R. v. Khiar, 2015 ONSC 286

COURT FILE NO.: CR-13-30000828

DATE: 20150114

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Ibrahim Khiar

BEFORE: E.M. Morgan J.

COUNSEL: Molly Flanagan, for the Crown

Marco Forte, for the Defendant

HEARD: January 9, 2015

ENDORSEMENT Re admissibility of intercepted coMMUNICATIONs

[1] The Defendant is charged with conspiracy to commit weapons trafficking. The indictment, as amended, reads:

IBRAHIM KHIAR stands charged that he, on or about the 21st day of September in the year 2011, in the City of Toronto, in the Toronto Region, did conspire with Guyvin JULY, Devaroo ANDERSON and persons unknown to commit an indictable offence, to wit: weapons trafficking, contrary to section 465(1)(c) of the Criminal Code.

[2] The matter is being tried by me as judge alone. The question at hand has arisen mid-trial, just before the Crown closes its case. At the outset of the trial, counsel for the Crown filed with the court a 34-tab brief of transcripts of intercepted communications. The intercepts at issue are telephone conversations or text messages, some of which involve the Defendant and others of which involve one of his alleged co-conspirators, Mr. Guyvin July, but not the Defendant.

[3] Defense counsel explains that at the outset he consented to the Crown’s brief being filed on a provisional basis. He states that in accordance with R v Carter, 1982 CanLII 35 (SCC), [1982] 1 SCR 938, I am to make a preliminary determination as to whether a conspiracy exists based on all of the available evidence, and only thereafter am I to determine the admissibility of the particular conversations in issue. In Carter, the Supreme Court of Canada set out a three-step analysis that the trier of fact must go through in order to conclude beyond a reasonable doubt that a conspiracy exists of which the accused is a member.

[4] Counsel for the defense concedes that the transcripts found at tabs 7 through 25 of the Crown’s brief are admissible under the co-conspirator exception to the hearsay rule. He therefore consents to their being admitted without being introduced by any witness. These transcripts pertain to conversations that took place on dates between September 14 and 21, 2011, which is the time frame in which the conspiracy involving the Defendant is alleged to have taken place. Although the defense denies the Crown’s allegations, defense counsel agrees that conversations between the Defendant and an alleged co-conspirator that took place during the September 14-21, 2011 period are probative of the issues that will be before the trier of fact in respect of the conspiracy charge.

[5] By contrast, the intercepted conversations and text messages transcribed at tabs 1 through 6 and 26 through 34 took place prior to the period in which the Defendant was allegedly involved in any conspiracy. Defense counsel submits that these conversations fall into no recognized exception to the hearsay rule and are inadmissible unless Mr. July (or, presumably, the person at the other end of the given communication) is called to identify them and establish their relevance. Defense counsel also contends that since these communications did not take place within the conspiracy dates, their probative value will be greatly outweighed by their prejudicial effect on the Defendant.

[6] Crown counsel agrees that the intercepted conversations that fall outside of the conspiracy period would not be admissible under the co-conspirator exception to the hearsay rule, but she submits that all of the intercepted conversations are admissible under the principled exception to the hearsay rule. She contends that regardless of the dates on which the conversations took place, they all meet the test of necessity and reliability as set out by the Supreme Court of Canada in R v Khan, 1990 CanLII 77 (SCC), [1990] 2 SCR 531. She further submits that, as Iacobucci J. stated in R v Starr, 2000 SCC 40, [2000] 2 SCR 144, at para 155, “[i]n the event of a conflict between the two [i.e. the principled approach and the traditional hearsay exceptions], it is the principled approach that must prevail.”

[7] In my view, both counsel have got it partly right and partly wrong.

[8] The Crown is correct that the old category approach to the hearsay exceptions – of which the co-conspirator exception was a part – has been surpassed, or at least supplemented, by the principled approach. As a result, the fully developed proof of conspiracy described in Carter need not be made out before the evidence can be determined to be admissible.

[9] The Carter test, as explained by the British Columbia Court of Appeal in R v Tran, 2014 BCCA 343, at para 78, is applicable at the end of the trial in order “to reach a verdict in a case in which the Crown relies on the co-conspirator exception to the hearsay rule”. At this stage, the trial judge’s role has been described by Rosenberg JA in R v Bogiatzis, 2010 ONCA 902, at para 42, as a more modest one: “[t]he trial judge must determine whether there is some evidence upon which a jury [or judge as trier of fact] could find that the declaration was made in furtherance of the conspiracy.” [emphasis added]

[10] On the other hand, the defense is correct that the evidence must, first and foremost, be relevant to the issues at hand; moreover, the probative value of what would otherwise be inadmissible hearsay must outweigh the prejudicial effect. The Court of Appeal held in R v McNamara (No 1) (1981), 1981 CanLII 3120 (ON CA), 56 CCC (2d) 193, at para 572, that as a preliminary matter the trial judge must determine “whether there is some evidence upon which a jury could find that the declaration was made in furtherance of the conspiracy” [emphasis added].

