ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-70000832
DATE: 20141128
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SAMSON ARVIKO, HASAN MOHAMMED CUMOR and RUKIYO OMAR
Defendants
J. Pollard and B. Clendenning, for the Crown
S. Freeman, for Samson Arviko
C. Rippell, for Hasan Mohammed Cumor
N. Wansbutter, for Rukiyo Omar
HEARD: October 14 and 15, 2014
molloy j.:
REASONS FOR DECISION #2
(Other Discreditable Conduct)
Background
[1] The three accused are charged with: conspiring together to traffic in cocaine (Count 7); conspiring together to traffic in firearms (Count 1); and possession of a handgun for the purpose of transferring it (Count 6).
[2] In addition, Hasan Cumor and Rukiyo Omar are jointly charged with: unlicensed possession of a Ruger 40 caliber semi-automatic handgun (Count 2); possession of that same handgun knowing the serial number had been defaced (Count 3); and possession of proceeds of crime in the amount of approximately $10,000 (Count 4). The Ruger and the cash were found in a bedroom of a townhouse searched pursuant to a warrant and alleged by the Crown to be occupied by these two accused.
[3] Ms Omar is also charged with possession of proceeds of crime in the approximate amount of $1600, found in her purse at the time of her arrest (Count 5).
[4] A substantial portion of the Crown’s case is based on wiretap interceptions of the three accused talking to each other and others. There is also surveillance evidence that is tendered to corroborate identities and to confirm some of the wiretap information. The cash and the Ruger pistol, which are the subject of Counts 2, 3, and 4 were seized at a residence pursuant to a search warrant.
Evidence of Other Discreditable Conduct Sought to be Adduced by the Crown
[5] The Crown seeks to rely on two types of other discreditable conduct. First, the Crown argues that the various charges against the accused are inter-connected and seeks to be have them considered as a whole by the jury, rather than separately. Thus, the Crown argues e.g. that if the jury is satisfied that an accused person was involved in drug trafficking and/or gun trafficking, that may be taken into account in determining whether he or she was in possession of a firearm or proceeds of crime.
[6] Second, the Crown seeks to adduce a series of 11 wiretap interceptions involving Samson Arviko and other individuals who are not accused persons in this trial. In these calls and text messages, Mr. Arviko is discussing what appear to be drug transactions. The Crown seeks to tender these conversations to demonstrate the nature of the discussions and language used by Mr. Arviko when discussing drugs, in order to distinguish the conversations in other wiretaps which the Crown alleges are about gun trafficking.
General Principles
[7] Generally speaking, evidence is admissible if it is relevant to a charge before the court. Where relevant evidence discloses discreditable or criminal conduct of an accused person separate from the charge on the indictment, it is presumptively inadmissible. However, where such evidence is relevant to an issue to be decided in the case and its probative value exceeds any risk of prejudice arising from it, the evidence may be admitted. The onus is on the Crown to establish on a balance of probabilities that the probative value exceeds the prejudicial effect of the evidence.[^1]
[8] In R. v. LePage[^2] the accused was charged with possession of LSD for the purposes of trafficking. Three people lived in the apartment where the LSD was found. The Supreme Court of Canada held that the trial judge (Pardu J., as she then was) was entitled to take into account the evidence of one of the roommates that the LSD was not his, and also that he knew the accused was a major drug dealer. The Supreme Court recognized that the fact Mr. LePage was a drug dealer was evidence of bad character, but nevertheless held that it was admissible as relevant and probative on the issue of who was the likely owner of the drugs. The probative value overbore its prejudicial effect, provided its use was limited to the issue of ownership, rather than mere propensity.
[9] The rules with respect to the admissibility of prior discreditable conduct apply to the consideration of evidence otherwise not the subject matter of the charges before the court, and also apply to the consideration of evidence between counts on the indictment. Thus, the jury would normally be instructed that they must consider each count individually and not consider that a conviction on one count is relevant to whether there should be a conviction on a separate count. Both situations arise in this case.
