ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. Alexis and Funes, 2015 ONSC 1590
COURT FILE NO.: CRIM J (P) 479/13
DATE: 2015 03 13
B E T W E E N:
HER MAJESTY THE QUEEN
R. Alexander Cornelius for the Crown
Respondent
- and -
MARCUS ALEXIS AND
BRIAN FUNES
Mary Cremer for Brian Funes
Adele Monaco for Marcus Alexis
Applicants
HEARD: January 6, 7, 8, 9, 2015
RULING Re: Editing of Intercepted Communications
Information contained herein is prohibited from publication by order of The Honourable Mr. Justice Joseph Michael Fragomeni
Fragomeni J.
[1] The Applicant, Marcus Alexis, seeks an order editing a portion of an intercepted communication which takes place on January 16, 2012 between Brian Funes, Nirmalan Satkunananthan (Nirm) and Joe Magdangal.
[2] The relevant portion of the intercept is as follows:
SATKUNANANTHAN: So then I tell them over and over like yo I do not know these people and then they left the room again now they leave me in there for like twenty (20) minutes come back and they start showing me these pictures he leaves the pictures on the table and then a next
FUNES: Pictures of who
SATKUNANANTHAN: Like some random black guys I don’t even know these guys
FUNES: Mm hmm
SATKUNANANTHAN: And then ah he dips he leaves the room ‘cause a next officer came in wanted to talk to him so I took my phone and I was looking for my ‘cause my Dad gave me my lawyers number right
FUNES: Mm hmm
SATKUNANANTHAN: He said if the cops like you know if anything happens call call the lawyer so I call the lawyer I’m I’m looking for the lawyer’s number and when he gives out I took a quick picture I took a quick snap shot of the fuckin’ pictures on the table.
FUNES: Mm hmm they were probably watching you in the camera
SATKUNANANTHAN: Right no but like I was like looking through
FUNES: That’s me yo
SATKUNANANTHAN: No
FUNES: No that’s not me right
SATKUNANANTHAN: No
MAGDANGAL: (laughs) this guy’s like that’s me
FUNES: (stutters) I know that’s my nigga
SATKUNANANTHAN: So these these guys he’s like
MAGDANGAL You know them right Brian
FUNES: Yeah
SATKUNANANTHAN: He’s like yo
(voices overlap)
MAGDANGAL: Is that the guy that went
SATKUNANANTHAN: He’s like do you know these people I’m like no bro’
MAGDANGAL: Is that the guy
SATKUNANANTHAN: I don’t
MAGDANGAL: That you guys sent
FUNES: Yeah
SATKUNANANTHAN: I don’t know and then
MAGDANGAL: He’s the one that pulled the trigger that dark skin nigger
(voices overlap)
SATKUNANANTHAN: Then he comes back to the room
FUNES: No the next guy
SATKUNANANTHAN: When he comes in the room he’s like I need you to turn your phone off I was like listen I’m looking for my lawyer’s number I don’t wanna be here anymore you know I’ve answered all your questions like, I wanna I wanna leave and he’s like okay you don’t need to call your lawyer just take a look at the rest of the pictures then he showed me four (4) pictures and said
FUNES: Was there any girls pictures in it
SATKUNANANTHAN: No just four (4) black guys
FUNES: Mm hmm
SATKUNANANTHAN Like one (1) light skinned black and
(voices overlap)
FUNES: Those my boys
SATKUNAANTHAN: Four (4) dark guys three (3) dark guys
FUNES: Those are all my boys
SATKUNANANTHAN: And then
(voices overlap)
FUNES: I know exactly who these guys are
Position of the Applicant
[3] The Applicant seeks to edit out the following lines:
FUNES: (stutters) I know that’s my nigga
SATKUNANANTHAN: So these these guys he’s like
MAGDANGAL You know them right Brian
FUNES: Yeah
SATKUNANANTHAN: He’s like yo
(voices overlap)
MAGDANGAL: Is that the guy that went
SATKUNANANTHAN: He’s like do you know these people I’m like no bro’
MAGDANGAL: Is that the guy
SATKUNANANTHAN: I don’t
MAGDANGAL: That you guys sent
FUNES: Yeah
SATKUNANANTHAN: I don’t know and then
MAGDANGAL: He’s the one that pulled the trigger that dark skin nigger
(voices overlap)
SATKUNANANTHAN: Then he comes back to the room
FUNES: No the next guy
SATKUNANANTHAN: When he comes in the room he’s like I need you to turn your phone off I was like listen I’m looking for my lawyer’s number I don’t wanna be here anymore you know I’ve answered all your questions like, I wanna I wanna leave and he’s like okay you don’t need to call your lawyer just take a look at the rest of the pictures then he showed me four (4) pictures and said
FUNES: Was there any girls pictures in it
SATKUNANANTHAN: No just four (4) black guys
FUNES: Mm hmm
SATKUNANANTHAN Like one (1) light skinned black and
(voices overlap)
FUNES: Those my boys
SATKUNAANTHAN: Four (4) dark guys three (3) dark guys
FUNES: Those are all my boys
SATKUNANANTHAN: And then
(voices overlap)
FUNES: I know exactly who these guys are
[4] The Applicant submits the following:
- The applicant was not a party to this conversation and as such the utterances made by Funes are not admissible against the Applicant.
