COURT FILE NO.: 10-2526

DATE: 2012/11/14

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

B. Bentham, for the Crown

- and -

Ryan James King

H. Epstein and P. Zbarsky for Ryan King

HEARD: September 4, 5, 6, 7, 10, 2012

REASONS FOR JUDGMENT

Arrell J.

Introduction:

The Applicant, Ryan King, brings this application to have all 40 intercepts, which the Crown seeks to tender at trial, ruled inadmissible on the basis of irrelevance, and/or that their prejudicial effect outweighs any probative value.

Facts:

[1] In the early morning hours of March 22, 2003, Mr. John Daly was stabbed in the head with a screwdriver by an individual alleged to be Mr. Ryan King, who is now charged with second degree murder.

[2] During the course of the investigation the police obtained a Part VI Authorization to intercept the private communications of the Applicant for a period of 60 days commencing on September 16, 2008. During the authorization period, the police intercepted a number of the Applicant’s private communications.

[3] It is alleged that in the early morning of March 22, 2003, John Daly was walking home after a night spent socializing with friends in the east mountain area of Hamilton. As Mr. Daly neared his home, he spotted the Applicant and Ryan Fitzpatrick attempting to enter cars in the area of Queensdale Avenue and East 34th St. Upon being discovered, the Applicant and Fitzpatrick began to leave the area and were followed by Mr. Daly, who called out for them to stop.

[4] The Applicant and Fitzpatrick stopped near the intersection of East 33rd St. and Munn Ave. The Applicant then went towards Mr. Daly and stabbed him in the head with a screwdriver that he was carrying, as Fitzpatrick looked on. Mr. Daly fell to the street, fatally injured. The Applicant and Fitzpatrick then fled back to an apartment located at 1 East 35^th St.

[5] In the course of the ensuing investigation, the police examined the possible involvement of a number of different individuals. In 2008, their focus turned to a group that included the Applicant and Ryan Fitzpatrick. The police conducted interviews with a number of persons associated with the two and received information, that on the night John Daly was killed, the Applicant and Fitzpatrick were out in the east mountain area of Hamilton committing thefts from vehicles. The information received further indicated that it was the Applicant that stabbed Mr. Daly with a screwdriver, before he and Fitzpatrick fled back to the apartment at 1 East 35th St.

[6] In August, 2008, Ryan Fitzpatrick provided a sworn statement to police after initially being arrested and then released, without charge, in connection with the murder of John Daly. According to Fitzpatrick, on the night of John Daly's death, he and the Applicant were committing thefts from vehicles near the apartment at 1 East 35th St. on the east mountain. They were interrupted by the deceased, who followed them. The Applicant then stabbed Mr. Daly in the head with screwdriver as Fitzpatrick stood nearby. He and the Applicant then fled back to the same apartment from which they had started out earlier in the evening.

[7] On September 16, 2008, a Part VI Authorization was granted for a period of 60 days, permitting the interception of the Applicant’s private communications. During the currency of the authorization, police initiated a number of investigated ploys in the hope of stimulating conversations regarding the homicide. A “composite” sketch was released to the media of the suspect that was in fact based on a photograph of the Applicant. In addition, police were able to arrange for a link to be sent to the Applicant's home computer which connected to a Crime- stoppers re-enactment of the homicide. This link contained a videotaped appeal from Julie Daly, widow of the deceased, asking for the public's help in solving the killing of her husband.

[8] On October 29, 2008, police interviewed Justin Schultz, a onetime associate of the Applicant. Jail records confirm that Schultz was in custody at the Hamilton Wentworth Detention Center at the time of the killing. Schultz told police that while he was in custody, he had a phone conversation with the Applicant in which the Applicant admitted responsibility for the fatal assault upon John Daly. According to Schultz, upon his release from custody, he had further conversations with the Applicant regarding his involvement in the death of John Daly.

[9] On November 4, 2008, the Applicant was arrested and charged with the second-degree murder of John Daly. On November 13, 2008, police arrested Alan King, the Applicant's brother, on a charge of obstruct justice. This charge was in connection with an incident, revealed in the course of the intercepted communications, where the Applicant was alleged to have been caught by police breaking into vehicles in the mountain area of Stony Creek on February 9, 2002. It is alleged that the Applicant falsely identified himself to police as his brother, Alan King, and was charged and released under that name. As a result, Alan King was arrested on May 2, 2002, for failing to appear in court in connection with the theft charge. He was held in custody until July 8, 2002 when he pleaded guilty and received a time served sentence.