Count-to-Count Admissibility
[10] Mr. Arviko is not charged with the possession of the gun or cash found at the townhouse. He is charged with conspiracy to traffic in cocaine and conspiracy to traffic in a firearm. These are separate offences and must be considered separately. There may be some pieces of evidence that are relevant to both offences (e.g. the relationship between the parties, voice identification, place of residence and the like). However, that does not mean that there is any relevance between the two counts themselves. Thus, it is not relevant to the trafficking cocaine count that the accused also trafficked in a firearm, or vice versa.
[11] The situation is different for the proceeds of crime count. There are a number of suspicious circumstances with respect to the cash, such as where it was located, the amount involved, and the way it was bundled. In addition, if Ms Cumor and/or Mr. Cumor are determined to have been involved in drug trafficking it is relevant to take into account whether this, along with the other evidence, gives rise to an inference that the cash represents proceeds of crime. This evidence goes beyond propensity or bad character because it is directly relevant to the likely source of the money. Provided the evidence is not used to infer guilt based solely on bad character, it may be used as part of the overall context of the circumstantial evidence in determining the source of the money. Used in this manner, the probative value outweighs any prejudicial effect. I see this as arising directly from the reasoning of the Supreme Court of Canada in LePage.
[12] Likewise, given the connection between drug trafficking and guns, there may be an inference to be drawn that if a person is a drug dealer and a gun is found under his or her mattress, he or she is the likely owner or possessor of that gun. This would by no means be conclusive, but could be part of the overall circumstantial evidence to be considered in determining possession and control of the gun. Again, in my view, the probative value outweighs any prejudicial effect.
[13] I do not, however, reach the same conclusion with respect to the count involving conspiracy to traffic in a firearm. The evidence with respect to that count is very specific. Only one handgun is discussed – a Beretta. It is not the same gun as the Ruger found under the mattress and does not take the same kind of ammunition. There is no evidence that the gun was actually sold or that any payment was made to Ms Omar or Mr. Cumor for it. Therefore, there is no basis for concluding that the cash in the bedroom is in any way related to the conspiracy to traffic in the Beretta. Likewise, the fact that the parties may have been engaged in trafficking in a Beretta is irrelevant to whether they were in possession of the Ruger. Further, there is no logical basis for inferring that because there was a Ruger under the mattress, the parties were engaged in gun trafficking. These are separate weapons and may well have been possessed for separate purposes. If there is any probative value between these counts, it is very remote. The prejudicial effect, however, is high. It would be nothing more than propensity reasoning to say that because a party had one gun, he therefore had the second gun or was involved in trafficking a second gun. The trier of fact is not permitted to draw such an inference and should be cautioned against doing so. Count 1 (firearm trafficking) must be considered as if in a water-tight compartment and determined without reference to the conclusions on any of the other counts.
Comparator Intercepts
[14] There are 11 intercepted conversations tendered by the Crown, of which one is actually a series of text messages. The accused Samson Arviko is alleged to be one of the participants in all of the intercepts, and for the purposes of this ruling I accept that to be the case. Many of the other participants are unknown persons. None of these calls involve Ms Omar or Mr. Cumor.
[15] I have no difficulty accepting that each of these calls relates to drug trafficking. I also have no difficulty accepting that the language used and the details discussed are quite different from the intercepts relied upon by the Crown in support of the charge of gun trafficking. However, in my view, none of the proposed comparator intercepts are admissible in evidence.
[16] The main difficulty is the extreme prejudice to Mr. Arviko if the intercepts are admitted. He is charged now with conspiracy with Ms Omar and Mr. Cumor to traffic in drugs and a gun. These alleged conspiracies are limited in their scope and nature. The addition of the comparator intercepts would underscore for the jury, to a much greater extent, that Mr. Arviko is a hard-core drug trafficker who basically earns his living in this manner. It is apparent that he is extremely knowledgeable and that this is a business for him, regardless of its criminal nature. It would be extremely difficult for the jury to put Mr. Arviko’s general bad character out of their minds and make a decision based solely on the intercepts relevant to the subject conspiracy, rather than his numerous other drug dealings. This could have an impact not only on the jurors’ impression of Mr. Arviko, but on their opinion of the other two accused as well. It is clear from the intercepts that are the subject matter of the current indictment that the three of them are good friends. A taint on Mr. Arviko’s character could also result in tainting the others.