- The co-conspirator exception to the hearsay rule does not apply.
- An out-of-court statement is only admissible against the accused who made the statement.
- The admission of the intercept is highly prejudicial and will affect trial fairness.
- The impugned portion of the intercept depends highly on the context with respect to whose photo(s) were being shown to Mr. Funes. Detective Hobson and Doran set out in their notes that the photos are of John Morrone and the Applicant, photos that were uploaded with Nirm’s phone with the intention of showing them to Mr. Funes.
- The probative value of this portion of the intercept does not outweigh its prejudicial effect and this prejudice cannot be cured by a limiting instruction to the jury.
- The proposed editing would not interfere with the flow and context of the intercept as a whole.
Position of the Crown
[5] The Crown rightfully acknowledges that the intercepted communication is only admissible against Funes. The Crown does not and cannot seek to use this evidence as evidence against the Applicant.
[6] The theory of the Crown as against Funes is as follows:
It is the Crown’s theory that Brian Funes is guilty of manslaughter by undertaking an unlawful act that resulted in Kearn Nedd’s death. The unlawful act in question entailed assisting in the planning of a gunpoint robbery and, directly or indirectly, directing conduct designed to bring about the planned gunpoint robbery. In the impugned passage, Mr. Funes identified a photograph that was captured on the phone of Mr. Satkunananthan. He confirmed that he recognized the individuals depicted in the photograph as the guys that he sent. He further describes the individuals as his “boys”.
[7] The Crown argues that this intercept is extremely probative evidence of the guilt of Funes and the jury could find it is a direct admission of guilt.
[8] The impugned passage could also contribute significant corroboration of the evidence of John Morrone who is an unindicted co-conspirator and whose evidence will be the subject of a Vetrovec warning.
[9] The Crown submits further that the existence of the possibility of prejudice does not automatically lead to the exclusion of highly probative evidence. Any prejudice in that case can be cured by an appropriate limiting instruction to the jury.
[10] The limiting instruction would make it clear to the jury what use can be made of the intercept. The jury would be told to treat each accused separately and base their decision only on the evidence applicable to each accused.
[11] There is a presumption that jurors will honour their oath and follow the instructions given by the judge.
[12] Finally, the Crown submits that the timing of this application has affected the trial fairness for the Crown. The Crown is also entitled to a fair trial. At paragraphs 24 and 25 of his Factum the Crown summarizes this prejudice as follows:
It is submitted that in addition to the potential exclusion of highly probative and otherwise admissible evidence, the timing of the application has the effect of limiting the exercise of the Crown’s inherent discretion. Had the Crown received an adverse ruling prior to the commencement of its case, which is now before a jury, the Crown would have been entitled to mitigate the adverse effect on the case against Mr. Funes. The formation of adverse inferences and jury speculation was it to exercise such discretion at a mid-trial stage. The Crown would be prejudiced, were the application to be allowed at this late stage of the proceedings, for want of an ability to exercise its discretion, in the best interest of the prosecution.
It is submitted that the Crown is entitled to a fair trial. By contrast, it is submitted that the Applicant will not suffer from a want of a fair trial should the impugned passage be presented in the case against Mr. Funes. As McLachlin J. noted in a concurrent judgement to the majority in Regina v. O’Connor:
193 The task before us on this appeal is to devise a test for the production of records held by third parties which preserves the right of an accused to a fair trial while respecting individual and public interest in privacy and the efficient administration of justice. The key to achieving this lies in recognition that the Canadian Charter of Rights and Freedoms guarantees not the fairest of all possible trials, but rather a trial which is fundamentally fair: R. v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562. What constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits of the system of justice and the lawful interests of others involved in the process, like complainants and the agencies which assist them in dealing with the trauma they may have suffered. Perfection in justice is as chimeric as perfection in any other social agency. What the law demands is not perfect justice, but fundamentally fair justice.