[11] As Rosenberg JA explained it in Bogiatzis, at para 43, that means at the very least that the statements that the Crown seeks to admit “were capable of being in furtherance of an on-going conspiracy” [emphasis added]. The fact that some of the intercepted conversations pre-date the interactions between the Defendant and his alleged co-conspirators does raise a question in this regard.

[12] The recent observation by Mew J. in MacKay v Metropolitan Toronto Condominium Corporation No 9852014, ONSC 2863, at para 56, in respect of a civil dispute, applies with equal force to the hearsay evidence in issue here: “[n]ot surprisingly, context is everything.” While it is true, as defense counsel points out, that the conspiracy between the Defendant and the co-conspirators named in the indictment is alleged to have taken place between certain specific dates, and so it is only the communications on those dates that would form the res gestae of the offense, the conversations must be understood in the entirety of their context. Otherwise, at least some of them appear to be meaningless.

[13] The September 21, 2011 text messages, for example, contain an exchange between the Defendant and Mr. July in which the two of them discuss their imminent meeting. That meeting is at the heart of the alleged firearms transaction, and so the set-up of the meeting would lie at the heart of the alleged conspiracy. However, on the surface the texts exchanged between the two of them yield little of legal interest:

Tab 17 – Mr. July to Defendant: “Will be ready later today.”

Tab 18 – Defendant to Mr. July: “Aiight.”

Tab 19 – Defendant to Mr. July: “R u ready.”

Tab20 – Mr. July to Defendant: “Nah around 7-8ish the man came to drop them off earlier but I wasn’t around so I gotta wait till he doubles back.”

Tab 21 – Defendant to Mr. July: “Aiight.”

[14] The Crown produced an expert witness, Michael Press, to testify as to the technical language used in some of the intercepted conversations. However, no amount of technical knowledge can help decipher a conversation at this level of generality. The conversation must be contextualized by what comes before it if one is to understand that a meeting is being arranged with respect to the sale of firearms or ammunition.

[15] As indicated above, the first six tabs of transcripts reflect conversations and text messages that took place before the start of the alleged conspiracy involving the Defendant – specifically, a telephone conversation on August 18 and an exchange of texts on September 2, 2011. The conversations are a bit cryptic, but they contain comments about boxes marked “38” and other references that reflect some of Mr. Press’ explanations about firearms and ammunition. The references here also match other technical references found in the September 14 through 21, 2011 conversations involving the Defendant himself.

[16] Counsel for the Crown states that the August 18 and September 2 conversations are, in effect, evidence of Mr. July’s participation in a larger firearms trafficking conspiracy of which the part involving the Defendant was a small fraction. She submits that the indictment alleges that Mr. July is a co-conspirator with the Defendant, and that evidence that shows Mr. July to be part of a larger, ongoing conspiracy to traffic in weapons is highly probative of the issues involving the Defendant.

[17] The Crown wishes to use the conversation and text messages at the first six tabs of its brief not to demonstrate anything about the Defendant’s conduct prior to September 14, 2011, but to show what his co-conspirator was up to just weeks before the Defendant comes onto the scene and to thereby help understand the conversations in which the Defendant himself was involved. Although these intercepts pre-date the time of the Defendant’s involvement, in my view they do provide some context for understanding the exchanges within the time that the Defendant was involved.

[18] As for the conversations and text messages found at tabs 26-34 of the Crown’s brief, they are dated August 13, 17, and 18, 2011. They involve conversations between Mr. July and either an unidentified person or an individual named Mr. Hibbert, who is apparently an individual not involved in the present case. With the exception of the conversations dated August 13 and 17, 2011 found at tabs 26 and 27, these conversations and texts are so cryptic that on the surface they seem unrelated to the charges against the Defendant.

[19] In the intercepted communications found at six of the last eight tabs of the brief (i.e. those other than tabs 26 and 27), Mr. July and others appear to be talking and texting about unrelated persons or about cleaning products. Mr. July and Mr. Hibbert spend some time discussing an unidentified “youth”, and they converse in substantial detail about cleaning products that they say can be purchased at Canadian Tire. Whether this all relates to weapons trafficking, or to the care and cleaning of firearms, is not clear from the transcribed communications at tabs 28-34; there are no discernable references in those communications to weapons sales or to anything that Mr. Press identified as technical firearms or ammunition terminology.

[20] Although counsel for the Crown makes the same contextualization argument for the last eight tabs as she makes for the first six, the conversations and texts transcribed at tabs 28 through 34 of her brief do not appear on the surface to put anything in context. They would require a witness to testify as to what was being talked about before they could shed light on anything. Taken on their own, the probative value of these intercepted conversations is negligible; giving them meaning would necessarily entail the trier of fact guessing that they refer to firearms, and such guesswork without reliable evidentiary support would be highly prejudicial to the Defendant.

[21] As for the intercepted telephone conversations dated August 13 and 17, 2011 found at tabs 26 and 27, those fall into a similar category as the communications found at tabs 1 through 6. That is, they contain what appear to be references to the purchase and sale of weapons. These include a request for some “bangers”, followed by a conversation containing an offer of “a little snub three-eight”. Again, this latter reference reflects the technical language of firearms and ammunition designations that Mr. Press explained in his testimony. Although these two conversations do not involve the Defendant, they may help put the subsequent conversations between the Defendant and Mr. July into an understandable context.