[10] Following Alan King's arrest on November 13, 2008, he was taken into custody by the police. Alan King told police he was sorry about this incident, (obstruct justice), and that he had pled guilty to the 2002 charges because the Applicant had asked him to. The police decided not to charge Alan King regarding the 2002 incident. Instead, they told Alan King that they were aware that he had knowledge about the homicide as a result of intercepted communications that he was a party to. Alan King then provided a sworn statement to police indicating that on the night of John Daly's death, the Applicant and Ryan Fitzpatrick left his apartment at 1 East 35th St. to break into cars. According to Alan King, the following day the Applicant told him while he was breaking into cars “a guy said he had 20 guns pointed at him so [he] got scared and stabbed him in the head and then threw the screwdriver down the sewer”.

Position of the Parties:

[11] The crown argues the intercepts are relevant and their probative value outweighs any prejudicial effect they may have. The intercepts, according to the crown submissions, support the following propositions:

a) They go to the credibility of the Applicant by showing he lied to his parents about speaking to the police and being cleared by them;

b) They show he attempted to prevent his brother Alan King from speaking to the police;

c) They show the Applicants attempts to make contact with the witness Justin Schultz;

d) They show admissions by the Applicant of his involvement in the murder;

e) They show attempts by the Applicant to contact Ryan Fitzpatrick, who also appears to be a witness against him.

[12] The defence argues the intercepts are completely irrelevant, have no probative value, and are highly prejudicial. It disagrees with the crown that the Applicant makes any admissions of any involvement in Mr. Daly’s murder. The Applicant urges me to find that admitting the intercepts would cause an unfair trial for him and therefore the interests of justice require their exclusion.

Analysis:

[13] The crown originally sought admission of all 40 intercepts set out in the Application Record of Mr. King. At the beginning of oral argument it abandoned its request to rely on intercepts #7, 35, 36, and 37. It is seeking admission, in whole and in some cases in part, of the balance of the 40 intercepts. I will rule on those under the headings as presented to me in oral argument.

[14] Evidence is admissible if it is relevant and is not excluded by the operation of a rule of evidence. In addition, the trial judge retains the discretion to exclude logically relevant evidence as being too slight in significance, having too conjectural and remote a connection, or as being dangerous in their effect upon the jury.

R. v. Morris (1983) 1983 28 (SCC), S.C.J. No. 72 (SCC) at p. 8

[15] For one fact to be relevant to another there must be a connection or nexus between the two which makes it possible to infer the existence of one from the existence of the other. One fact is not relevant to the other if it does not have real probative value with respect to the other.

R. v. Cloutier (1979) 1979 25 (SCC), S.C.J. No. 67 (SCC) at p. 16

[16] The fact that evidence that could indicate a consciousness of guilt may also be consistent with an innocent explanation is not sufficient, in itself, to require the trial judge to take the evidence away from the jury. If the evidence is reasonably capable of supporting an inference of consciousness of guilt, then the trial judge should let the jury decide what use to make of it, provided the judge carefully instructed them that there may be alternative explanations for the accused’s conduct that is not capable of supporting an inference of a consciousness of guilt.

R. v. Dui (2000) 2000 4535 (ON CA), O.J. No.1770 (OCA) at paras. 119-121

R. v. Chenier (2006) 2006 3560 (ON CA), O.J. No. 489 (OCA) at paras. 103-105

[17] Evidence that an accused person has engaged in efforts to discourage or prevent persons from speaking to the police is capable of demonstrating a consciousness of guilt and is therefore admissible.

R. v. G.R. (1993) O.J. No. 600 (OCA) at pp. 4-5

R. v. J.A.T. (2012) 2012 ONCA 177, O.J. No. 1208 (OCA) at paras. 141-155

[18] The potential evidentiary value of false statements by an accused turns on generally applicable principles of relevance and materiality as applied to the circumstances of the particular case. Where a trier of fact is satisfied that an out of court statement made by an accused is false, the circumstances in which the statement was made and the content of the statement may reasonably permit the trier of fact to conclude that the statement is not only false but was fabricated to conceal the accused’s involvement in the offence.

R.v. Paul (2009) 2009 ONCA 443, O.J. No. 2184 (OCA) at paras. 23-24

[19] It is the duty of the trial judge to exercise his or her discretion to exclude evidence that would result in an unfair trial.

