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 29, 2016
ADMISSIBILITY RULING #4: TEXT MESSAGES
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] The Crown seeks to tender the following text messages sent by Sam Tsega, Kristopher McLellan, and Dylon Barnett, for the purposes indicated, with the italicized messages being those in issue:
| Date and time | Sender | Purpose for admission |
|---|---|---|
| Feb. 21, 2010 prior to leaving Toronto | Barnett | Truth |
| Feb. 21, 2010 prior to leaving Toronto | Tsega | Truth |
| Feb. 21, 2010 prior to leaving Toronto | McLellan | Truth |
| Feb. 21, 2010 en route to Ottawa | Barnett | Narrative and context |
| Feb. 21, 2010 en route to Ottawa | Tsega | Truth |
| Feb. 22, 2010 after the murder | Barnett | Truth |
| Feb. 22, 2010 after the murder | Tsega | Truth |
[3] There is no dispute that all of the text messages sent by the accused, Sam Tsega, to others at any point in time are admissible for the truth of their contents (R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688, at para. 20).
[4] The Defence does not contest the admissibility for the truth of their contents of the text messages sent by Kristopher McLellan prior to the Toronto Three [^1] leaving Toronto.
[5] The Crown seeks to tender the text messages sent by Dylon Barnett while en route between Toronto and Ottawa only for the purpose of narrative and context, and the fact that the messages were sent, not for the truth of their contents. The Defence has no objection to this.
[6] What is in issue is that the Crown seeks to tender for the truth of their contents the text messages sent by Dylon Barnett both before leaving Toronto and after the murder was committed in Ottawa and the Toronto Three were heading back to Toronto. The Defence objects to these text messages being admitted for the truth of their contents. More specifically, the text messages of Dylon Barnett that are the subject of argument are the following:
| Date/Time | Sender | Receiver | Content |
|---|---|---|---|
| 21-Feb-2010/4:18:22 PM | Barnett | McLellan | Dint text back lol |
| 21-Feb-2010/5:40:13 PM | Barnett | McLellan | KK who coming? |
| 21-Feb-2010/5:45:07 PM | Barnett | McLellan | Bring Cench |
| 22-Feb-2010/1:09:00 AM | Barnett | Tsega | U do it? |
[7] The Crown argues that these text messages are admissible under the present intentions or the co-conspirators’ exceptions to the hearsay rule. The Defence argues that the admission of these text messages for the truth of their contents would be inconsistent with the principled approach to hearsay. The Defence raises two specific concerns. First, although Dylon Barnett is a compellable witness at this trial, the Crown did not call him. This negates the necessity requirement for admission. Second, the entire conversations between Dylon Barnett, Kristopher McLellan, and Sam Tsega are unavailable, and therefore the individual texts cannot be put into context. This invites speculation and opens the door to distortion. This seriously undermines the reliability requirement for admission.
[8] On May 20, 2016, I provided counsel with my ruling that, although all of the text messages are admissible for narrative and context and as proof that these communications occurred, only the second and third are admissible for the truth of their contents, and they are admissible on the basis of the present intentions and the co-conspirators’ exceptions to the hearsay rule. These are my reasons for that ruling.
Analysis
First and Fourth Contested Text Messages
[9] Before evidence is admitted, it must be found to be probative of and material to some issue at trial. It has not been explained to me how the text message “Dint text back LOL” is probative of and material to any issue that the court needs to decide. Any interpretation that the court could assign to this message would be pure speculation. The meaning of this phrase, and the individual or individuals to whom it may refer, remain a mystery. The content of the text message is meaningless in the context of the evidence received to date. The court, therefore, cannot put the content to any useful purpose. The fact that this text message was sent from Mr. Barnett to Mr. McLellan at this time may be useful in terms of context or narration, but the content itself, at this time, has no probative value.
