ONTARIO SUPERIOR COURT OF JUSTICE

CITATION: Her Majesty the Queen v. Sethi, 2015 ONSC 2005

NEWMARKET COURT FILE NO.: 14-03515

DATE: 20150327

BETWEEN:

Her Majesty the Queen

– and –

Manjit Sethi, Quoc Tang and Waseem Iqbal

COUNSEL:

Geoffrey Roy and Joseph Selvaratnam, for the Crown

Ravin Pillay, for the Accused Manjit Sethi
Stephanie Heyens, for the Accused Quoc Tang
Deepak Paradkar, for the Accused Waseem Iqbal

HEARD: March 23 and 24, 2015

RULING ON ADMISSIBILITY OF PROBES

Bird J.:

Introduction

[1] The accused, Manjit Sethi and Waseem Iqbal are jointly charged with numerous offences arising out of an investigation in 2010 in relation to controlled substances. Mr. Tang is charged with only one offence. It is alleged that he conspired with his two co-accused and with three other parties (Chun Chan, Marvin Lopez and Raghav Suri), to traffic in ketamine. Mr. Sethi and Mr. Iqbal face three additional counts of conspiracy to traffic in other illegal substances, also with Mr. Chan, Mr. Lopez and Mr. Suri. Notably, the four conspiracy counts in the indictment do not include any other alleged co-conspirators such as Bryan Kemp or parties unknown. The indictment is specific with respect to the members of the alleged conspiracy and the relevant time frame.

[2] In May of 2010, a Part VI authorization was signed by Pardu J. In addition to intercepting the phone calls of the named parties, the police were permitted to install a room probe in Mr. Chan’s Leslie Street condominium. The Crown seeks to introduce into evidence ten recorded conversations obtained via the room probe: seven on June 14, one on June 19, one on June 20, and one on July 8. Although there are seven recordings from June 14, they capture one continuous period of time on that date. The first recording begins at 14:27:24 and ends exactly fifteen minutes later. The second recording begins immediately thereafter (at 14:42:24) and runs for exactly fifteen minutes. There may be a technical reason that limits each recording to fifteen minutes, but it is important to remember that the division of the recordings is arbitrary and doesn’t represent distinct events.

[3] The defence takes issue with the admissibility of this evidence on the basis that the quality of the audio recordings is alleged to be so poor as to render them incomprehensible and therefore unreliable. A voir dire was held to determine whether the recordings from Mr. Chan’s condominium are sufficiently reliable to pass the threshold test for admissibility.

[4] The Crown originally began to introduce the evidence of the probes through the lead investigator, Detective Ibbott, on March 3, 2015. The first probe (Session 94 from June 14) was played using the Crown’s computer in conjunction with the audio equipment that was in place in the courtroom. Mr. Tang is being assisted during the trial by a Cantonese interpreter. The interpreter was unable to meaningfully translate the contents of the first room probe due to the poor quality of the audio. During a break, a headphone system was brought into the courtroom in an attempt to improve the parties’ ability to hear the recordings. This was not successful, and everyone agreed that the quality of the audio at that point was so poor that it was virtually impossible to hear anything that was being said. It was therefore decided that the Crown would try to obtain better equipment to play the room probes at a later date.

[5] On March 23 and 24, 2015, the ten room probes were played in court with the assistance of additional speakers used in conjunction with the headphone system. There is no evidence or suggestion that any better equipment exists which could improve the quality of the audio recordings any further. The Crown has provided transcripts of the ten probes, but it is clear that they have been provided as an aid. The evidence is the audio recordings from the room probes. The Crown has provided the transcripts to assist in understanding the content of the conversations in Mr. Chan’s condominium. The defence does not accept that the transcripts accurately reflect what was said and by whom. It is their position that the quality of the recordings is simply too poor to permit reliable and accurate transcripts to be produced, despite what were no doubt the best efforts of the transcribers.

