COURT FILE NO.: Crim J(P) 1156/15 DATE: 20170228 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – JACQUELINE SIMONE Defendant

COUNSEL: S. Aujla for the Crown D. Paradkar and C. Tarach for the Defendant

HEARD: February 17, 21 and 22, 2017

MID-TRIAL RULINGS

Ricchetti J.:

OVERVIEW

[1] Ms. Simone was charged as follows:

a) Attempting to export cocaine on November 7, 2013;

b) Possession of cocaine for the purpose of exporting on November 7, 2013; and

c) Conspiring with Chrestopher Anthony Barrett, Sami Medouini, Sam Sara Bro, Lil Bro, Sedum Asimovsky and others to export cocaine between September 23, 2013 and November 7, 2013.

[2] During the course of the trial, the Defence made the following applications for a ruling:

a) Excluding telephone records retrieved from the cell phone of Chrestopher Barrett; and

b) preventing the testimony of Officer Ray Woodford.

[3] Both applications were dismissed. Counsel were advised that I would provide written reasons at a later date. These are those reasons.

BACKGROUND

[4] The following is the evidence called at the trial:

November 1, 2013

• On November 1, 2013, Mr. Barrett attended Gill Travel. He was alone.
• After Mr. Barrett left, the RCMP went into the travel agency and discovered that Mr. Barrett had booked a flight for Ms. Jacqueline Simone (and another woman) on Air Canada for November 7, 2013 in the early morning to London England.
• The telephone number contact on the itinerary for Ms. Simone was 647 680 5289 – this was Mr. Medouini’s telephone number.

November 4, 2013

• At 1:22 Mr. Barrett was parked. Another car pulled in beside his car. This was a silver Honda.
• The trunks of both cars were opened. Officer Galarneau testified he saw the driver of the silver Honda give a black or dark blue garbage bag to Mr. Barrett who put it in his trunk.
• The men shook hands. Both cars then left.

November 6, 2013

• On November 6, 2013 Mr. Barrett met Mr. Sami Medouini who was driving the same silver Honda that was parked beside Mr. Barrett’s car on November 4, 2013. Officer Doyle testified Mr. Medouini was the same person from the silver Honda on November 4, 2013 observed meeting Mr. Barrett.
• Mr. Barrett and Mr. Medouini spoke to each other for a few minutes
• During this meeting, Ms. Simone was in the passenger seat of Mr. Medouini’s car smoking a cigarette.
• An IBM book was found on Mr. Barrett during the execution of a search warrant late on November 7, 2013. The IBM book shows that Mr. Barrett knew a Sami Medouini in 2011.

