SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CJ 7628
DATE: 2013-04-24

RE: HER MAJESTY THE QUEEN v DAVID TRAN VU, TREY ALEJANDRO DIAZ, NICHOLAS JAMES TALMAGE PERRON and HIEU PHUOC NGUYEN

BEFORE: The Honourable Mr. Justice D.A. Broad

COUNSEL:
A. Rajna and S. A. McLean, for the Crown

A. Trica, for the accused David Vu

P. Thorning, for the accused Trey Alejandro Diaz

Y. S. Rahamim, for the accused Nicholas James Talmage Perron

H. Van Drunen, for the accused Hieu Phuoc Nguyen

HEARD: April 11 and 12, 2013

RULING #3 Re Exclusion or Editing of Text Messages

[1] The accused are jointly charged with robbery with a firearm and possession of marijuana for the purpose of trafficking. David Tran Vu (“Vu”) and Trey Alejandro Diaz (“Diaz”) are additionally charged with attempted murder. The offences are alleged to have occurred on July 6, 2011 in the City of Waterloo during a drug transaction that went bad.

Nature of the Applications

[2] An Application was brought on behalf of the accused David Tran Vu, Nicholas James Talmage Perron and Hieu Phuoc Nguyen for an order excluding certain text and BBM conversations delivered via cellular telephone which the Crown seeks to introduce at trial. A separate Application was brought on behalf of the accused Trey Alejandro Diaz for a similar order excluding certain text and other typed messages delivered via phone. Both applications are stated to rely upon the common law and upon ss. 7 and 24(1) of the Charter of Rights and Freedoms.

Background

[3] Counsel for the accused and for the Crown were able to reach agreement on the exclusion or required editing of the many of the text messages which were referenced in the applications.

[4] The text messages which remain in issue generally comprise communications between certain of the accused respecting the formulation of plans for certain of them to travel from Alberta to Ontario to carry out a series of "drug rip-offs" or robberies, as well as communications after the incident which is the subject of the indictments. The Crown's position is that, in the various text messages, robberies are referred to as "jobs" and "eats” or "eating."

Applicable Principles

[5] The parties are agreed that the principles enunciated in the case of R. v. Handy 2002 SCC 56 (SCC) are applicable, including the principle that similar fact evidence is presumptively inadmissible unless the prosecution satisfies the onus on it to show, on a balance of probabilities, that the probative value of the similar fact evidence outweighs its potential for prejudice.

[6] The Crown agrees that evidence of a general disposition and bad character can give rise to moral and the reasoning prejudice. However, it argues that it is entitled to lead evidence of the offenses themselves, as well as the planning that went into them. Evidence of the planning of the offenses is presumptively admissible, as long as references to subsequent planned offences are removed.

[7] As indicated in the case of R. v. Belcourt 2012 BCSC 1526 (BC SC) at para. 19, there are two ways in which the prejudicial impact of text messages in this context may be mitigated. The first would be to edit out any prejudicial statements within the messages concerning obviously unrelated criminal activity or planning. The second method would be to provide clear mid-trial and end-of-trial warnings to the jury against the prohibited chain of reasoning.

Application of Principles to Text Messages in Issue

[8] Following the application of the principles referred to above, the text messages which remain in issue, and the disposition respecting any required editing or exclusion, and the reasons for each disposition, are set forth below:

Number/Date/Time

Text Message

Edited Version/Exclusion

Reason

#564 – June 20, 2012 at 6:10:05 – Perron to Diaz

I got the jobs ready bro

I got the job ready bro

Change plural “jobs” to singular to remove possible reference to multiple robberies

#565 – June 20, 2012 at 6:10:18 – Perron to Diaz

Got alotta work for u n mob

Got work for u n mob

Remove “lotta” to remove possible reference to multiple robberies. The Crown will lead evidence that

“mob” is a reference to a person not to a criminal organization. Limiting instruction can be given to deal with any potential prejudice from the use of the word “mob”.

#569 -

U can give him some of ur cut but I’m not cutting no one else I wasted money to fly down n eat twice deez ones are mine unless he gonna take my position well I sit back n relax then ok but he gonna need to rent a whip for these jobs.

U can give him some of ur cut but I’m not cutting no one else unless he gonna take my position well I sit back n relax then ok but he gonna need to rent a whip.

Removal of references to "jobs" and "eat twice" to remove possible reference to multiple robberies

There is evidence that a “whip” is a vehicle.

571 - June 20, 2011 at 6:32:04 – Perron to Diaz

Is u guys do right ill set up jobs all summer down I got allota ears out around tdot

Exclude

Text points to enticement by Perron to Diaz to come to Ontario with promise of future “jobs” or robberies. This suggests that Diaz is the type of person who is susceptible to being enticed into committing multiple criminal acts. Crown seeks admission of this text on the basis that it provides an explanation for jury as to why the three accused would travel from Alberta to Ontario to carry out one robbery involving only 5 pounds of marijuana. Prejudicial effect in reference to multiple “jobs” outweighs probative value. If any accused proposes to introduce this question into evidence or put it to the jury, admissibility of this text may be revisited under doctrine in R.v. Niemi 2008 O.J. No. 4621 at para. 16.