Legal Analysis

[6] It is the position of all three accused that the recorded conversations are largely inaudible and that, as a result, it is impossible to determine the meaning of any words that can be heard because they cannot be assessed in the context of the entire conversation. The defence submits that the relevance of the evidence cannot be established and that this renders the recordings inadmissible. In contrast, the Crown takes the position that on the issue of threshold admissibility, the recordings, while not perfect, are sufficiently understandable to warrant consideration by me as the trier of fact. The Crown argues that, provided the interpretation it urges is reasonably available, the evidence is admissible and the issue of the quality of the recordings goes to the weight to be afforded to them.

[7] The law that governs the admissibility of this evidence is fairly straightforward. In order for any piece of evidence to be admissible, it must be relevant to an issue in the trial. The burden of establishing relevancy is on the party seeking to tender the evidence, in this case, the Crown. Normally in the case of intercepted communications, the potential relevance of the evidence is obvious. For instance, in this case the Crown is tendering many intercepted telephone calls and the defence takes no issue with the potential relevance of this evidence. However, in relation to the room probes the defence says that due to the poor quality of the recordings, no determination can be made on the issue of relevance.

[8] The test to be applied is set out by Hill J. in the case of R v. C.P.S. [1998] O.J. No. 2744 (Ont. S.C.J.). The primary issue in that case was the availability of transcripts of a lengthy police statement, but Hill J. considered the relationship between the reliability of recorded evidence and its admissibility. He found that reliability concerns can be relevant to admissibility because there can come a point where evidence is so unreliable that its probative value does not outweigh its prejudicial effect. Hill J. stated that in order for a tape recording to be admissible, it must be of sufficient quality to permit the trier of fact to form a fair and reliable assessment of the substance of the recorded conversation so that the trier of fact will not be misled or confused (C.P.S. at paragraphs 31 and 32).

[9] In his submissions, Mr. Roy, on behalf of the Crown, stressed that there is far less danger in a judge alone trial of the trier of fact being misled or confused. However, that position considers only the second part of Justice Hill’s statement. Hill J. began by saying that the trier of fact must be able to form a fair and reliable assessment of the substance of the conversation.

[10] The defence relies on the cases of R v. Ferris 1994 CanLII 31 (SCC), [1994] S.C.J. No. 97 (S.C.C.) affirming 1994 ABCA 20, [1994] A.J. No. 19 (Alta. C.A.) and R v. Hunter 2001 CanLII 5637 (ON CA), [2001] O.J. No. 2388 (Ont. C.A.) for the proposition that a lack of context can render utterances inadmissible. Those cases both involved brief utterances of the accused that were overheard by a third party who admitted not having heard what was said immediately before and after the words in issue. In those circumstances, there was a significant risk that the words would be taken out of context and inaccurately interpreted to the prejudice of the accused.

[11] The defence submits that while the facts in this case are different, the same risk exists because it is impossible to understand the context of the conversations in Mr. Chan’s condominium due to the poor quality of the recordings. They argue that, because large portions of the conversations are inaudible, the meaning of anything that can be heard cannot be accurately assessed and would require speculation to fill in the blanks.

[12] The Crown’s position is that there is sufficient context to render the utterances admissible. In addition, the Crown relies on extrinsic evidence as being available to assist in understanding the context of the conversations. The Crown submits that the conversations should not be assessed in a vacuum but rather must be considered in the context of all of the evidence, including surveillance evidence, video surveillance and evidence about the arrests of Mr. Chan and Mr. Suri on July 8, 2010.

[13] The assessment of the reliability of the recordings in this case is further complicated by virtue of the fact that none of the accused parties are alleged to have been present in Mr. Chan’s condominium for any of the intercepted conversations. The only way these recordings can be admissible is if they meet the criteria for the co-conspirator exception to the hearsay rule set out in R v. Carter 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938. A determination of admissibility pursuant to Carter will require a detailed analysis of each recording to decide whether the statements were made by an alleged co-conspirator in furtherance of the specific conspiracy alleged in the indictment. The substance of the recordings must therefore be sufficient to allow such an assessment to be made. With respect to the Carter test, the Crown will have to establish that the statements are those of one of the co-conspirators named in the indictment, specifically Mr. Chan, Mr. Suri or Mr. Lopez. As noted at the outset, Bryan Kemp and unknown persons are not alleged to be co-conspirators.