November 7, 2013

• On November 7, 2013 at approximately 4:52 Mr. Barrett was seen putting an unknown item in the trunk of his car. Mr. Barrett left his home in Ajax.
• He drove to a Tim Horton’s, in the Steeles and Dufferin area, arriving at approximately 5:27 a.m.
• Ms. Simone was seen walking across the front of the Tim Horton’s, not carrying a bag, and after a brief conversation, got into Mr. Barrett’s car at 5:34 a.m. Mr. Barrett did not open his trunk while at the Tim Horton’s.
• Mr. Barrett drove to the Toronto Pearson airport.
• After Mr. Barrett parked his car, he and Ms. Simone got out of the car. Mr. Barrett retrieved a black suitcase out of the trunk. Mr. Barrett pulled the suitcase into the terminal. Both Ms. Simone and Mr. Barrett went to an Air Canada kiosk.
• Ms. Simone’s hair was down at this time. She was wearing black tights, green jacket and boots with pom poms.
• Ms. Simone was seen on video carrying some kind of gym bag. Mr. Barrett and Ms. Simone got into the line to check the suitcase. Mr. Barrett continued to pull the suitcase until the front of the line. When it was time for Ms. Simone to check in the suitcase, Mr. Barrett handed the suitcase to Ms. Simone. Ms. Simone proceeds to put the suitcase on the weigh scale and checks the suitcase in at the counter.
• As she left the check in area, she waved at Mr. Barrett and proceeded into the secure area (i.e. through the security check).
• After speaking on the phone, Ms. Simone then proceeded to a washroom, changed her black tights into red jogging pants and changed the way she had her hair by pulling her hair up.
• Ms. Simone began walking away from the gate.
• Surveillance then lost.
• At 9:23 a.m., Ms. Simone left the airport by taxi cab.
• The RCMP retrieved the suitcase Ms. Simone had checked in. The RCMP discovered 9 bars of cocaine weighing almost 9 kilograms in the suitcase.
• The RCMP called Ms. Simone and negotiated her surrender. Ms. Simone was arrested at approximately a half hour later. A cell phone was retrieved from Ms. Simone. The telephone number is 647 296 9485. The contents of Ms. Simone's cell phone were extracted. A number of messages to and from Ms. Simone were found to be deleted from her cell phone but were retrieved by the RCMP.
• Later that day, the RCMP showed Ms. Simone 12 photographs. Ms. Simone identified one as the man she had seen that morning called “Big”.
• Ms. Simone when asked where she was living, gave her address in Meadowvale and that her roommate was Sara Medouini.
• Later that day, the RCMP arrested Mr. Barrett. The RCMP searched Mr. Barrett’s vehicle and found:
  • The flight itinerary for Ms. Simone from Gill Travel. The itinerary was dated November 1, 2013. The cost was $950.
  • A key chain with an engraving of Biggz.
• The police also retrieved a cell phone from Mr. Barrett. The police extracted the calls and messages to and from Mr. Barrett's cell phone.
• Mr. Barrett was subsequently arrested and charged.
• Mr. Medouini was subsequently arrested and charged.

DEFENCE MOTION TO EXCLUDE RECORDS FROM MR. BARRETT'S CELL PHONE

[5] Ms. Simone is charged with conspiring with Mr. Barrett, Mr. Medouini and other persons to export cocaine.

[6] The Crown acknowledges that the evidence from Mr. Barrett's phone is hearsay evidence (none of the messages or phone calls are to or from Ms. Simone). The Crown submits that this evidence is properly admissible under the co-conspiracy exception to the hearsay rule.

[7] The Defence submits that this is one of those "rare cases" described in R. v. Mapara, 2005 SCC 23:

15 The principled approach to the admission of hearsay evidence which has emerged in this Court over the past two decades attempts to introduce a measure of flexibility into the hearsay rule to avoid these negative outcomes. Based on the Starr decision, the following framework emerges for considering the admissibility of hearsay evidence:

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.

[8] In R. v. Kler, 2017 ONCA 64, the Court of Appeal described the co-conspiracy hearsay exception as follows:

69 Despite the ascendency of the principled approach to the admissibility of hearsay, the traditional or category exceptions remain presumptively in place, including the co-conspirators' exception to the hearsay rule: Mapara, at para. 15.

70 A hearsay exception, such as the co-conspirators' exception, can be challenged to determine whether it is supported by the indicia of necessity and reliability, required by the principled approach. If necessary, the traditional exception may be modified to bring it in line with the principled approach: Mapara, at para. 15.

74 It does not always follow, however, that evidence that falls within the co-conspirators' exception (which we have seen meets the requirements of the principled approach) will be received at trial. The indicia of necessity and reliability, while generally satisfied under the exception and the regime in Carter, may be lacking in the particular circumstances of the case: Mapara, at para. 15.

75 Two brief points should be made about the specific challenge just mentioned. First, the Mapara court characterized the exception as available in "rare cases". And second, the onus falls upon the party seeking exclusion to establish that the evidence, admissible under the co-conspirators' exception, does not meet the requirements of necessity and reliability and, thus, should be excluded: Mapara, at paras. 15, 37; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 (S.C.C.), at para. 214.

79 A final point. It is difficult to conclude that evidence falling under the Carter rule would lack the indicia of necessity and reliability required for the admission of hearsay under the principled approach. Apart from the most exceptional cases, the argument is exhausted where the traditional exception is found to be compliant with the principled approach: Mapara, at para. 34.

92 As a matter of general principle, the co-conspirators' exception meets the necessity and reliability requirements of the principled approach. The Supreme Court of Canada said so in Mapara.