R. v. Harrer, 1995 70 (SCC), [1995] S.C.J. No. 81 at para 21 (SCC)

[20] Relevance includes both logical and legal relevance. Logical relevance refers to the relationship between the evidence and the fact in issue it is tendered to establish. Legal relevance involves a cost-benefit analysis and should be excluded if:

a) Its probative value is overborne by its prejudicial effect;

b) It involves an inordinate amount of time that is not commensurate with its value; or

c) It is misleading in that its effect on the trier of fact is out of proportion to its reliability.

R. v. Mohan, 1994 80 (SCC), [1994] S.C.J. No. 36 at para 18 (SCC)

[21] When assessing the probative value of evidence as against its prejudicial effect, the court should apply the reasons and principles as set out by the Supreme Court of Canada in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 (SCC) and applied in R. v. Sandham:

“In determining probative value, the issue in question must be identified, the relative importance of that issue should be considered, and the strength of the inference assessed. In evaluating prejudicial effect, moral prejudice (the improper inference of guilt from evidence of general disposition or propensity), reasoning prejudice (distraction of the jury flowing from inflammatory evidence, the creation of a distracting side issue, or the undue consumption of time), unfairness to the witness, and unfair surprise are considerations.”

R. v. Sandham, [2009] OJ No.4530 at para. 15

a) Credibility of the Applicant:

[14] Intercepts # 1, 2, 3, 8, 9, 10 and 11 deal with the Applicant lying to his parents about having spoken to the police. I reject #1 as having no probative value. It is 11 pages of mostly unintelligible gibberish which makes little sense. It speaks of gang membership which is highly prejudicial. It does make it clear that the Applicant knew the police had released a composite sketch of him but that is of little value and repetitive given my ruling on intercepts #2 and #3.

[15] Intercepts #2 and #3 are recordings of the Applicant calling the police and leaving a voice message indicating he was aware that the composite drawing of himself was released. I can see no reason why these two conversations initiated by the Applicant with the police would not be admissible. They clearly indicate the Applicant knew the police had released a prior composite drawing of himself and that he was at the very least a person of interest to them.

[16] Intercept #8 records a call from the Applicants father advising that the police came to his house asking if he would have the applicant call them to which he assures his father he will call. The next day during intercept #9 the applicant between lines 1-10 advises his father he spoke to the police and that they had no concerns about him. Two days later the Applicants mother is having a conversation with Amanda Sowtus, the Applicants girlfriend, with the applicant in the background. His mother asks if he called the police to which he answers yes and in answer to his mother’s further question indicates he will not be a suspect. This exchange occurs between lines 67-76 of intercept 10. Finally, on October 7^th at lines 35-40 of intercept 11 the Applicant again tells his father he spoke to the police. The evidence is uncontradicted that the Applicant never spoke to the police except for the 2 messages he left in intercepts 2 and 3.

[17] The crown tenders these intercepts to show that the Applicant lied to his parents and therefore his credibility is suspect and that the lies were told for the purpose of concealing his involvement in these offences. I disagree. The Applicant has the right to remain silent. What he tells his parents to keep them from worrying is not relevant. The prejudice to the Applicant in front of the jury that he lied to his parents is high, as is the fact that he did not talk to the police, to which he had every right. The probative value of the evidence, in my opinion, is low in showing any implication or inference of involvement of the Applicant in this crime. At best it is highly speculative that his lying to his parents infers some involvement by him in Mr. Daly’s murder.

[18] As a result intercepts #1, 2, 3, 8, 9, 10 and 11 are not admissible.

Efforts to Silence Alan King: (intercepts #1, 12, 13, 14, 15, and 40)

[19] Alan King, the brother of the Applicant, gave a statement to the police confirming that the Applicant admitted his involvement in the stabbing of Mr. Daly. It is anticipated that Alan King will be called by the crown to give evidence.

[20] I find intercept #1 to be not relevant in totality. It is convoluted, unclear and full of “unintelligible” words which if known might significantly alter the context of the dialogue. Specifically, the other comment the crown feels is relevant at line 359 “don’t talk to anybody about it” should also not be admitted as it is unclear as to whether this comment by the Applicant is directed at his girlfriend or his brother.

[21] Intercept 12 involves a conversation between the Applicant and his father, who relates that the police had visited him and wanted to talk to Alan, the Applicant’s brother. This evidence provides the nexus for later intercepts on this issue and shows that the Applicant, as of the date of this conversation being October 8, 2008, was aware that the police wanted to talk to his brother about the Daly murder. I find this intercept to be relevant, probative and of little prejudicial effect to the Applicant. I would therefore admit lines 1-18 inclusive. The balance of the intercept is not relevant and overly prejudicial in commenting on the Applicant being told by his father to tell the truth and straighten things out with the police.