[14] A review of the cases makes it clear that this is a factual matter that must be decided on a case-by-case basis, and in fact, on a recording-by-recording basis. It falls to me to determine, based on my assessment of the quality of the audio recordings, whether they are sufficiently audible and comprehensible to allow me to form a fair and reliable assessment of their substance. In determining this issue, I listened to each recording many times. In court, I did so without relying on the transcripts so that I could focus exclusively on what I was able to hear. When I listened to the recordings outside of the courtroom, I made use of the transcripts as an aid to assist in my attempts to understand and follow the intercepted communications. In doing so, I cautioned myself not to substitute the opinion of the transcriber as to what was said for my own views. The transcripts are simply an aid, and it is the audio recordings themselves which are the evidence and which therefore must be assessed. After careful consideration, making my best efforts to hear and comprehend the substance of each recording and using all of the equipment available to me to enhance my ability to hear, I have come to the following conclusions:

Probe #1 (Session 94) June 14, 2010 from 14:27:24 to 14:42:24

[15] Based on the surveillance video images from the twelfth floor hallway of 9015 Leslie Street, I am satisfied, certainly on a threshold basis, that the parties to the conversation during this time frame are, as alleged by the Crown, Chun Chan and Marvin Lopez. The portion of the audio that has been transcribed and which the Crown says is sufficiently audible to be relied upon, begins two minutes and forty-four seconds into the recording and ends fifty-six seconds later. There appears to be no further conversation after that. However, there is conversation in the first two minutes and forty-four seconds that is audible to the extent that it is clear people are talking, but is so faint that it is impossible to make out even a single word of it. The transcript reflects this by referring to “unintelligible conversation” in the first two minutes and forty-four seconds. This is significant because it means that almost seventy-five percent of the three minute and forty second conversation is totally unavailable to the Court due to its inaudibility.

[16] With respect to the fifty-six seconds that are transcribed, it is of extremely poor quality. Without the use of the transcript, I would be unable to follow the conversation and would only be able to decipher the occasional word. The transcript appears to be fairly accurate. However, in the twenty-nine lines that are transcribed, the word “unintelligible” appears eleven times; meaning, there are eleven periods of time when the words spoken are too inaudible to be transcribed. When I listened to the recordings, I, like the transcriber, was totally unable to hear what was being said in those segments of the tape. It is impossible to know how many words are missed and what the significance of them is. What is clear, however, is that of the three minute and forty second conversation that occurs at the beginning of this intercept, less than twenty percent of it is available to the court due to the inaudibility of the recording. This, in my view, is not sufficient to permit me to make a fair and reliable assessment of the substance of this conversation, particularly in light of the fact that if it were to be admissible, I would need to be able to determine whether the words spoken satisfy the Carter test. Session 94 is therefore not admissible.

Probe #2 (Session 95) June 14, 2010 from 14:42:24 to 14:57:24

[17] The parties to this conversation are Mr. Chan and Mr. Suri, based on video surveillance evidence. The second probe is broken down into four distinct segments in the transcript. The first and third segments appear to be phone calls received by Mr. Suri while he is in the condominium. With respect to the first call, it is fairly brief and somewhat audible. Without the use of the transcript, I was only able to understand the occasional word or phrase, despite listening to it repeatedly. In the ten lines the call occupies in the transcript, the word “unintelligible” appears eight times, representing eight separate times at which words cannot be understood. The transcript appears to be fairly accurate, but I am not in a position to properly assess it because I am not able to independently follow the conversation. In such a situation, the transcript becomes much more than an aid and effectively becomes the evidence. This, in my view, elevates it to an impermissible use.