93 The Mapara court acknowledged that there may be "rare cases" in which evidence admissible under the co-conspirators' exception may nonetheless fall short of satisfying the necessity and reliability touchstones of the principled approach. Here, the appellant says the necessity requirement was not met and the declarant was unreliable.

IS THIS A “RARE CASE”?

[9] As set out in R. v. Chang, [2003] O.J. No. 1076 (C.A.) the starting position is that evidence admissible under the Carter process meets both the requirements of necessity and reliability. See para. 111 and para. 124 Chang. The onus is on the Defence to establish that this is a rare case.

[10] There was no further evidence led by the Defence on this issue. Counsel relied on the evidence to date at the trial and the cell phone records of Ms. Simone and Mr. Barrett.

[11] There is considerable evidence capable of establishing that Mr. Barrett was a party to the agreement to export cocaine such as: he bought the airline ticket for Ms. Simone; it was his suitcase; he carried the suitcase until Ms. Simone had to check the suitcase in; the suitcase contained cocaine; the records from his cell phone in most cases relate to the preparations for the export and dealings on the day of the export.

[12] Similarly, there is considerable evidence capable of establishing that Sami Medouini was also a party to the agreement to export cocaine, such as: he advised Mr. Barrett had had a “girl”; he met with Mr. Barrett when Ms. Simone was present and on other occasions just before the flight, he passed over the garbage bag which Mr. Barrett had requested in his cell phone message for the "girl's stuff"; he told Mr. Barrett the girl's name was "Jacqueline Simone". In addition, there are a number of messages and calls from and to Ms. Simone from and to Sami Medouini where the contents are indicative of cooperation with respect arrangements leading up to the attempted exportation of cocaine.

[13] It is clear that most of Mr. Barrett’s cell phone records show communications between these two persons. As such, this evidence is capable of being considered by the jury as evidence in furtherance of the conspiracy to export cocaine.

[14] There are other messages and calls on Mr. Barrett’s cell phone. These are to or from a phone with the number 647-409-7949. However, all of these messages and calls are on November 7, 2013 and all appear to relate to the meeting with Ms. Simone before Mr. Barrett met her to go to the airport and while Ms. Simone was at the airport. Clearly, these are also capable of being considered by the jury as evidence in furtherance of the conspiracy to export cocaine.

[15] The first issue raised by the Defence is that Mr. Barrett is not testifying and the Crown has not established he is not available to testify. As a result, the Defence submits that necessity to admit this hearsay evidence is not made out.

[16] This submission fails to recognize that the onus is on the Defence to establish this is a rare case. The availability of Mr. Barrett to testify or not to testify would be speculation in the absence of any evidence.

[17] In any event, the fact Mr. Barrett might or might not be available for cross-examination does not mean that necessity has not been made out. The theoretical availability is not an insurmountable impediment to the application of the co-conspirator exception to hearsay. See R. v. N.Y., 2012 ONCA 745 at para 79.

[18] The statements and actions set out in Mr. Barrett’s cell phone records sought to be introduced in this case were contemporaneously made during the ongoing alleged conspiracy to export cocaine and are found on Mr. Barrett’s cell phone.

[19] It is not clear to this court, what else Mr. Barrett could testify about regarding these recorded contemporaneous records? The Defence suggests that there could be other conspiracies. This suggestion was a bald assertion as there is no evidence there was another conspiracy relating to exporting cocaine happening at the same time and it is clear that the proposed cell phone records relate to this attempted exportation of cocaine.

