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 16 and 17, 2014

molloy j.:

REASONS FOR DECISION #3

(Wiretap Edits)

Background

[1] The three defendants 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, which the Crown alleges they occupied and which was searched pursuant to a warrant. 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).

[3] The Crown’s case, particularly with respect to the conspiracy counts, is largely based on the interception of telephone conversations. The wiretap authorizations were found to have been valid in an earlier application. The Crown and defence counsel have agreed on a number of edits to the transcripts and recordings of these calls to excise portions that are irrelevant and/or prejudicial.

[4] They were unable to resolve all of the portions contested by the defence. Those excerpts were the subject of argument before me, and my decision and reasons are set out below. The interceptions relied upon by the Crown and filed as part of the Crown case are contained in a binder marked as Exhibit 30 at trial. There are 67 intercepts, each identified by sequentially numbered tabs. The contested edits are at Tabs 2, 8, 28, 39, 41, 52, 53, and 60, all of which are contained in a separate bound volume marked as Exhibit D on this motion.

Tab 2

[5] This interception starts with background chatter as “Kia”[^1] is making an outgoing call to Nicole Cuzzi and before Ms Cuzzi picks up. At lines 43 to 49 there is nothing intelligible apart from a statement attributed to Kia, “You’re not used to brown sugar.” That statement is irrelevant and potentially prejudicial as a sexual innuendo.

[6] The Crown argues that this phrase is relied upon for purposes of voice identification. The fragment is brief and of low probative value for voice identification. Virtually nothing is lost by deleting that portion.

[7] Lines 43 to 49 shall be excised.

Tab 8

[8] This is a telephone conversation between Mr. Arviko and Kia. Mr. Arviko tells Kia that he believes he is being followed by the police. Some of his references to the police are offensive, referring to them on occasion as “pussies.” He describes the surveillance efforts in some detail. At one point (lines 232-240), Ms Kia interjects that a similar thing happened to “her man” and that she had seen this described in the disclosure after he was arrested. All parties agree that the prejudicial impact of this portion exceeds its probative value and that it should be excised.

[9] Kia appears to be interested in what Mr. Arviko tells her is going on, making sympathetic comments throughout. At line 131 she asks if Mr. Arviko has “heard from that chick, Mel, lately.” Mr. Arviko replies that he has not and says that he does not know who snitched on him and why he is being tailed in this manner. Mr. Arviko returns to that topic at line 337 and says he thinks he “fucked up” when he sent texts to Mel, a suggestion with which Kia then agrees.

[10] At some points, Kia offers advice to Mr. Arviko: e.g. line 215, telling him “don’t do nothing go on vacation;” line 323, saying “you need to lay low bro’;” line 358-371, telling him to clean everything from his house; and lines 446-451, when she says “I’m an expert in this; just play video games and drink Heinekens.”

[11] At the end of the telephone call, Mr. Arviko tells Kia that he will try to make contact with her every day.

[12] At one point in the discussion (lines 241-314), Mr. Arviko proceeds to describe evasive action he took by driving at a reckless speed and running through 10 stop signs, all of which both he and Kia find to be quite amusing.

[13] The defence submits that the entire intercepted call should be excised on the grounds that its prejudicial effect outweighs its probative value. I agree with the defence that the excerpt dealing with the evasive action and reckless driving is damaging and irrelevant. It has virtually no probative value. Lines 241-314 shall therefore be excised.

[14] However, I find considerable relevance to the balance of the intercept. The discussion between Kia and Mr. Arviko is relevant to the degree of closeness between them. Her advice to him about laying low and their discussion about the possible involvement of “Mel” support the Crown’s argument about the degree of collaboration between them. The excerpt is therefore probative on an issue central to the conspiracy charges. There is little prejudicial impact as a result of the disclosure that Mr. Arviko was under surveillance. There will be extensive evidence at trial confirming that there was such surveillance. There is some prejudice arising from the slang used in referring to police officers. However, this is minor in nature when compared to the probative value. Given the way the conversation is interspersed with these references, it would not be feasible, in my opinion, to excise a word or two here and there that might be offensive without destroying the sense of what is being said.