[10] The text message: “U do it?” is slightly less vague in that it is a specific question put to Sam Tsega by Dylon Barnett. But beyond that, this statement could have a variety of meanings and, on the basis of the evidence to date, the court cannot draw any reasonable inference as to what meaning is the accurate one. Was Dylon Barnett aware that Sam Tsega was planning to do something? Had Dylon Barnett asked Mr. Tsega to do something? Was Dylon Barnett aware that something had happened and wondered whether Mr. Tsega had done it? This text message has no probative value in terms of its content because its content could mean a variety of things. Its probative value lies simply in the fact that a communication of this nature occurred between Mr. Barnett and Mr. Tsega at a particular point in time.
[11] Thus, the first and fourth text messages are not admissible for the truth of their contents.
Second and Third Contested Text Messages
[12] The second and third text messages in question are of a different quality. In the context of the evidence to date considered as a whole, it is reasonable to infer that, in the second text message, when Mr. Barnett says: “KK who coming?”, Mr. Barnett is asking Kristopher McLellan what person or persons will be accompanying them to Ottawa to do the home invasion. Mr. McLellan responds “Mullen”, which has been admitted for the truth of the contents. Mr. Barnett’s next text message to Mr. McLellan says “Bring Cench”. It is reasonable to infer that, in this text message, Mr. Barnett is recommending to Mr. McLellan, or is telling him, to bring someone by the name of “Cench”. These two text messages speak to the planning for the home invasion that was done by the Toronto Three prior to their leaving Toronto.
[13] Hearsay is presumptively inadmissible because of the danger to the fairness or truth-seeking function of a trial that is posed by the inability to test and assess the declarant’s memory, perception, narration, or sincerity underlying the content of the statement (R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at paras. 31-32, 44). However, hearsay may be admissible if it fits within one of the traditional exceptions to the hearsay rule (and is not shown to be lacking in the requirements of necessity and reliability) or if it is deemed necessary and reliable under the principled approach to hearsay.
[14] As explained by McLachlin C.J.C. in R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15:
a. Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place.
b. A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance.
c. In “rare cases”, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case.
d. If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.
Present Intentions Exception to the Hearsay Rule
[15] The present intentions exception to the hearsay rule “arises when the declarant’s statement is adduced in order to demonstrate the intentions, or state of mind, of the declarant at the time when the statement was made” (R. v. Smith, [1992] 2 S.C.R. 915, at para. 22). It is now recognized that this exception has the added requirement that the statement “be of a present existing state of mind, and must appear to have been made in a natural manner and not under circumstances of suspicion” (R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 168, quoting Wigmore on Evidence, vol. 6 (Chadbourn rev. 1976), at §1725, p. 139 (emphasis in original)). Such statements may also be used to support an inference that the declarant followed through on the intended course of action, so long as it is reasonable on the evidence for the trier of fact to infer that the declarant did so (Starr, at para. 169). Statements of intention are not admissible against someone other than the declarant, unless a hearsay exception (such as the co-conspirators’ exception) can be established for each level of hearsay (Starr, at paras. 170-174).
[16] There are no “circumstances of suspicion” attaching to the text messages from Mr. Barnett to Mr. McLellan. Mr. Barnett had no reason to believe that anyone other than Mr. McLellan would see the text messages or to anticipate that such messages might one day fall into the hands of the police and be used as evidence at a murder trial. As far as Mr. Barnett was aware, he was sending private communications to Mr. McLellan. The circumstances in which Mr. Barnett sent the text messages to Mr. McLellan raise no concern that he was not expressing his true state of mind at the time or that he had any motive to lie at that time.
[17] As well, the messages are short and clear and, in the context of the evidence to date, easily understood.
[18] Both messages express Mr. Barnett’s state of mind at the time they were communicated. The text message: “KK who coming?” expresses Mr. Barnett’s lack of knowledge about who would be accompanying himself and Mr. McLellan to Ottawa, and his interest in who would be joining them. This was an issue on his mind, and he wanted to know what Mr. McLellan had worked out. In the text message, “Bring Cench”, Mr. Barnett was expressing a wish or desire on his part that Mr. McLellan would bring the person called Cench. This evidence is relevant to the issue of the Toronto Three’s intention to do a home invasion and the level of planning that went into this undertaking. The combination of the two text messages leads to the reasonable inference that it was Mr. Barnett’s intention at the time that he and Mr. McLellan would not be undertaking the home invasion without more manpower involved.
