ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR14900001420000
DATE: 20151211
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DEXTER BOYCE
Defendant
Jeremy Streeter, for the Crown
Dean Embry, for the Defendant Mr. Boyce
HEARD: October 13-15, 19 and 20, 2015
SPIES J.
Introduction
[1] Dexter Boyce is charged with conspiracy to import a controlled substance into Canada between the dates of November 18, 2011 and December 1, 2011, contrary to s. 6(1) of the Controlled Drugs and Substances Act, (“CDSA”) and s. 465(1) of the Criminal Code, as well as attempting to import a controlled substance into Canada during the same time frame, contrary to s. 6(1) of the CDSA and s. 463(b) of the Criminal Code. He re-elected trial by judge alone and pleaded not guilty to both charges.
[2] It is alleged that Mr. Boyce was a member of a conspiracy to import almost 356 grams of cocaine, hidden inside two packages of travel brochures, that were shipped via Federal Express (“FedEx”) from Costa Rica to Toronto and that Mr. Boyce was the person who had a contact at FedEx who was to intercept the packages upon arrival in Toronto. The cocaine was discovered when the packages were examined in Panama, a transit point for the shipments.
[3] There are three components to the Crown’s case. First of all, some communications between Mr. Boyce and other alleged members of the conspiracy were intercepted and a DVD containing the actual intercepts and a Call Book containing transcriptions of what was said or texted on intercepted phones, including the Crown’s version of who the call was from and to, the phone number intercepted and the time and date, was entered into evidence (“Intercepted Communications”). The accuracy of most of what was set out in the Call Book was admitted, save at the outset of the trial the voice identification of Mr. Boyce was in issue. It was ultimately admitted by Mr. Boyce that the communications attributed to him are in fact his communications. This was corroborated by surveillance evidence called by the Crown.
[4] Given the contents of the Intercepted Communications and the surveillance evidence of Mr. Boyce, there can be no doubt that the Crown has proven that a conspiracy existed, that Mr. Boyce was a member of the conspiracy and that the purpose of the conspiracy was to import something that was illegal from Costa Rica to Toronto, hidden inside two FedEx packages. However, there is also no dispute that the Intercepted Communications make no reference to cocaine or illegal drugs, directly or indirectly, and do not in any other way identify what this illegal thing was.
[5] As a result, a key part of the Crown’s case is based on documents obtained from Panama (collectively the “Panamanian Documents”) as a result of a request made pursuant to the Mutual Legal Assistance in Criminal Matters Act, R.S.C., 1985, c. 30 (4th Supp.) (“MLACMA”). The documents arise from the seizure in Panama of two packages when they were found to contain what the Panamanian authorities believed was cocaine. As a result, the two packages did not continue on to Toronto. The white powder found hidden in the two packages was analyzed in Panama and determined to be cocaine. A third package, shipped at the same time, which did not contain drugs, did arrive in Toronto and was inspected by a Canada Border Agency Intelligence Officer. No evidence was presented as to whether or not this package was picked up and if so by whom.
Issues
[6] The Crown seeks to rely upon the truth of the contents of the Panamanian Documents to explain the discovery of the drugs suspected to be cocaine, the events that followed including the delivery of the cocaine to the Panamanian Laboratory of Controlled Substances (“Panamanian Lab”) and the results of the testing done by the Head Chemist from the Lab; Anay Vargas Juzado (“Mr. Juzado”), who analyzed the substance and confirmed that the substance was cocaine with a total weight of 355.86 grams (“Panamanian Expert Report”).
[7] There is no dispute that the Panamanian Documents are authentic; i.e., that they are what they purport to be. The issue is the admissibility of these Documents and their probative value and in particular whether or not the truth of their contents has been proven by the Crown.
[8] Mr. Embry on behalf of Mr. Boyce brought a pre-trial application that was heard by Justice Croll on June 15, 2015 (“Pre-Trial Ruling”; R. v. Boyce, 2015 ONSC 4062), to exclude the Panamanian Documents including the Panamanian Expert Report from evidence at this trial. That application was dismissed and counsel agreed to be bound by the ruling made by Justice Croll, regardless of whether or not she was the trial judge.
[9] Mr. Streeter on behalf of the Crown takes the position that the admissibility of the Panamanian Documents including the Panamanian Expert Report was determined by the Pre-Trial Ruling. In the alternative, if admissibility is still in issue, Mr. Streeter submits that these Documents are admissible pursuant to s. 36(1) of the MLACMA or the common law business records exception to the hearsay rule.
[10] If the Panamanian Documents are admissible, then Mr. Streeter submits that it is up to this Court as the trier of fact to determine the probative value, or weight, to be attributed to them, pursuant to s. 36(2) of MLACMA or otherwise. He argues that the Documents are reliable and contain enough circumstantial guarantees of trustworthiness to allow this Court to draw the following reasonable inferences: 1) that two FedEx packages as described in the Documents were intercepted and seized in Panama; 2) that those same packages were sent to the Panamanian Lab for testing; and 3) that the results of those tests were that the packages contained approximately 355 grams of cocaine. It is his position that the Crown did not need to call any of the persons who authored the Panamanian Documents as witnesses, including Mr. Juzado.
[11] Although Mr. Embry takes the position that some of the conclusions that Justice Croll came to are not binding upon me, during closing submissions he conceded that the effect of her Pre-Trial Ruling is that the Panamanian Documents are admissible in that they meet the requirements of s. 36(1) of the MLACMA. However, it is his position that the Panamanian Documents and especially the Panamanian Expert Report have no probative value and should be given no weight.
[12] As I understand it, had this trial been a jury trial, it was understood between counsel that the Panamanian Documents that were ruled admissible by Justice Croll would go to the jury and the trial judge would instruct the jury as to how their probative value could be assessed.
[13] This case has now proceeded before me as judge alone. Mr. Streeter tendered the Panamanian Documents through Officer Wong, who was involved with the sending of the Mutual Legal Assistance Treaty (“MLAT”) request to Panama and liaising with the Crown in that regard. Officer Wong prepared the documents for court removing any not considered by Justice Croll. They were introduced in a tabbed binder as an exhibit, reserving the question of the purpose for which these Documents are admissible to be resolved following argument.
[14] Initially Mr. Embry asked that this determination be made before Mr. Boyce was put to his election. However, at the conclusion of the Crown’s case, Mr. Embry advised that regardless of my ruling, Mr. Boyce was electing not to call evidence. As a result, the closing submissions dealt with the admissibility of the Panamanian Documents and the merits of the Crown’s case.
[15] There is no dispute that if I find the contents of the Panamanian Documents to be true, a connection can be made between the two packages of cocaine that were seized and tested in Panama and the Intercepted Communications and Mr. Boyce would be found guilty on both counts. On the other hand, if all of the Panamanian Documents are found not to have any probative value, then no such connection can be made and Mr. Boyce must be acquitted. There is also a disputed middle ground, if only some of the Panamanian documents are found to be true, which Mr. Streeter asserts would result in convictions.
(continued exactly as in the source text…)
SPIES J.
Date: December 11, 2015
Edited Judgment Released December 14, 2015
COURT FILE NO.: CR14900001420000
DATE: 20151211
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DEXTER BOYCE
Defendant
REASONS FOR JUDGMENT
SPIES J.
Released: December 11, 2015