[22] Intercept 13 is a message from the Applicants father again indicating the police had been around and wanted to talk to both the Applicant and his brother and that they should be nice and straighten everything out with the police. This statement simply repeats the evidence of the previous intercept confirming that the Applicant knows the police want to talk to his brother. It adds nothing to the evidence, is repetitive, and prejudicial with the fathers insistence on the boys straightening things out with the police. This intercept will not be admitted.

[23] Intercept 14 is a conversation between the Applicant and his brother whereby the Applicant advises his brother he is not going to speak to the police without a warrant. His brother responds that he plans to tell the police he doesn’t want to talk to them and the Applicant responds “yeah yeah yeah yeah exactly”. The Applicant also goes on to tell his brother “they can’t arrest you for nothing”. It is clear that the Applicant is encouraging his brother not to speak to the police and that in my view is probative and lines 3-26 inclusive will be admitted.

[24] Intercept 15 is a discussion between the Applicant, his girlfriend and his father who again mentions the police had been to see him and the Applicant wonders ‘if Al told them (unintelligible)”. His father comments that the police should be told that Al is on medication for Schizophrenia and might act weird. There is nothing in this intercept to infer that the Applicant is in anyway suggesting his brother should not talk to the police and as such I conclude it is not relevant or probative and will not be admitted.

[25] Intercept 40 is the Applicant calling his mother and girlfriend, after his arrest, from the Hamilton-Wentworth Detention Centre. This conversation spends many minutes talking about the Applicants car, getting legal aid, the CAS, two people on his range being convicted that day, payment of his mortgage, drugs and other general discussions which are of no relevance to this case and parts are clearly prejudicial. However, at lines 355-366 inclusive the Applicant clearly states to his mother that she should make sure that she tells his brother Al to say “no comment” when questioned by the police. I conclude that that part of the conversation should be admitted as it is capable of inferring that the Applicant is attempting to silence his brother and is therefore probative and relevant. It, of course, must be read in the context that the Applicant knows his brother has evidence of his guilt. Therefore lines 1-13 inclusive, to give context to this call, will be admitted along with lines 355-369 inclusive.

Efforts to Silence Schultz (intercepts 15, 21, 30, 39)

[26] Intercept 15 has 3 lines where the Applicants father suggests Schultz may be involved and the Applicant responds “Schultz no I don’t think it was him”. The Crown argues the Applicant knows it is not Schultz because it was himself and therefore shows consciousness of guilt. The defence argues the comment is just as likely to mean he knows it is not Schultz because he was in jail at the time of the murder and therefore could not have been involved. As stated in R. v. Dui, supra and R. v. Chenier, supra;

“The fact that evidence that could indicate a consciousness of guilt may also be consistent with an innocent explanation is not sufficient, in itself, to require the trial judge to take the evidence away from the jury.”

[27] Intercept 15 lines #1-10 inclusive which gives context to lines #83-90 inclusive will be admitted as relevant, probative and not in themselves prejudicial. It will be up to the jury, after receiving my instructions on the issue, to decide what use to make of the comments.

[28] Intercept 21 is a conversation between the Applicant and his girlfriend about Schultz and that they think he has talked to the police and has lied to them. The Applicant is annoyed Schultz has not called him to advise that he has spoken to the police. I conclude this conversation provides evidence as to the Applicants state of mind that Schultz has spoken to the police, he is annoyed about that and wants to talk to him. However, this evidence goes no further than that. None of this conversation or subsequent ones under this heading indicate that the Applicant is trying to silence Schultz, and that argument is mere speculation. In fact, from this conversation the more probable inference is that the Applicant wishes to speak to Schultz to find out what he told the police, not necessarily to keep him from speaking to them. This intercept will not be admitted.

[29] Intercept 30 is someone phoning from the Applicants phone to an unknown female who says hello and the connection is ended. The crown argues this is the Applicant trying to contact Schultz but since he does not answer the Applicant disconnects. I conclude this to be mere speculation and this evidence has no probative value. There is no evidence as to who is phoning or who answered, never mind that the purpose of the call is totally absent.

[30] Intercept 39 is again someone using the Applicants phone to reach a phone registered to George Schultz, the father of Schultz. There is no conversation. There is nothing to confirm the call was initiated by the Applicant. This call is not relevant and has no probative value. It will not be admitted.