[15] Between lines 190 and 205, Kia suddenly goes off the topic of the surveillance and tells Mr. Arviko that she has finally made the link for the “thing” that he wanted. This exchange is highly relevant to the Crown’s case as the Crown’s theory is that this ties into an earlier call where Mr. Arviko is looking for drugs and is therefore important evidence for the drug conspiracy charge. This is clearly admissible.

[16] I find that this whole intercept is admissible with the exception of lines 231 to 314 (being 10 lines excised on consent and the discussion about evading surveillance in a dangerous manner).

Tab 28

[17] This is a call between Mr. Arviko and Jordan Brown which is alleged by the Crown to be a discussion about Mr. Brown buying a firearm from Mr. Arviko. The portion tendered by the Crown starts at line 41. Between line 41 and line 71, Mr. Arviko talks about the item, calling it a “baby thing”, saying he is going to come and show it to Mr. Brown, and stating the price to be $25. They also both refer to the thing being “small, small, small” and Mr. Brown says he’ll take it for sure.

[18] This is highly relevant to the Crown’s case and forms part of the subject matter of the firearms trafficking charge. It is clearly admissible, which was eventually conceded by Ms Freeman for the defence.

[19] However, the defence objects to the balance of the call being before the jury because it involves Mr. Brown saying what he plans to do with the “thing,” with the clear implication that Mr. Brown intends to harm others with the gun. Ms Freeman argues that this casts Mr. Arviko in a bad light because he agrees to supply the gun knowing this is the intention, thereby possibly implicating him in assisting someone else to commit a serious crime.

[20] The Crown submits that the discussion by Mr. Brown about what he wants the “thing” for underscores the nature of the thing being discussed, supporting the Crown’s position that this is a discussion about a firearm, not a drug deal.

[21] I agree with the Crown’s position that the use to which the “thing” is going to be put is relevant to establishing the identity of the “thing.” This makes it highly probative. In my view the prejudicial effect is there, but it is not substantial. Mr. Arviko is already cast in a poor light when he is shown to be trafficking in a firearm. It is not a huge leap for someone to infer that when people are illegally selling a firearm to someone else in a surreptitious manner, that firearm is likely to be used for a harmful purpose. Therefore, the additional prejudicial effect is not as much as might otherwise be the case.

[22] That said, the Crown’s purpose can be accomplished by putting in the excerpt up to line 112. That is sufficient to show that Mr. Brown believes people are speaking against him and that is why he wants the thing. After line 112, the conversation takes a decidedly more violent turn, with Mr. Brown making threats against people and suggesting that the people he is talking about have gang affiliations. Mr. Arviko is trying to calm him down at some points, but is still talking about bringing him the “thing.” I find that lines 113 to 185 should be excised because they are overly prejudicial as compared to their probative value (given that this is merely an escalation of the earlier discussion about Mr. Brown’s motive and in that sense somewhat repetitive).

[23] From lines 186 to 212, Mr. Brown starts talking about Mr. Arviko’s brother, says how he cares about him as if he was like his own brother, and suggests that there is some talk about whose side this brother is on. Although similar in nature to the talk suggestive of gang affiliations immediately preceding it, this excerpt has greater probative value because it provides context for later calls in which Mr. Arviko’s brother is discussed at the same time as Mr. Arviko being interested in going halves on the “thing.” (see discussion below at Tabs 39, 41, and 52)

[24] To give sense to the conversation and to close off the fact that Mr. Arviko is still planning to hook up with Mr. Brown and show him the “thing,” the balance of the call, from line 213 to the end is admissible, with the exception of the reference in line 234 in which Mr. Brown says he is rolling up two blunts for them, which is completely irrelevant and prejudicial.

[25] Thus, the portion to be excised runs from line 113 to 185, and the reference to blunts in line 234.

Tabs 39 and 41

[26] On January 24, 2011 at 4:03 p.m. Mr. Arviko has a telephone discussion with a person identified as Freshy, which appears to be drug related (Tab 39). The defence seeks to excise the portion between lines 124 and 242, which is a discussion about conflicts between various of their associates, suspected snitching and the fact that people are saying that Mr. Arviko’s brother has something to do with it.