[19] The Defence argues that, although the two text messages may meet the requirements of the present intentions exception to the hearsay rule, and although this exception in a general way has been found compliant with the dual requirements of necessity and reliability under the principled approach to hearsay (Smith), the text messages at issue here should not be ruled admissible due to concerns about necessity and reliability in the circumstances of this case. I reject this argument for reasons that will be explained shortly.
[20] Mr. Barnett’s expression of his mental state, even if admissible, is admissible against Mr. Tsega only if that evidence meets the requirements of the co-conspirators’ exception to the hearsay rule.
Co-conspirators’ Exception to the Hearsay Rule
[21] As summarized by McLachlin C.J.C. in Mapara, at para. 8:
“Statements made by a person engaged in an unlawful conspiracy are receivable as admissions against all those acting in concert if the declarations were made while the conspiracy was ongoing and were made towards the accomplishment of the common object” (J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 303). Following [R. v. Carter, [1982] 1 S.C.R. 938], co-conspirators’ statements will be admissible against the accused only if the trier of fact is satisfied beyond a reasonable doubt that a conspiracy existed and if independent evidence, directly admissible against the accused, establishes on a balance of probabilities that the accused was a member of the conspiracy.
[22] To invoke the co-conspirators’ exception to the hearsay rule, the following criteria must be met:
- The trier of fact must first be satisfied beyond a reasonable doubt based on all of the evidence that the common unlawful design or conspiracy in fact existed;
- If the common unlawful design or conspiracy is found to exist, the trier of fact must determine whether, based upon evidence directly admissible against the accused, the accused was probably a member or participant in that common unlawful design or conspiracy; and
- The statements of the alleged conspirators sought to be relied on as against the accused must have been made while the conspiracy was on-going and in furtherance of the common unlawful design.
[23] It is only if the trier of fact concludes on a balance of probabilities that the accused was a member or participant in the common unlawful design or conspiracy that the trier of fact then goes on and decides whether the Crown has established this beyond a reasonable doubt. It is only in this last step that the trier of fact can apply the hearsay exception and consider evidence of acts and declarations of co-conspirators done in furtherance of the common unlawful design, while the conspiracy was on-going, as evidence against the accused on the issue of his guilt. (Carter, at para. 11, and Mapara, at paras. 7-8)
[24] Here, there is no dispute that the Toronto Three had a common unlawful design to do a home invasion at the residence of Michael Swan in Barrhaven with the goal of stealing marijuana and money.
[25] The Defence argues that, because the Crown’s factum makes reference to the conspiracy being “an armed home invasion/drug rip”, the Crown must prove that the common unlawful design of the conspirators was to undertake an armed home invasion and not simply a home invasion, and the Crown must prove on a balance of probabilities, using evidence admissible against Mr. Tsega, that he was a member of that particular conspiracy. The Defence argues that there is no evidence admissible against Mr. Tsega that could enable the court to attribute any knowledge to him about the Toronto Three being armed or planning to be armed at the time of the home invasion. In my view, the Defence is overstating the requirement regarding specificity of the nature of the conspiracy.
[26] A conspiracy in complete upon proof of an agreement to carry out an unlawful act (R. v. N.Y., 2012 ONCA 745, 113 O.R. (3d) 347, at para. 89, quoting R. v. O’Brien, [1954] S.C.R. 666, at 668; and R. v. Paradis, [1934] S.C.R. No. 165, at 168). It is not necessary for the accused to be aware of all of the details of the scheme or of everyone involved in it or their respective roles. The accused just needs to be aware of the general nature of the common design and participate in that (N.Y., at para. 89). In this case, there has been extensive evidence concerning the common unlawful design of a home invasion at Michael Swan’s residence with the goal of stealing marijuana and money. Whether or not those entering Mr. Swan’s residence were to be armed or not speaks to details of the scheme and each participant’s role in the scheme. Evidence establishing beyond a reasonable doubt that there was a common unlawful design to do a home invasion, and evidence admissible against Mr. Tsega showing on a balance of probabilities that he was a participant in that common lawful design, is all that is required to meet the first two parts of the Carter test.