Regina v. O’Connor 1995 51 (SCC), [1995] 4 S.C.R. 411
ANALYSIS
[13] In R. v. Thind, 2011 ONSC 4577 D. F. Baltman, J reviews the legal framework on this issue at paras. 6 to 8 as follows:
It is well established in law that evidence contained in Sidhu’s statement is admissible only against him. The jury will be instructed that they must not consider anything Sidhu says when reaching their verdict on Saggi or Thind, even if Sidhu describes what his co-accused said or did during the events in question.
However, it is also recognized that despite such an instruction, there may be cases where the impugned comments are so prejudicial to a co-accused that it would be unfair not to edit them: R. v. Olah, 1997 3023 (ON CA), [1997] O.J. No. 1579 (C.A.), paras. 40-50. Since Olah several cases have summarized or commented upon the applicable law: R. v. Grewall, 2000 BCSC 1451, [2000] B.C.J. No. 2386 (S.C.), paras. 36-40, R. v. Jacobson, [2004] O.J. No. 932 (S.C.) at para. 4, and R. v. Papadopoulos, [2006] O.J. No. 5409 (S.C.).
From my review of those cases the governing principles appear to be the following:
(1) The trial judge has the discretion to edit statements which include irrelevant or prejudicial evidence against a co-accused;
(2) Even where evidence has probative value it may be edited out if its prejudicial effect is greater;
(3) However, such edits must not change the meaning of the statement in a material manner, either by removing something of legitimate value to the Crown in its case against the declarant or by removing something of exculpatory value to the declarant; and
(4) In deciding whether to edit a statement to protect a co-accused, the Trial Judge must bear in mind that the jury will be instructed on the proper use of the statement and that we expect jurors to follow such instructions.
[14] At paras. 9 and 10 she states:
There is no question that the impugned statements are potentially prejudicial against Saggi and Thind. The issue is whether any possible prejudice arising from those comments outweighs their probative value against Sidhu, beyond what can be remedied by the usual limiting instruction.
Based on the evidence to date and the submissions of counsel, in my view there are several good reasons to decline the requested edits.
[15] Finally, at para 19:
- This is similar to the concern voiced by the Ontario Court of Appeal in R. v. McLeod, 1983 3605 (ON CA), [1983] O.J. No. 81. The three accused were charged with attempted murder, attempted robbery and use of a firearm. Each of them gave a statement implicating their co-accused. Following conviction, one of the grounds of appeal was the Trial Judge’s refusal to edit the statements by deleting from each statement the names of the other accused. The Court of Appeal’s response at para. 10 of the judgment is, in my view, apposite to this case:
Editing of statements is often resorted to with advantage to blot out totally immaterial and prejudicial portions of an accused’s statement. I am satisfied however, after perusing the statements here, that no benefit could result from an attempt to delete from each statement the names of the other accused. In my view, such a course which would obviously mar the flow of language, would only arouse the suspicion and speculation of the jury. To make sense of them to render justice, the statements, if admitted at all, had to be admitted whole. [Emphasis added]
[16] Baltman, J’s decision was appealed to the Court of Appeal (2013) ONCA 719) and at paras. 21-24 E.E. Gillese, J.A. found:
The trial judge was aware of the potential prejudicial effect of Mr. Sidhu’s inculpatory references to Mr. Saggi in the Statement. She concluded that any possible prejudice arising from those references could be remedied by limiting instructions. She identified real concerns that would arise if the Statement were edited as requested. She found that the edits could prejudice the Crown’s ability to counter any potential defences raised by Mr. Sidhu; that the proposed deletions would be confusing to the jury; that the authorities relied on in the defence application were distinguishable; and that the timing of the application in the context of the trial timeline raised concerns about the feasibility of any proposed edits.
Mr. Saggi does not allege any error in principle in the trial judge’s analysis. His disagreement is with her conclusion that the Statement ought not to be edited. He rightly concedes that the trial judge properly instructed the jury multiple times that the Statement could only be used as evidence for or against Mr. Sidhu, and that the administration of criminal justice proceeds on the assumption that juries will follow that instruction.
An application to have a statement edited involves an exercise of judicial discretion. it is fact-specific and requires a weighing and balancing of probative value and prejudicial effects. Deference is owed on appellate review.
I see no basis on which to interfere with the trial judge’s exercise of discretion in this matter. Accordingly, I would reject this ground of appeal.