[18] It would appear that during this call Mr. Suri is giving someone directions to a location. There is no direct evidence as to the identity of the person he is speaking to. As a result, the probative value of this evidence is extremely limited. The Crown may argue that because Bryan Kemp and the unknown male in the yellow t-shirt came to the condominium shortly after this call, it is reasonable to infer that Mr. Suri was speaking to one of them. Even if this were the case, there is no question from the video surveillance that these two men arrived at the condominium. Therefore, the fact that they may have been given directions by Mr. Suri on how to get there adds nothing of value. Based on intercepted phone calls between a man alleged to be Bryan Kemp and Mr. Suri on the thirteenth and fourteenth of June, the Crown can establish that the two men agreed to meet to do something on an urgent basis. Therefore, even if Mr. Suri did speak to Bryan Kemp or the unknown male to give them directions to Mr. Chan’s condominium, it has very little relevance in the context of other admissible evidence. Its probative value is marginal, at best. In light of the poor quality of the audio, I am of the view that the probative value of this conversation is not sufficient to justify its admission.

[19] Similarly, with respect to the second call (which is the third segment of the transcript), it is impossible to understand without the use of the transcript. The quality of the audio of the second call is worse than the first. Despite listening to the call many times with the transcript, I was unable to determine at what time the call ended. I was also unable to determine whether it was always the same person speaking. There were periods of silence during the call, and at some points it sounded as though Mr. Suri may have been speaking to Mr. Chan or that Mr. Chan may have been speaking. Those possibilities exist but I was unable to make that determination because I could not hear the conversation well enough. There was also background noise during some portions of the call. It seems as though even after the call ended, there was ongoing conversation in the condominium that is impossible to decipher. However, given that I could not determine when the call ended, I don’t know whether Mr. Suri and Mr. Chan spoke after the call or whether it was all part of the same phone call. Based on the transcript, it would appear that this call also related to giving an unknown person some directions. It would likewise have limited probative value that does not outweigh its prejudicial effect.

[20] Approximately seven minutes and seventeen seconds into the recording, a conversation takes place between Mr. Chan and Mr. Suri. This conversation occupies nineteen lines of the transcript and the word “unintelligible” appears eleven times. This indicates that significant portions of this conversation are unavailable to be assessed because they are too inaudible to be understood. Once again, without the use of the transcript, I was only able to understand the occasional word or phrase. I was not able to follow the conversation in any meaningful way. Even with the use of the transcript, I am not able to understand the conversation sufficiently to assess its admissibility under the co-conspirator exception to the hearsay rule. I am not able to determine whether the words that I can hear were spoken in furtherance of the specific conspiracies alleged in the indictment, without having the complete context.

[21] The fourth segment of the transcript relates to a very brief conversation between Mr. Chan and Mr. Suri after the second phone call. The television in the condominium is turned on partway through this conversation and it becomes, by far the dominant noise. This brief conversation is virtually inaudible.

[22] It should also be noted that the four conspiracies alleged in the indictment refer to specific substances. Mr. Tang, for instance, is charged only with conspiring to traffic in ketamine. In his submissions, Mr. Roy said that it was the Crown’s position that the people in Mr. Chan’s condominium on the afternoon of June fourteenth were using a blender to mix “a substance of some sort” and repackaging it so that Mr. Lopez could take it to the condominium at 18 Valley Woods Road. In order for these intercepts to be admissible against Mr. Tang, I would need to be satisfied that the words were spoken in furtherance of a conspiracy to traffic in ketamine specifically, as opposed to some other substance. Given the level of detail that that kind of analysis requires, the context of the intercepted communications is critical. As a result of the poor quality of the audio recordings, that context is simply not available.

[23] I am not able to form any reliable assessment of the substance of any of the four segments that are contained in Probe #2, particularly as they may relate to the co-conspirator exception to the hearsay rule. As a result, none of the conversations captured in Session 95 are admissible.