[27] The following evidence, admissible against the accused, Sam Tsega, establishes on a balance of probabilities that Mr. Tsega was a participant in the common unlawful design of a home invasion at the residence of Michael Swan to steal marijuana and money:
- Viva voce evidence of Tyler Buchanan, Connor Buchanan, and Kaitlyn Scott that Mr. Tsega knew Michael Swan, knew where he lived, knew that he sold marijuana, and had visited Mr. Swan’s residence;
- Cell phone/text messages showing that Mr. Tsega and Mr. Barnett were in contact in the months leading up to the murder;
- Mr. Tsega’s messages to Mr. Barnett prior to the Toronto Three’s departure from Toronto on February 21, 2010, inquiring, “when you guys leavin?” and advising Mr. Barnett to “bring everything btw”;
- Text messages from Mr. Tsega to Mr. Barnett directing the Toronto Three to his house on the night of the murder;
- Pizza Pizza phone calls from Mr. Tsega ordering pizza for the Toronto Three;
- Intercepts of phone calls in which Mr. Tsega tells Susan Jackson that the Toronto Three attended the Jackson home on the night of the murder;
- Evidence of Joshua Jackson that Mr. Barnett and Mr. McLellan visited the Jackson home on the night of the murder in the company of Mr. Tsega;
- Mr. Tsega’s statement to Connor and Alec Buchanan that, on the night of the murder, he had provided information about Michael Swan to the Toronto Three;
- The Ohio State hoodie discovered in the possession of the Toronto Three at the time of their arrest;
- Evidence of Connor Buchanan that Mr. Tsega’s sister attended Ohio State University;
- Statement of Kyle Mullen implicating Mr. Tsega in the common unlawful design; and
- Statement of Kristopher McLellan implicating Mr. Tsega in the common unlawful design.
[28] The two text messages in question: “KK who coming” and “bring Cench” are communications from one of the co-conspirators, Dylon Barnett, to another co-conspirator, Kristopher McLellan, during the course of the conspiracy (i.e. the planning of the home invasion) and in furtherance of its common unlawful design (i.e. by having sufficient manpower to ensure success).
[29] Thus, the two text messages in question meet the requirements under the co-conspirators’ exception to the hearsay rule.
Principled Approach to Hearsay
[30] The Defence argues that, even if the two text messages fall under traditional exceptions to the hearsay rule, they should not be admissible because they fail to meet the necessity and reliability requirements of the principled approach to hearsay. The onus is on the Defence to establish this shortfall.
[31] In Starr, at para. 213, the Supreme Court held that the traditional categorical exceptions to the general exclusionary rule for hearsay are to be interpreted in a manner consistent with the principled approach to determine the admissibility of hearsay evidence (see also R. v. Chang (2003), 173 C.C.C. (3d) 397 (Ont. C.A.), at para. 62, and R. v. Simpson, 2007 ONCA 793, 231 O.A.C. 19, at para. 16). The principled approach to hearsay takes precedence over the traditional exclusions to the hearsay rule so that, if the hearsay does not meet the criteria of necessity and reliability, it is not admissible even if it comes within one of the established exceptions to the hearsay rule (Chang, at para. 68). Both the present intentions exception and the co-conspirators’ exception have been found to be compliant with the necessity and reliability requirements under the principled approach (generally - Starr; present intentions - Smith; co-conspirators - Chang, at para. 129, Mapara, at para. 31, and Simpson, at para. 24).
[32] In Starr, at para. 214, Iacobucci, J. went on to elaborate:
In some rare cases, it may also be possible under the particular circumstances of a case for evidence clearly falling within an otherwise valid exception nonetheless not to meet the principled approach’s requirements of necessity and reliability. In such a case, the evidence would have to be excluded. However, I wish to emphasize that these cases will no doubt be unusual, and that the party challenging the admissibility of evidence falling within a traditional exception will bear the burden of showing that the evidence should nevertheless be inadmissible. The trial judge will determine the procedure (whether by voir dire or otherwise) to determine admissibility under the principled approach’s requirements of reasonable necessity and reliability.