#579 – June 20, 2011 10:30 p.m.

Oh hang not giving jobs? Only three peeps that’s it?

Oh hang

Defence argues that edited text “Oh hang” is devoid of context and meaning and is therefore not logically relevant. However, Crown’s theory is that “hang” is a nickname for the accused Nguyen. The text message between the accused Perron and Diaz is probative of the planning of the robbery of Balogh and the identities of the robbery participants and their nicknames , and there is no prejudicial effect.

#637 – June 21, 2011 at 6:55:16 - Perron to Diaz

U guys get ready I garentee ull eat easy in t o the ones I got are soft

U guys get ready I garentee ull eat easy in t o

Edit out “the ones I got are soft” to remove reference to multiple planned robberies. Whether “eat” and “eating” connote plural or singular depends on context. In this case “eat” is not indicative of multiple robberies.

#661 – June 21, 2011 at 11:09.38 – Diaz to Perron

Kk soon as I getf flow im out and we eat

No edit or exclusion

“Eat” does not connote more than one robbery in this context.

#663 – June 21, 2011 at 11:10.33 – Diaz to Perron

Will eat

No edit or exclusion

“Eat” does not connote more than one robbery in this context.

#967 – June 25, 2011 at 4:20:00 - Perron to Diaz

We eat a bunch of idoits out here dog like 10 small ones is still 100 gs

Exclude

Editing down to “we eat here dog” does not remove prejudice. In context “we eat” suggests “eating” generally and therefore possible reference to multiple robberies.

#994 – June 26, 2011 at 8:58:20 - Perron to Diaz

Got 3 ready

Ready

Edit reference to multiple robberies. “Ready” probative of planning one robbery.

#4405 - July 7, 2011 1:01:44 – Vu to Perron

O all good haha; well I gotta eat al tomo bro

O all good haha

Text message is post-incident. Edit to remove reference to additional robbery or robberies.

4407 - July 7, 2011 1:02:55 – Vu to Perron

They just took a big dinner away from my belly; I’m even more hungry

They just took a big dinner away from my belly

Edit out reference to intention to commit more robberies

#2379 – June 30, 2011 at 6:48:59 - Perron to Nguyen

U guys coming to eat or no I need to kno doggy so I get goons ready or not

U guys coming to eat or no I need to kno doggy

Remove reference to “goons” as prejudicial. “Eat” does not connote multiple robberies in this context.

2059 -

Yo he sayin he got one right now will deliver it 8 bills but it got two bodies on it and one was a store owner from a robbery think that’s to hot

Yo he sayin he got one right now will deliver it 8 bills

Reference is to a plan to acquire a firearm for use in the robbery and issue is that particular firearm had been used in previous crimes including a robbery. Remove references to “bodies” and “robbery” as being prejudicial. . However, if any accused suggest that term “dirty” in surrounding text messages, in reference to a firearm, means anything other than having been used in a previous crime, the editing of this text may be revisited under doctrine in R.v. Niemi 2008 O.J. No. 4621 at para. 16.

July 5, 2011 – 19:56:12

Kan u niggas wait?

Kan u wait?

Edit to remove “niggas” as indicative of disreputable use of language. Editing out of term does not affect probative value of text message.

June 16, 2011 5:14 –Tashia Quewezance Apple IPhone – from Baaby (alleged to be Perron)

Hang arrested they took tha whip.

No exclusion or editing

The reference to “arrested” is potentially prejudicial as indicative of prior criminal activity. However, the arrest related to a municipal by-law prosecution, not a criminal charge. The text message is highly probative in establishing the association of the accused Perron and Nguyen (alleged to be “Hang” as referenced in the message) and their being together in Calgary prior to the incident being the subject of the charges. The by-law infringement is not highly discreditable, and in the context of the seriousness of the present charges, there is little likelihood that the jury would engage in impermissible reasoning. See R.v. Kinkead, 2003 52177 (ON CA), [2003] O.J. No. 3480 (CA) at para. 81-83. A limiting instruction may be given to ameliorate any potential prejudice. So long as the jury is given a clear instruction it can be argued that the risk of improper use is outweighed by the much more serious risk of error should the jury be forced to decide an issue in the dark (see R. v. Sims (1995), 59 B.C.A.C. 64 (BC CA) at para. 20, citing Corbett v. The Queen, 1988 80 (SCC), [1988] 1 S.C.R. 670 (SCC)]

Disposition

[9] For the foregoing reasons, the Applications are granted for the editing or exclusion of certain of the text messages sought to be introduced by the Crown, as referenced in the chart set forth above.

D. A. Broad J.

DATE: April 24, 2013