[17] Justice van Rensburg also dealt with an editing issue in R. v. Gayle 2013 ONSC 5283. At paras. 6 to 11 she sets out the following:
The statements of course are not evidence against Mr. Gayle. The law is clear that the statement of an accused is not admissible against a co-accused: R. v. C.(B), 1993 8564 (ON CA), [1993] O.J. No. 654 (C.A.), at para. 15, and that the jury would need to be instructed in very clear terms as to the use that could be made of Mrs. Gayle’s statement. Counsel for Mr. Gayle is very concerned that the jury would use the statements as evidence against Mr. Gayle, even if instructed not to do so.
The statements were not played in court for the purpose of the application, although extensive reference was made to the transcripts.
Briefly, Mrs. Gayle gave an account that was not inculpatory of herself or her own involvement in Tiffany’s death. In the June 16 statement however she said that Fedrick had killed Tiffany, that it was an accident and that he didn’t mean to do it. Initially Mrs. Gayle had been in the garage with Tiffany disciplining her by talking to her. Fedrick came in and struck Tiffany with a baseball bat. Mrs. Gayle left to go upstairs to bed. She came to the basement when Fedrick was there with Tiffany. She saw him strike Tiffany again three times before she left the basement to go upstairs.
Mrs. Gayle denied that she had struck Tiffany or that she had participated in a clean-up. She admitted she had hit Tiffany in the past, but denied she did so that night.
Crown counsel asserts that the statements provide highly probative evidence against Elizabeth Gayle, specifically:
- her admission to being present during a deadly assault on her step-daughter;
- her admission that she did nothing to prevent her step-daughter’s death; her denials of using a weapon which can be contradicted by forensic evidence; and
- her denials of being involved in a clean-up in the face of forensic evidence to the contrary.
- The Crown argues that to exclude the evidence would deprive the prosecution of this important evidence against Elizabeth Gayle.
[18] At paras 18 and 19 she endorses the following conclusion:
I have concluded that the statement cannot be excluded from evidence in this trial. It is relevant to the Crown’s case against Mrs. Gayle; it is an element of the Crown’s proof, and it is not an answer to say that there may be other evidence the Crown may rely upon to prove the charge against Mrs. Gayle. There is no argument for exclusion by Mrs. Gayle, and no assertion that its prejudicial effect outweighs its probative value for the issues in respect of which it would be admissible at trial. As Mr. MacGregor pointed out, the statement contains exculpatory aspects, and is evidence both against and for Mrs. Gayle: R. v. Simmons (1955), 1955 164 (ON CA), 110 C.C.C. 309 (Ont. C.A.).
There is no question that Elizabeth Gayle’s statement in this trial may be prejudicial to Mr. Gayle, as it may be misused by the jury as evidence against him. The question is whether that prejudice can be minimized and managed through appropriate instructions to the jury, and other measures at trial, or whether severance is necessary.
[19] In R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, the Court states the following at paras 38 and 39:
One can now add on the accused's side of the balance the discretion in the trial judge to exclude evidence of prior convictions in those unusual circumstances where a mechanical application of s. 12 would undermine the right to a fair trial.
In my view, it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system. The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense. The jury is, of course, bound to follow the law as it is explained by the trial judge. Jury directions are often long and difficult, but the experience of trial judges is that juries do perform their duty according to the law. We should regard with grave suspicion arguments which assert that depriving the jury of all relevant information is preferable to giving them everything, with a careful explanation as to any limitations on the use to which they may put that information. So long as the jury is given a clear instruction as to how it may and how it may not use evidence of prior convictions put to an accused on cross‑examination, 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 the issue in the dark.
[20] I agree with the position of the Crown on this issue.
[21] The intercept will be played to the jury in its entirety without editing. I am satisfied that the jury ought to be permitted to hear this evidence as it relates to Funes. The evidence is highly probative evidence as against Funes. It is not evidence that only has some probative value to the Crown’s case against Funes. It is evidence that has a very high degree of probative value. When that is balanced against any prejudice to the Applicant I am satisfied that the high probative value outweighs any prejudice that exists.
[22] Further, that prejudice can be dealt with with clear and emphatic limiting instructions about the use to be made of the intercept. These clear instructions will reduce and minimize the prejudice from misuse by the jury.
[23] In all of these circumstances, therefore, the application is dismissed.
Fragomeni, J.
Released: March 13, 2015
CITATION: R. v. Alexis and Funes, 2015 ONSC 1590
COURT FILE NO.: CRIM J (P) 479/13
DATE: 2015 03 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
MARCUS ALEXIS and BRIAN FUNES
Applicants
RULING – Re: Editing of Intercepted Communications
Fragomeni, J.
Released: March 13, 2015