[22] To return to Justice Rosenberg’s language in the Bogiatzis case, the communications transcribed at tabs 1 through 6 of the Crown’s brief, as well as those at tabs 26 and 27, are capable of providing some evidence of acts in furtherance of the alleged conspiracy. By contrast, the communications transcribed at tabs 28 through 34 are not similarly capable of providing some evidence of acts in furtherance of the alleged conspiracy without a witness testifying as to their meaning.

[23] The question remains, then, as to whether the communications at tabs 1-6 and 26-27 of the Crown’s brief can meet the two-part test for admissibility set out in Khan.

[24] The first Khan criterion that must be met by the hearsay evidence is necessity. In R v Smith, 1992 CanLII 79 (SCC), [1992] 2 SCR 915, at 933-934, Lamer CJC stated that, “[t]he criterion of necessity must be given a flexible definition, capable of encompassing diverse situations.” I am advised by the Crown that Mr. July is physically available in the jurisdiction; that said, the Court of Appeal has made it clear that “necessity can be grounded in more than the unavailability of the declarant”: R v Chang (2003), 2003 CanLII 29135 (ON CA), 173 CCC (3d) 397, at para 105 (Ont CA).

[25] In R v Wilder, 2003 BCSC 1840, at paras 680-681, the British Columbia Supreme Court reasoned that, “it is a remote possibility that a co-conspirator will confess to a court… Therefore, this is an appropriate circumstance where hearsay may be admitted more on the basis of expediency or convenience than on the basis of necessity.” This type of expediency – i.e. where the co-conspirator will predictably be uncooperative if called to testify – suffices to fill the necessity criterion.

[26] This application of necessity was confirmed in R v Lam, [2005] AJ No 307 (QB), at para 38, where Burrows J., quoting David Layton, “R. v. Pilarinos: Evaluating the Co-conspirators or Joint Venture Exception to the Hearsay Rule”, (2002) 2 CR (6th) 293, at 310, found that, “[c]ourts have thus defined necessity fairly widely to include cases where evidence of the same value cannot be obtained from the declarant.” He went on to reason, at para 41, that, “[e]ven if the out-of-court declarants recorded in these wiretap calls were brought to Court to testify, it is unlikely that their evidence could ever approach the quality of the wiretap.”

[27] That reasoning describes a scenario that is indistinguishable from the case at bar. There is no reason to think that Mr. July’s testimony will be tendered cooperatively, or that it will be helpful in discerning the essence of the intercepted conversations; quite the contrary. Mr. July is at the centre of the conspiracy in which the Defendant is alleged to have participated. The wiretaps and surveillance that led to the Defendant’s arrest were, according to the police officers who have testified, originally aimed at Mr. July. It is highly unlikely that, even if he could be brought before the court, his evidence of his own conversations will be as valuable as the transcripts of the intercepted communications.

[28] Under the circumstances, the second criterion in Khan – i.e. reliability – is not particularly controversial here. The evidence in issue takes the form of transcribed communications. The existence of these intercepted conversations and texts alleviates the need for a witness to recall the precise contents of the communications, and eliminates the possibility that a person on the witness stand might somehow re-cast or re-characterize the exchanges. As the British Columbia Court of Appeal stated in R v Lepage; R v Oliynyk, 2008 BCCA 132, at para 42, “[t]elephone conversations between participants in a conspiracy furnishes [sic] cogent and reliable evidence of the very essence of the conspiracy. It is undeniably the best evidence that exists concerning what is occurring between the conspirators…”

[29] The wiretap transcripts are not only reliable in the sense that they accurately recount what was said; in addition, they relate a context – contemporaneous telephone conversations and texts – that can be relied on as conveying the truth of the words uttered therein. Ducharme J. noted in R v Magno, 2012 ONSC 4001 (SCJ), at para 60, quoting R v Lam, [2005] AJ No 307 (QB), at para 45, that this type of statement is typically offered by a declarant against his own interest, making it all the more reliable:

It has often been observed that this type of evidence is reliable because in the context which the words were spoken, the parties would have had little or no motivation to make things appear other than they actually were…The possibility that they would invent facts for the purpose of creating a false case against either accused by uttering words that created a case against themselves as well can, in my view, be safely ignored.

[30] The transcripts found at tabs 1-6 and 26-27 of the Crown’s brief are both necessary and reliable, as those terms have been used in the applicable case law. Given that this evidence is capable of being part of an ongoing conspiracy, or of providing the context necessary to give meaning to other conversations that are capable of being part of an ongoing conspiracy, it falls within the principled exception to the hearsay rule.

[31] Accordingly, tabs 1 through 27 of the Crown’s brief of intercepted communications are admissible in evidence. Tabs 28 through 34 of the Crown’s brief are inadmissible unless the Crown produces a witness to introduce them.

Morgan J.

Date: January 14, 2015