CITATION: R. v. Tsega, 2016 ONSC 3717
COURT FILE NO.: 11-RM2878
DATE: 2016/06/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
SAM TSEGA
Respondent
Mark Moors and Dallas Mack, for the Applicant
Giuseppe Cipriano, Dominic Lamb, and Anthony Paciocco, for the Respondent
HEARD: April 6-7, 2016
ADMISSIBILITY RULING #3: INTERCEPTED PHONE CONVERSATIONS
Aitken J.
[1] The background of this case has been set out in Admissibility Rulings #1 and #2, and is incorporated into these reasons.
Issue
[2] During the examination-in-chief of Joshua Jackson, the brother of Sam Tsega, the Crown sought to tender intercepted telephone conversations between Joshua Jackson and others as direct evidence that those conversations occurred. The Crown did not seek to introduce this evidence for the truth of its contents (i.e. as hearsay evidence), but instead wanted to rely on that evidence to show Mr. Jackson’s state of mind, knowledge, and understanding at the time; the source of the information leading to that state of mind, knowledge, and understanding; and, if the source was Sam Tsega, Mr. Tsega’s state of mind, knowledge and understanding at that time.
[3] The Crown sought to follow the same procedure for the same purposes during the examination-in-chief of Susan Jackson, Sam Tsega’s mother.
[4] The Defence objected to the admission of this evidence unless the Crown first went through the steps of having these witnesses refresh their memories through reference to transcripts of the intercepted conversations and, if that did not work, through establishing the prerequisites for past recollection recorded. The Defence also took the position that the intercepts were inadmissible hearsay evidence, based on a number of arguments. I see no need to specifically address those hearsay arguments as the Crown was not seeking to tender this evidence for the truth of its contents.
[5] The Defence took no issue with the legality of the wiretaps and their authenticity and with the identity of the speakers in each intercepted conversation.
[6] When the issue arose, Crown counsel was allowed to proceed as he requested, namely, to play the recordings of the conversations and to ask Joshua Jackson and, subsequently, Susan Jackson to comment on what was heard. These are the reasons for that ruling.
Analysis
[7] In R. v. Violette, 2008 BCSC 1683, [2010] B.C.W.L.D. 777, at para. 30, Romilly J. stated:
I also wish to briefly address Mr. Lising’s submission that the examination-in-chief of Mr. Plante is flawed as he is improperly using the transcripts of the intercepted communications as his notes, and that he should have to exhaust his memory about an intercept before it is played for him. In my view, the intercepts are quite clearly real evidence. Given that circumstance, there is no reason why Mr. Plante should be required to exhaust his memory about each intercept before it is played for the jury.
[8] In Violette, audiotapes of the intercepted communications were played for the witness and he was asked to comment on his understanding of the substance of the conversation.
[9] In R. v. Cater, 2012 NSPC 15, 315 N.S.R. (2d) 46, Derrick J. ruled that the intercepted communications in that case were admissible without the need to question the declarants in advance on a voir dire. This was so even though the purpose for which the intercepted communications were being tendered in that case was for the truth of their contents. Derrick J. concluded that voir dires to determine the necessity and reliability of intercepted communications should be rare. Relying on R. v. Chang (2003), 2003 CanLII 29135 (ON CA), 173 C.C.C. (3d) 397 (Ont. C.A.), at para. 132, Derrick J. stated that for an accused to trigger the need for such a voir dire, he must be able to point to evidence raising serious and real concerns about reliability emerging from the circumstances in which the declaration was made (para. 43).
[10] The ruling of Derrick J. was upheld on appeal (2014 NSCA 74, 349 N.S.R. (2d) 225, at paras. 173-175), where Saunders, J.A. explained:
I agree with Judge Derrick that the intercepts were inherently reliable because of the circumstances in which they were obtained. The participants did not know that they were being recorded. There was no motive for them to lie. The statements were spontaneous. They were made contemporaneously with ongoing events. They were accurate. They were complete.
The necessity to receive this evidence arose because it was the best evidence available. It was better than calling witnesses three years after the events occurred. It was better than calling witnesses whose testimony would be imbued with unreliability and subject to Vetrovec warnings.
The Supreme Court of Canada’s statement in Couture at ¶98 is especially apt in this case:
When there is no real concern about a statement’s truth and accuracy because of the circumstances in which it came about, there is no good reason why it should not be considered by the trier of fact, regardless of its hearsay form.
[11] In R. v. Lam, 2005 ABQB 121, 43 Alta. L.R. (4th) 139, at paras. 37-47, Burrows J. came to the same conclusion regarding necessity and reliability in regard to intercepted communications. He concluded that it is unlikely that the oral evidence of any witness could ever approach the quality of wiretap evidence, and it is this factor of the quality of the evidence that makes audiotapes of intercepted communications necessary. It is simply the best evidence of what was said. It is the same aspect of being an actual recording of what was said that makes the evidence reliable when the communication unfolds in a natural way and with no suspicious circumstances. The same analysis was done and conclusions drawn in R. v. Beauchamp, 2009 CanLII 64185 (ON SC).
[12] In all of the cases just referred to, the intercepted communications were being tendered for the truth of their contents, and therefore an analysis of whether the evidence met the requirements of necessity and reliability had to be undertaken before the evidence was admitted as hearsay evidence. That analysis is not required here, where the evidence is not being tendered for the truth of its contents. However, inherent, if not always expressed, in the decisions referred to above was each court’s acceptance that, other than in exceptional circumstances, wiretap evidence is admitted as real evidence upon which witnesses may comment, without there being a requirement for witnesses to first exhaust their memories of the conversations, and without restricting the wiretap evidence as a tool to refresh memory or as past recollection recorded.
[13] Finally, it is worth noting that, although neither Joshua Jackson nor Susan Jackson is a witness in regard to whom a Vetrovec warning would be required, nevertheless, they are the brother and mother of the accused. It is clear from all of the evidence that both have a very close relationship with the accused and desperately want him to be found not guilty of any offence. It was a challenge for Crown counsel to obtain meaningful evidence from these witnesses – so much so in the case of Joshua Jackson that much of his testimony had to be adduced through the mechanism of past recollection recorded. It was patently obvious with both witnesses that, had a procedure been followed to get them to refresh their memories about specific conversations that occurred more than five years ago, likely very little would have been accomplished.
[14] It is for these reasons that I admitted audiotapes of the intercepted communications without any preliminary voir dire and allowed Crown counsel to question Joshua Jackson and Susan Jackson in their regard. As noted above, that evidence was admitted to show the state of mind, knowledge, and understanding of Joshua Jackson and Susan Jackson at the time; the source of the
information leading to that state of mind, knowledge, and understanding; and, if the source was Sam Tsega, Mr. Tsega’s state of mind, knowledge and understanding at that time.
Aitken J.
Released: June 8, 2016
CITATION: R. v. Tsega, 2016 ONSC 3717
COURT FILE NO.: 11-RM2878
DATE: 2016/06/08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
– and –
SAM TSEGA
Respondent
ADMISSIBILITY RULING #3 –
INTERCEPTED PHONE CONVERSATIONS
Aitken J.
Released: June 8, 2016