[20] The Defence points to incoming communications from 1-647-409-7949 to Mr. Barrett’s cell phone. The Defence submits that the jury will be confused because the messages appear to be sent from Ms. Simone but there is no evidence Ms. Simone used a 7949 cell phone. I agree that there is no evidence linking Ms. Simone to 7949 as being the sender. In my view, there is sufficient evidence to infer that the calls and messages from the 7949 cell phone were "pass through messages" from Ms. Simone to the user of the 7949 phone and from that phone number to Mr. Barrett. The evidence does show that Ms. Simone was calling and sending messages to the 7949 telephone number. This cell phone number was identified as "Lil Bro". However, the Crown accurately points out the timing and information in the messages strongly suggest a connection between Ms. Simone, the person with the 7949 cell phone and Mr. Barrett's cell phone including such thing as "Hey its Jacqueline" to Mr. Barrett's cell phone and "I'm here at Timmy" (which is where Ms. Simone was picked up by Mr. Barrett on the morning of November 7, 2013; "yeah about to board". In my view, this evidence is capable of establishing that the user of the 7949 cell phone was working with Ms. Simone regarding the agreement to export the cocaine. I reject the Defence assertion that allowing these text messages from the 7949 cell phone will confuse or confound the jury to believing it is Ms. Simone calling or texting - all the jury need do is see that Ms. Simone is calling, sending messages and receiving messages/calls from the 7949 cell phone to conclude these are different persons using Ms. Simone's cell phone and the 7949 cell phone.

[21] The submission that Mr. Barrett’s evidence is necessary to explain this is rejected.

[22] The Defence also submits that the lack of reliability also arises because we don't know who sent some of the messages to Mr. Barrett. This submission has no merit. It is not necessary for the jury to know the name of an unindicted co-conspirator, provided that the trier of fact is satisfied that the person sending the message is probably a member of the conspiracy, that his or her statements or actions were while the conspiracy was ongoing and were in furtherance of the conspiracy to export cocaine. In this case, the nature of the evidence is contemporaneous of the events leading up to the purchase of the ticket for Ms. Simone, the arrangements leading to the flight and the morning of the flight itself. The jury can also look to the surveillance evidence which was consistent with what is discussed in the message in many cases.

[23] In Mapara, at issue was the evidence of Wasfi as to what he had been told by Binahmad which implicated Mapara. The Defence argued this was double hearsay. There were considerable difficulties with Wasfi's evidence. Yet, these considerable difficulties did not rise to the level of a "rare" case because of necessity or reliability issues:

35 Is this such a case? Certainly there are frailties in the evidence of the co-conspirator. Wasfi arguably had a motive to lie, namely a desire to falsely implicate the appellant, so Binahmad would think the appellant’s money would be used in the killing. According to the appellant, Wasfi had his own reasons to have Chand killed, namely to obtain vengeance for the alleged rape of his girlfriend and to eliminate a debt. He implicated the appellant because Binahmad knew he himself could not finance the contract killing. Finally, the evidence showed that Wasfi was in jail at the time when Binahmad testified that the discussion took place.

36 These concerns, with the exception of the discrepancy as to the date of the conversation, do not go beyond concerns already addressed in the analysis of whether the co-conspirators’ exception complies with the principled approach to the hearsay rule. They are characteristic of any conspiracy. Any weaknesses go to the ultimate weight of the evidence, which is for the jury to decide. Nor does Binahmad’s error on when the conversation took place merit rejection of the evidence. This problem is one of ultimate reliability that the jury can decide. The trial judge reminded the jury in his charge about this difficulty, in the context of highlighting the defence position that both Wasfi and Binahmad were completely unreliable characters.

37 It follows that the appellant has not established that the evidence to which he objects constitutes one of those “rare cases” where evidence falling within a valid exception to the hearsay rule fails, in the peculiar circumstances of the case, to satisfy the indicia of necessity and reliability necessary for the admission of hearsay evidence.

[24] This court is not satisfied that Mr. Barrett’s failure to testify supports this being a “rare case”.

[25] There is no dispute that there was an agreement between two or more persons to export cocaine. Therefore, the real issue is whether the communications set out in Mr. Barrett's cell phone records are capable of being in furtherance of the conspiracy. The ultimate reliability of these messages is up to the jury. See R. v. Bogiatzis, 2010 ONCA 902 at para 42.

[26] Without repeating what this court said above, there is considerable evidence that the messages are in furtherance of the agreement to export cocaine - "Sami" texted Mr. Barrett that he had "one girl" just days before November 1, 2013, the day Mr. Barrett bought the ticket for Ms. Simone; "Sami" identifies the person as Jacqueline Simone, a date of birth and an address; Mr. Barrett told Sami to have the "girl" get her stuff together in a garbage bag (the police subsequently saw a garbage bag being transferred from Sami to Mr. Barrett); Mr. Barrett picked up Ms. Simone on November 7, 2013 and she took Mr. Barrett's suitcase and checked it in. There can be little doubt that the communications from and to “Sami” relate to the alleged conspiracy and are capable of being considered as actions in furtherance of the conspiracy. As set out above, the communications with the 7949 phone number also clearly relate to the activities on the morning of November 7, 2013 relating to the attempted exporting of cocaine.