Admissions by Accused (intercepts 4, 5, 6, 16, 17, 18, 19, 20, 22, 23, 24, 25, 26, 27, 28, 34)

[31] The crown argues that intercepts 4, 5, and 6 indicate the Applicant strongly suspected that his communications were being listened to by the police. The crown submits that statements in the balance of the intercepts under this heading, if read in this context, can reasonably be interpreted as admissions of responsibility. The defence argues there are no admissions whatsoever by the Applicant and therefore none of these intercepts are relevant or probative. Intercept 4 does not indicate that the Applicant was aware he was being bugged and therefore will not be admitted. However, intercept 5 makes it clear that he and his girlfriend are aware the police have bugged their home and it will be admitted. I find intercept 6 at lines 36-46 inclusive to be overly prejudicial, of little additional probative value and repetitive since #5 is admitted. [32] I find nothing in intercept 16 that could in any way be interpreted as an admission or be capable of inferring such and will not be admitted. Intercept 17 is a text from an unknown person using the Applicants girlfriends’ phone to a phone normally used by the Applicant asking why they think it is him. This cannot be construed as an admission by the Applicant when it does not even originate from his phone. Nor is there any evidence to indicate who is doing the texting or who is receiving the message. This intercept will not be admitted.

[33] Intercept 18, at lines 58 -69 inclusive, is referring to the crime stoppers video sent to the Applicants computer and he mentions two suspects which he and his girlfriend relate to what they heard on the video. The crown argues this comment can be interpreted that his comment about two suspects is because he was one of them. I disagree. The statement is clear that he is referring to what he heard on the video “…they don’t really talk much about the second guy”. I fail to see how this statement can be interpreted as an admission and it will not be admitted.

[33] Intercept 19 for the most part makes no sense other than the Applicant and his girlfriend are complaining about the police and that something was sent to the girlfriend that he should watch which I assume again is referring to the crime stoppers video. There is nothing in this statement that could be interpreted as an admission and the content is highly prejudicial regarding the derogatory comments made towards the police. It will not be admitted.

[34] Intercept 20 involves the Applicant, his girlfriend and brother listening to the crime stoppers re-enactment of the Daly murder and then the 5 minute, heart wrenching, plea of Mr. Daly’s widow to the public asking that they assist the police. The crown argues there is a clear admission at line 19 and 20, which overcomes the significant prejudice that this video being played in the background will have on the jury. I disagree. This is a highly charged, emotional and tearful plea by the widow of a murder victim who without doubt would have a tremendously sympathetic effect on the jury. It is highly prejudicial to the Applicant as the accused and should not be admitted on that ground alone. It can be compared to a victim impact statement being read before conviction. It should also not be admitted because in my view the crown has not shown it to be an admission by the accused. The transcript produced reads as follows “Yeah I know bunch ah bullshit (unintelligible) shut the fuck up (unintelligible) the wrong mother fucker”. The crown argues he and the police hear the words “ran into” in place of the second “unintelligible”. I do not. The defence does not. I listened to the tape on 3 separate occasions after it was supposedly enhanced. The transcriber for the police also did not hear these words. Based on the use of the current equipment, I have not been persuaded these words were spoken nor do I think they would be discernable to the jury, and for that reason, as well, this intercept should not be admissible.

[35] Intercept 22, is the Applicants girlfriend telling him she is going to her mothers and he should talk to the police. He has no obligation to talk to the police and her urging him to so is very prejudicial. Intercept 23 is a series of texts from someone using the phone the Applicant usually uses to the phone his girlfriend usually uses telling her to be strong. There is no evidence of who sent the text or who received it. In my view neither of these intercepts are relevant and both highly prejudicial and therefore will not be admitted.

[36] Intercept 24 deals with the Applicants girlfriend speaking to him and being very upset about the possibility of her being charged and investigated for murder. The Applicant at lines 91 -94 tells her to relax that it is probably him who is going to get charged with murder. The crown argues this is evidence that a jury could infer that he knows he will get charged because he was involved while the defence argues this is an innocent comment because he already knows he is a suspect. Lines 72-99 inclusive are admissible as evidence that the jury can interpret as it sees fit and give such weight to it as it feels is appropriate. R. v. Dui, supra and R. v. Chenier, supra.

[37] Intercept 25 is not relevant or probative. It involves the Applicants girlfriend talking about her fear of being charged. There is no comment by the Applicant, in my view, that could be capable of inferring consciousness of guilt on his part.