[27] At 4:37 p.m., almost immediately after the conversation at Tab 39, Mr. Arviko speaks again to Jordan Brown (Tab 41). Mr. Arviko is in a car and talks again about wanting to show the “thing” to Mr. Brown. He then suggests that the two of them can “go halves on it.” This discussion is followed immediately by Mr. Arviko talking about his concern that people are trying to set up or harm his brother (at lines 73-110). They then revert at line 111 to further discussion about what is alleged by the Crown to be the gun and ammunition for the gun.

[28] The Crown argues that the discussion about Mr. Arviko’s brother in this context shows the motive for Mr. Arviko now suggesting that they go halves on the “thing” and provides a further illustration that it is a gun that is being discussed. The defence argues that it is evidence of other bad conduct, unfairly prejudicial, and should be excluded.

[29] I agree with the Crown that there is considerable probative value to the discussion about Mr. Arviko’s brother within the overall discussion of the firearm and potentially sharing the firearm. This is directly related to the charge itself. Although there is some potential for prejudice, in my view this can be alleviated by limiting instructions to the jury. The risk of prejudice is outweighed by the probative value.

[30] Both the Crown and the defence take the same respective positions with respect to the discussion at lines 263-310 and 386-459 at Tab 41. The discussion at these points is a continuation of the earlier one about the talk among their associates, but is more angry in tone and more overtly threatening. These excerpts are unnecessary to establish the point about the nature of the “thing” and the motive for acquiring it, are less directly connected to that motive, and are more violent in nature. As such, I find the risk of prejudicial impact is greater and outweighs the probative value. These sections should be excised.

[31] Returning to Tab 39, similar issues arise. Between lines 124 and 242 there is some discussion about Mr. Arviko’s brother, which is relevant as I have noted above. However, there is also other conversation that is less directly relevant and which is suggestive of possible gang involvement and therefore carries a greater risk of prejudice. I would therefore admit the section where Mr. Arviko’s brother is discussed (lines 153-189), but otherwise excise this excerpt.

[32] Thus, at Tab 39, lines 124 to 152 and lines 190 to 242 are excised. At Tab 41, lines 263 to 310 and 386 to 459 are excised.

Tab 52

[33] Tab 52 is another telephone conversation between Mr. Arviko and Mr. Brown and takes place just after noon on January 25. Between lines 210 and 337, these two men discuss again the situation about others disrespecting them, about Mr. Arviko’s brother, and about wanting to sort them out. There are more blatant references to violence against these apparent enemies, culminating with Mr. Arviko saying, “We’re gonna end the talking and set the order shortly, my word Jay, my word.” The defence argues that this entire section (with the exception of a couple of lines here and there, which are directly related to the alleged gun deal) is highly prejudicial because of the implication of gang activity and threats of violence. I agree that this discussion is more inflammatory than previous discussions on essentially the same topic. The Crown argues that it should nevertheless be admitted because of the close connection between the discussion of the gun and the discussion of how it would be used. Again, in my view, a compromise is the best route. Mr. Arviko and Mr. Brown have been discussing the gun and Mr. Brown says he already has the “food” (ammunition). Mr. Arviko then says (at lines 202-204) that he will call and secure the deal. This is immediately followed by Mr. Brown stating (at lines 211-213), “Hey yow, bro’ my main concern is bro’ this guy is ‘showing disrespect’ and fuck.” To this Mr. Arviko responds, “No, we’re gonna sort this guy out that’s what I wanna show … I wanna show you still ‘cause he’s bawling out my bro’s name you know.”

[34] I agree with the Crown’s submission that this exchange, particularly given when it occurs, is directly relevant to the firearms trafficking charge in the same way that similar prior discussions are. The purpose for which the purchase is being made provides corroboration of the identity of the “thing” being purchased.

[35] However, the discussion which follows goes well beyond this and well beyond what is necessary for the Crown to demonstrate that it is a gun being discussed. I agree with the defence that there is a serious risk that the degree of violence being discussed and the links to gang involvement could be misused by the trier of fact as evidence of bad character or propensity. As such, the risk of prejudice outweighs the probative value.