Probes #3, 4, 5, 6 and 7 (Sessions 96, 97, 98, 99 and 100) June 14, 2010 from 14:57:24 to 16:12:24

[24] The five remaining segments of the June fourteenth probes can be dealt with together, as they all suffer from the same problem. The television in Mr. Chan’s condominium was on and dominates the audio recording. Virtually every word of the three o’clock news report is audible. In contrast, the conversation in the background is almost completely inaudible. In addition to the television, there is also noise from what sounds like a small appliance, possibly a blender, at regular intervals. This noise dominates all other sounds on the recording. The transcripts are replete with references to “unintelligible” conversation and I was not able to hear any conversation sufficiently to assess the accuracy of those portions that were transcribed. In my view, there is almost no value to these intercepts as a result of the exceptionally poor quality of the recordings. At best, the occasional word can be heard. It is impossible to hear complete sentences or to understand the context of anything that is said. These portions of the probes fall far short of meeting even the minimum standard of reliability necessary to satisfy the threshold test for admissibility.

[25] A further issue exists with respect to sessions 96, 97 and 98. In addition to Mr. Chan and Mr. Suri, Bryan Kemp and an unknown male wearing a yellow t-shirt (as seen on the twelfth floor surveillance video) are in the condominium and are participating to some extent in the conversation. Because they are not named in the indictment as co-conspirators, nothing said by Bryan Kemp or the unknown male is potentially admissible as an exception to the hearsay rule. At the highest, the statements of Mr. Chan and Mr. Suri may be admissible. It is therefore crucial to be able to determine who is speaking at all times during this forty-five minute time period.

[26] There were no witnesses called to identify who was speaking during these portions of the room probe, or in fact, in any of the room probes. The Crown relies on circumstantial evidence, primarily the surveillance videos, to establish the parties to the conversation. However, the video surveillance simply establishes who was present in the condominium at the material times. With respect to sessions 96, 97 and 98, the videos cannot assist with who was speaking at any particular time. It would be up to me, as the trier of fact, to attempt to make this determination. The quality of the audio recordings makes such a finding impossible.

[27] In fact, with respect to session 100, the transcript lists the parties to the conversation as Mr. Chan, Mr. Suri and an unknown male. The Crown concedes that it is impossible to determine from the intercept whether the third person is Bryan Kemp or the unknown male in the yellow t-shirt. The audio isn’t of a sufficient quality to permit this determination to be made.

[28] The fact that it is not even possible to determine who is speaking during these probes highlights the unreliability of this evidence. The conversations recorded in sessions 96, 97, 98, 99 and 100 are virtually inaudible and do not permit any type of reliable assessment of their substance. As a result, they are not admissible.

Probe #8 (Session 475) June 19, 2010 from 17:42:25 to 17:57:25

[29] Based on a still photo from 9015 Leslie Street, the Crown alleges that Mr. Chan and Mr. Lopez are in the condominium and are the two people engaged in the conversation captured in this room probe. At the beginning of the recording, Mr. Chan is on the telephone with two different people – first an unknown female and then a male referred to as Arthur. It is possible to hear Mr. Chan’s side of the phone conversations quite well. However, the phone calls relate to personal matters and are not possibly relevant to the trial. Furthermore, the utterances of Mr. Chan are not made in furtherance of the conspiracy and are therefore inadmissible hearsay.

[30] The only potentially admissible portions of the conversation involve Mr. Chan and Mr. Lopez. They speak for approximately two minutes and fifteen seconds but this only results in twenty-eight lines of transcript because there are large portions of what is said that is not transcribed due to its inaudibility. In the twenty-eight lines in the transcript that deal with this conversation, the transcriber notes that there are twenty-five unintelligible portions. This clearly reflects the fact that significant portions of the conversation are inaudible. At best, the transcript reflects a fraction of the conversation. At one point, according to the transcript, Mr. Suri is alleged to have said “hate muffin”. This utterance does not make any sense and suggests that the transcriber misheard what was actually said. Even after listening to this utterance repeatedly, I was not able to determine what was said. As with the previous sessions, the quality of the audio of this conversation is simply too poor to allow a fair and reliable assessment of its substance to be made. Session 475 is therefore inadmissible.