[33] This same caveat regarding rare exceptions was expressed in Chang, at paras. 91, 95, 125, 132; in Mapara, at paras. 34-36; and in Simpson, at para. 24. But is important to note that, in these cases, the court emphasized that only rarely will it be necessary to hold a voir dire to consider whether evidence meeting the requirement of the co-conspirators’ exception under Carter is deficient under the principled approach to hearsay. In Mapara, McLachlin C.J.C. stated that:
It … becomes difficult to conclude that evidence falling under the Carter rule would lack the indicia of reliability and necessity required for the admission of hearsay evidence on the principled approach. In all but the most exceptional cases the argument is spent at the point where an exception to the hearsay rule [such as the present intentions exception or the co-conspirators’ exception] is found to comply with the principled approach to the hearsay rule.
[34] The Defence argues that this is one of those rare cases in which evidence falling within a traditional category of exception to the hearsay rule should be ruled inadmissible. In regard to the requirement of necessity, the Defence points to the fact that Mr. Barnett is a compellable witness against the accused, but was not called by the Crown. In regard to the issue of reliability, the Defence points to the fact that we do not have a complete record of the text messages that Mr. Barnett may have sent. I reject the Defence arguments.
[35] In regard to the issue of necessity, it has been held that the criterion of necessity arises in the case of co-conspirators “from the combined effect of the non-compellability of a co-accused declarant, the undesirability of trying alleged co-conspirators separately, and the evidentiary value of contemporaneous declarations made in furtherance of an alleged conspiracy” (Chang, at para. 105; Mapara, at para. 18). These factors were enumerated in the context of a case where the declarant could not be called by the Crown because he was a co-accused.
[36] In Chang, the Court of Appeal was dealing with the situation where two accused charged with the same conspiracy were jointly tried and one of them was a declarant of hearsay statements, impacting the other in the conspiracy. The court was of the view that the necessity requirement for the admission of hearsay evidence was met in these circumstances, as all three factors creating necessity referred to above were present. At the same time, the court recognized that necessity could be grounded in more than just the unavailability of the declarant and could be satisfied where evidence of the same value was unavailable (para. 105). In Chang, the court specifically declined to consider the situation where the declarant is potentially available, as is the case here.
[37] In Simpson, the court did consider the situation where the declarant is available to be called by the Crown. The Court of Appeal reiterated that necessity was based on the combined effect of the three justifications offered by the court in Chang for a finding of necessity in the case of the co-conspirators’ exception to the hearsay rule (paras. 28, 33). The Court of Appeal concluded that the availability of the declarant to be called as a witness, in some cases, could support the “rare exception” referred to in Starr where the requirements of necessity and reliability would not be met, even though the requirements of the co-conspirators’ exception to the hearsay rule had been met (para. 36). At the same time, the court acknowledged that, in some cases, for example, where the statements at issue were direct communications between co-conspirators, where the utterances were contemporaneous declarations made in furtherance of the conspiracy, where there is an accurate record of the declarations, or where the trial judge had found it unlikely that the co-conspirator would be a cooperative witness (none of which factors existed in the Simpson case), there could be reasons to conclude that the evidence was admissible hearsay – even when the declarant was available to testify.
[38] In N.Y., at para. 75, the Court of Appeal clarified that Simpson does not stand for the proposition that the co-conspirators’ exception to the hearsay rule may never apply where the declarant is available to testify. Necessity extends to the nature and quality of the evidence (para. 77). “[I]t is the availability of the evidence, not the availability of the witness, that is of ultimate significance, and that, while co-conspirators may be physically available, their testimony rarely is …” [emphasis in original] [references omitted]. This was again reiterated by the Court of Appeal in R. v. Magno, 2015 ONCA 111, 321 C.C.C. (3d) 554, at para. 60, in a case where the declarant was not only available to testify but actually had testified. The same analysis was adopted in R. v. Alcantara, 2015 ABCA 259, 22 Alta. L.R. (6th) 95, at paras. 114-125, where the Alberta Court of Appeal stated:
Only in old Perry Mason television dramas is there any significant chance that the guilty will confess on the witness stand. In real life, the remote possibility that a conspirator might do that, should not mean that there is no necessity to put into evidence previous declarations of co-conspirators.