[36] The defence concedes that within this suggested excision, lines 272-273 and 290-294 are relevant and admissible. I would also admit into evidence lines 210-217, for the reasons I have just stated. Accordingly, the following shall be excised from Tab 52: lines 218 to the first word in line 272; lines 274 to 289; and lines 295 to 336.

Tab 53

[37] The discussion at Tab 53 is between Mr. Arviko and a man alleged by the Crown to be Mr. Cumor. This is January 25, about eight hours after Mr. Arviko’s conversation with Mr. Brown at Tab 52, in which a deal is made for the thing alleged by the Crown to be a gun. The Crown’s theory is that the gun is being kept at the apartment in which Mr. Cumor and Ms Omar reside. In this discussion, Mr. Arviko talks about the deal and about the “food” (ammunition). The man asks Mr. Arviko if he has shown the customer a picture of the thing and Mr. Arviko confirms that he has and that the guy wants it still, but wants Mr. Arviko to bring it to him. All of this is conceded to be admissible.

[38] The defence seeks the excision of lines 175-204. In that portion, Mr. Arviko advises the other man, “my buddy I was with yesterday he got arrested after we left.” He also stated, “he almost got arrested with the thing you gave me there too,” and then goes on to say that he (Mr. Arviko) took the item from his buddy before the police arrested him. On its face, that may appear to be irrelevant and prejudicial. However, it is crucial to the Crown’s case against Mr. Cumor to show the link between Mr. Cumor and the apartment with Ms Rukiyo. From other intercepts, the Crown expects to establish that on the previous day Mr. Arviko had been to the apartment, had been met there by Kia, and had picked up some cocaine. The conversation at Tab 53, if it can be shown to be Mr. Cumor, provides vital information linking Mr. Cumor to that apartment and to knowledge of the drug deal, thus potentially pulling him into the drug conspiracy and firearms conspiracy. There are very few conversations with the man alleged to be Mr. Cumor. This excerpt is therefore relevant, probative, and very important to the Crown’s case. There is some risk of prejudice arising from Mr. Arviko being associated with a person who was arrested, but it is minimal and easily alleviated by instructions to the jury. Therefore, I find that the probative value of this exchange exceeds any prejudicial impact. That said, no more of it should be admitted than is necessary to establish this connection. I would therefore excise lines 200-204 and lines 212-222 as having no probative value and some potential for prejudice.

Tab 60

[39] Tab 60 is a discussion between Mr. Arviko and Kia at 11:40 p.m. on January 31. The Crown relies on this exchange to show the close connection between these two alleged co-conspirators. Mr. Arviko asks if he can come over and talk to her about what is going on. Kia replies that she is stepping out for 20 minutes but then coming back and that he can come by. Mr. Arviko then tells her that he is being followed by three or four brand new cars (police surveillance) to which Kia replies “All right, so don’t come here then nigger” and laughs. However, Mr. Arviko continues that he is worried that he won’t be talking to anyone after that night. Kia then tells him she is going to go out and make a quick “chip” (drug sale) and that he should meet her back at her place.

[40] The defence argues that the reference to being concerned about surveillance and the apparent belief that an arrest is imminent is prejudicial and should be struck. The defence further argues that the initial comment by Kia that Mr. Arviko should stay away from her place if he is being followed by the police is cancelled out by her later invitation that he should come by.

[41] There is limited prejudice arising from the fact of the surveillance, or Mr. Arviko’s knowledge of the surveillance. The jury will be aware that Mr. Arviko and others were being followed by the police. I agree with the Crown that it is particularly telling that Kia would first tell Mr. Arviko to stay away, but then agree that he could come. This is potential evidence of the close working relationship between them. I therefore find that the probative value outweighs the limited risk of prejudice. I would not excise anything from this Tab.

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 #3
(Wiretap Edits)

Molloy J.

Released: November 28, 2014

[^1]: The person identified in the intercepts as “Kia” is alleged by the Crown to be Rukiyo Omar, but her identity is contested by the defence.