[17] Against the extreme prejudice to the accused if this evidence is admitted, I must weigh the probative value of the proposed evidence. In my opinion, the probative value is low. I will deal with each of the comparator intercepts contained in the volume marked Exhibit C on the pre-trial applications by reference to the tab number at which they are found.
[18] The Crown argues that the probative value of the comparator intercepts is as an illustration of the type of language that Mr. Arviko uses when dealing in drugs, and in particular that those conversations typically involve details about price, quality, texture, testing, and customer feedback. This is to be distinguished from the kinds of things discussed when the subject matter of the discussions is a handgun.
[19] None of the conversations and text messages are with Ms Omar or Mr. Cumor. Many of the conversations are with people who have never been identified, or who are identified only by a first name (Tabs 1, 2, 3, 4, 6, 7, and 8). Since none of these individuals are involved in the interceptions that relate to either the gun or firearm trafficking charges in this case, the language Mr. Arviko uses in his discussion with them is not necessarily indicative of the way he would be speaking to either Ms Omar or Mr. Cumor. Sometimes, the drug involved is not even cocaine, which also reduces its probative value. Further, as the Crown concedes, many of the drug-related conversations that are relied upon by the Crown in support of the drug trafficking count in this case do not include any discussion about price, quality, colour, texture, or customer feedback. Therefore, the comparison loses much of its probative value.
[20] There are four interceptions (Tabs 5, 9, 10, and 11) involving Jordan Brown, who is also a person Mr. Arviko is alleged to have been speaking to in relation to the firearm trafficking count in this case. In these conversations, things like colour, smell, texture, price and testing with customers are discussed. Two of the intercepts are quite lengthy (Tab 5 is 27 pages and Tab 9 is 71 pages). These interceptions are somewhat more relevant because they show the difference in language between the same two people when discussing drugs as opposed to the subject intercepts that are said to be discussions about a gun. However, they are even more prejudicial in their tone and content than the other comparator intercepts.
[21] However, none of the comparator intercepts would be particularly useful to the jury without the assistance of an expert to give them context and translate some of the slang or jargon terms. Sgt. Babiar testified in the trial itself with respect to drug-related language generally and some of the terms used in the intercepts said by the Crown to be indicative of drug trafficking. Likewise, the report of Senior Firearms Officer Mike Press was filed on consent, dealing with coded language and slang terms in relation to guns and ammunition. In my view, the testimony of these experts accomplishes precisely the same thing that the Crown seeks to achieve through the comparator intercepts – the type of language generally used when dealing in drugs and the type of language used in dealing with guns and ammunition. It would then be up to the jury to determine what was actually being discussed in the subject intercepts.
[22] There is limited probative value in going through the comparator intercepts to show that Mr. Arviko himself uses this type of drug language when he is talking to other people. What limited probative value there may be is greatly outweighed by the extreme prejudice arising from the intercepts, which cast Mr. Arviko very squarely as an active, relatively high-level drug dealer in various areas inside and outside Toronto. This is particularly so in light of the Crown’s ability to establish the same thing through expert evidence that does not directly implicate Mr. Arviko.
[23] Accordingly, I find that none of the comparator intercepts are admissible in the Crown’s case. If, however, Mr. Arviko advances a defence (either directly by calling evidence or through the cross-examination of others) to the effect that the language used by him in the intercepts relating to the gun trafficking count are actually in relation to drug trafficking, the Crown may apply to reopen this issue before the trial judge. At that point, Mr. Arviko’s actual drug-related discussions, particularly with Mr. Brown, might take on more probative value.
MOLLOY J.
Released: November 28, 2014
COURT FILE NO.: 12-70000832
DATE: 20141128
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SAMSON ARVIKO, HASAN MOHAMMED CUMOR and RUKIYO OMAR
Defendants
REASONS FOR DECISION #2
(Other Discreditable Conduct)
Molloy J.
Released: November 28, 2014
[^1]: R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56
[^2]: R. v. LePage, [1995] 1 S.C.R. 654, 1995 123 (SCC)