reliability criteria, the voir dire should be held before the case is left with the trier of fact.
[Emphasis added.]
[ 11 ] But, as the last sentence in the above quotation from Chang makes clear, the issue in a case such as this is how a trial judge should determine whether or not a voir dire is necessary. Answering this question requires a consideration of the relationship between traditional hearsay exceptions and the principled approach to hearsay.
... (text continues exactly as in the source through paragraph [125] and footnotes) ...
T. Ducharme, J.
Released: July 13, 2012