[39] In this case, the Crown could have subpoenaed Dylon Barnett to testify at Mr. Tsega’s trial. It did not do so for a variety of reasons. The Crown anticipated that Dylon Barnett, like Kristopher McLellan and Kyle Mullen, would refuse to testify if called as a Crown witness. There is no reason to believe that Mr. Barnett would have been any more willing than Mr. McLellan and Mr. Mullen to be labelled a “rat” in the prison environment where he is currently housed. In fact, there is reason to believe that Mr. Barnett would have been even more reluctant than Mr. McLellan and Mr. Mullen to testify on behalf of the Crown against Mr. Tsega. The evidence is that Mr. Mullen just met Mr. Tsega on the night of the home invasion, and Mr. McLellan, although knowing Mr. Tsega from public school days, was not a close friend of his and had only hung out with him in Toronto on a couple of occasions in the months prior to the home invasion. The evidence is that Mr. Barnett was one of Mr. Tsega’s closest friends and had been so since public school days. Furthermore, there was reason to believe that if Mr. Barnett testified, he would not have been a cooperative witness for the Crown. He is currently serving a life sentence for his role in the murder of Michael Swan and, in all likelihood, his murder conviction is under appeal. As well, considering the nature of Mr. Barnett’s crime, he would be considered an unsavoury witness. His evidence would have warranted a Vetrovec warning and an elevated level of suspicion. These factors led me to conclude that the likely value of any oral evidence provided by Mr. Barnett would have been low, particularly when compared with clear, straight-forward, text messages that were spontaneous and contemporaneous to the events in question. In my view, those text messages were the “best evidence” relating to the discrete communications they referred to. It would be unlikely that, six years after the events in question, Mr. Barnett could have offered oral testify that would have been more meaningful than the actual communications themselves. These have been held to be appropriate considerations in cases of this nature (see N.Y., at paras. 91-96).
[40] My review of R. v. Cater and R. v. Lam in R. v. Tsega, 2016 ONSC 3717, at paras. 9-10, is pertinent to this analysis:
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 the 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), 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).
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.
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.
[41] The Defence argues that, whereas intercepted telephone communications capture the entire conversation, that cannot be said of recovered text messages. Individual text messages are abbreviated in format, often in code, and do not purport to capture the entire written conversation between individuals. Those are valid concerns. However, the two text messages in issue here – one being a question and the second being a request or demand, do capture discrete thoughts, are clear, and are not in code.
[42] In Chang, in regard to the issue of reliability, the Court of Appeal found that guarantees of trustworthiness of the declarant’s statement come from both the circumstances in which the declarations are made and the use of the Carter approach in determining the admissibility of the statements. This was reiterated by McLachlin J. in Mapara, at paras. 22-27, 34. There are three hurdles that the statements of co-conspirators must overcome before being ruled admissible. The third is that the statements must be made in furtherance of the conspiracy and “have the reliability-enhancing qualities of spontaneity and contemporaneity to the events to which they relate” (Chang, at para. 122). The courts in Chang and Mapara concluded that, except in rare circumstances, evidence admitted under the Carter approach meets the requirement of threshold reliability. For the reasons provided above explaining why the text messages themselves are the best evidence of the communications in this case, I reject the Defence argument that those messages do not meet the standard of threshold reliability.
Disposition
[43] For these reasons, I ruled the first and fourth text messages in issue not admissible for the truth of their contents, and the second and third text messages in issue admissible for the truth of their contents.
Aitken J.
Released: June 8, 2016
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 #4 – TEXT MESSAGES Aitken J. Released: June 8, 2016