[38] Intercept 26 has the applicant’s girlfriend and him talking about her conversation with her potential lawyer who mixes up her boyfriend as being Ryan Fitzpatrick, and she concluding that he must be the second suspect to which the Applicant responds “Yeah of course it’s the second person”. Lines 1-30 inclusive are admissible as capable of 2 interpretations, as with intercept 24, and it is for the jury to decide what weight, if any, it will attach to this comment of the Applicant.

R. v. Dui, supra and R. v. Chenier, supra.

[39] I find nothing in intercept 27 that is relevant or probative. It is basically a conversation between the Applicants girlfriend and another female talking about her possible arrest. It will not be admitted. Intercept 28 involves a number of minutes of conversation by the Applicants girlfriend, a Mr. Wiseman and the Applicant. They discuss possible lawyers for the girlfriend. As well, Mr. Wiseman speaks of an unrelated murder where the police wanted him to testify and the Applicant responds “That’s different (unintelligible) uh murder that I committed they they think (unintelligible)”. This comment has too many gaps to make it reliable. It is also highly prejudicial in its present form with these gaps and will not be admitted. It has the potential of being very misleading to the jury “…in that its effect on the trier of fact is out of proportion to its reliability.” Watt, David. Watt’s Manual of Criminal Evidence. Carswell, 2011at 26.

[40] Intercept 34 is a conversation between the Applicant and his girlfriend about him not being the type of person to have a weapon. He states “I don’t know if someone’s if someone’s gonna approach me for fuckin breaking into cars I’d (unintelligible) them up why the fuck would I have to uh ya know fuckin kill a guy that’s ridiculous (unintelligible) that’s they’re gonna look at well the pat life like the past d’ya know”. The crown argues these comments are an admission of guilt. I disagree. These words are not, in my view, capable of inferring a consciousness of guilt. This statement is not relevant or probative. At most it is speculation on what the Applicant might do in a given situation and is incomplete with unintelligible parts that of course might significantly alter the context and meaning of the words. It is, as well, highly prejudicial. It will not be admitted.

INTENTION TO CONTACT RYAN FITZPATRICK:

[41] Intercept 29 is a conversation between Al King, the Applicant and his girlfriend again relating to the lawyer she saw initially who thought she was the girlfriend of Fitzpatrick. The crown argues this is when the Applicant concludes that Fitzpatrick is the second suspect and sets up the nexus for wanting to contact him. I disagree. The Applicant concluded in intercept 26 that Fitzpatrick was the second suspect. This conversation adds nothing to that prior evidence and is therefore irrelevant and will not be admissible. In any event, the only one who mentions Fitzpatrick as the second suspect is the Applicant’s girlfriend, not the applicant as in intercept 26. There is also no comment by the Applicant in this conversation that he wants to speak to Fitzpatrick.

[42] The crown argues intercept 31 has the Applicant, when taken in context with earlier intercepts, speaking about Fitzpatrick and that he should call him. I disagree. This conversation gives no indication who the Applicant is speaking of and it is mere speculation that he may be speaking of Fitzpatrick. This conversation is not relevant or probative and will not be admitted. The only comment in intercept 32 has the Applicant saying “I dunno (unintelligible) gotta talk to Fitz and let him know fuckin he (unintelligible)”. Although this shows that the Applicant may have wanted to talk to Fitzpatrick nothing, in my view, turns on it. Even though Fitzpatrick may have been a suspect, and the Applicant was aware of that fact, there is nothing in this intercept that could be interpreted as consciousness of guilt on the part of the Applicant or that he was attempting to contact Fitzpatrick to silence him. It will therefore not be admitted. Likewise intercept 33 has no probative value and will not be admitted.

[43] In intercept 38, officer Levy who is posing as a cellmate of Fitzpatrick’s, contacts the Applicant to set up a meeting involving Fitzpatrick and “some stuff he wants to get to you”. The Applicant indicates some interest in meeting, although reluctantly, because he appears unsure as to whether Levy is a police officer. The meeting never happens. In my view this conversation has no probative value and will not be admitted. As well, it is prejudicial that the Applicant does not want to talk to Levy even though he has a right to silence.

Conclusion:

[44] For the reasons given the intercepts, or parts thereof, as indicated are admissible as part of the crown’s case if so advised.

_______________________

ARRELL, J.

Dated: November 14, 2012

COURT FILE NO.: 10-2526

DATE: 2012/11/14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

- and -

RYAN KING

Applicant

REASONS FOR JUDGMENT

ARRELL, J.

Released: November 14, 2012