Probe #9 (Session 563) June 20, 2010 from 17:05:45 to 17:20:45

[31] Based on surveillance video from 9015 Leslie Street, the parties to the conversation recorded during this room probe were Mr. Chan and Mr. Lopez, both named co-conspirators. For approximately the first four minutes and eleven seconds of the recording, there is no background noise and the audio is quite clear. At four minutes and twelve seconds, the television was turned on which makes the conversation extremely difficult to hear from that point onwards. With the assistance of the transcript, which I find to be accurate, I was able to hear and understand the vast majority of the conversation up to the point the television was turned on. I find that this portion of the conversation is sufficiently audible to permit me, as the trier to fact, to make a fair and reliable assessment of its substance.

[32] I come to a different conclusion with respect to the conversation from four minutes and twelve seconds onwards due to the noise of the television which renders the words spoken by Mr. Chan and Mr. Lopez largely inaudible. Nothing beyond this point is sufficiently clear to pass the threshold admissibility test. It is therefore excluded.

[33] I recognize the potential danger of admitting only a portion of this conversation. However, Mr. Chan and Mr. Lopez have discreet discussions about different subjects and appear to move onto a different topic after the television is turned on. The only potentially relevant aspect of the admissible part of the conversation relates to someone referred to as “Mouse” measuring something. Mr. Chan and Mr. Lopez finish talking about Mouse and move on to speak about Mr. Chan’s goddaughter. Therefore, I am satisfied that the conversation about Mouse was complete and sufficient for me to assess its substance.

[34] My finding that this portion of session 563 passes the threshold reliability test should not be taken as a final determination on admissibility. As noted, the only route to admissibility for this evidence is through the co-conspirator exception to the hearsay rule. The Crown will have to satisfy all aspects of the Carter test in order for this recorded conversation to be admissible on the trial proper.

Probe #10 (Session 2256) July 8, 2010 from 20:18:59 to 20:33:59

[35] The parties to this conversation were Mr. Chan and Mr. Suri. The men were arrested together later in the evening in Mr. Chan’s vehicle. When officers searched the truck, they found a weapon, plastic zipties and duct tape – all items consistent with a plan to forcibly confine or otherwise harm someone. This extrinsic evidence can be considered in assessing the context and reliability of the audio recording from this date. The first four minutes of the conversation are quite clear and audible. I was able to understand and follow it without the assistance of the transcript and was then able to verify that the transcript is accurate. The final five and a half minutes of the audio recording are not audible and are not transcribed. This may be something that affects the ultimate weight to be given to the audible portion of the conversation, but it is not, in my view, a bar to admissibility. The transcribed portion of the conversation is sufficiently clear for me to assess its substance and the context, particularly in light of the relevant extrinsic evidence. It therefore meets the threshold test for admissibility.

[36] Once again, this determination by me does not mean that this evidence will be admissible for its truth at the trial proper. It too must satisfy the Carter test. There will be a very real issue about whether Mr. Suri’s apparent plan to commit a violent offence against an unknown person constitutes a statement made in furtherance of any of the conspiracies specified in the indictment. However, the audible portion of session 2256 does meet the threshold test of reliability such that it can be considered as evidence which may qualify for admission through an exception to the hearsay rule.

Conclusion

[37] For the foregoing reasons, no portion of session 94, 95, 96, 97, 98, 99, 100 or 475 is sufficiently reliable to be admissible. The first four minutes and eleven seconds of session 563 are adequately clear and audible to meet the threshold test of reliability and are therefore admissible. Likewise, the portion of session 2256 which is transcribed (and begins at approximately 20:24:37) meets the threshold test of reliability and is admissible. No other portion of session 563 or 2256 is admissible.

Justice L. Bird

Released: March 27, 2015