CONCLUSION

[27] Given the contemporaneous nature of the records, the similar related contents of the messages, the timing of the messages, the phone records are capable of establishing that the persons were probably members of the conspiracy and that what they were doing was in furtherance of the conspiracy.

[28] The Defence has failed to show this is one of those rare cases "because the required indicia of necessity and reliability are lacking in the particular circumstances of the case". See Mapara para 34.

DEFENCE APPLICATION TO EXCLUDE THE EVIDENCE OF OFFICER WOODFORD

[29] Additional background is necessary.

[30] The Defence counsel had conceded as part of the Agreed Statement of Facts that Mr. Barrett's and Ms. Simone's cell phone had been seized and that "Data from these seized phones was extracted by a specialized unit of the RCMP under search warrants".

[31] The Defence agreed to the phone records from Ms. Simone's cell phone, including the calls and messages retrieved by the RCMP, to be marked as Exhibit 27 without further proof. The final column on Exhibit 27 had a heading "Deleted" and each entry was marked as "yes" or left blank.

[32] The Crown then sought to call Officer Woodford, the police officer who retrieved the deleted messages (i.e. those marked with a "yes" in the column). Officer Woodford was to give evidence that, when he received Ms. Simone's cell phone, a number of messages and calls had been deleted. The deleted messages and calls were retrieved by him. He would testify that those are the messages and calls marked with a "yes" on Exhibit 27.

[33] The Crown seeks to show this as post-offence conduct of Ms. Simone consistent with her knowledge that she was attempting to export cocaine and a party to the conspiracy.

[34] The Defence objected to calling Officer Woodford on the basis:

a) while the Defence has had his C.V. for quite some time, a formal expert’s report had not been delivered by the Crown, the Defence submits that Officer Woodford's evidence is opinion evidence and should not be permitted; and

b) this post offence conduct is highly prejudicial and not probative.

EXPERT EVIDENCE?

[35] The Defence submits that Officer Woodford's proposed evidence is expert opinion evidence.

[36] This court is not persuaded that Officer Woodford's proposed evidence is opinion evidence. His proposed evidence is factual: he received the cell phone, he "undeleted" the messages and will describe what was on the cell phone.

[37] Officer Woodford may have used his experience and expertise to retrieve the messages, but that is not expert opinion evidence. Assuming no search issues arose, any officer could testify as to what was on the cell phone after they turned on the power, went to the messages, scrolled back in time and described the messages he or she saw on the phone. Similarly, a witness who took a photograph with an instant camera may not know how the photograph was generated but can testify that the photograph was taken by him or her.

[38] It is also important to note that the Defence has had Officer Woodford's C.V. for some time. The Defence knew he was to be called. The Defence agreed the extraction of messages and call information from Ms. Simone's cell phone in the Agreed Statement of Facts. The Defence agreed to Exhibit 27 which specifically shows that certain messages and telephone calls had been deleted from Ms. Simone’s cell phone. It is simply too late to prevent Officer Woodford from testifying that the “deleted” “yes” means that the records were “undeleted” from Ms. Simone’s cell phone by him.

PREJUDICIAL AND PROBATIVE

[39] The Defence submits this evidence is not probative in the circumstances of this case. The Defence submits there is no evidence to show why or when the messages were deleted.

[40] This court rejects the Defence submission. The evidence establishes that the messages relate to the alleged exporting of cocaine. The last deleted message appears around the approximate time the police contact Ms. Simone to present herself for her arrest. The police arrest Ms. Simone about one half hour later. Ms. Simone’s seized phone was seized, examined and a number of messages on Ms. Simone’s cell phone were found to be deleted.

[41] There appears to be a limited time for deleting the messages relating to the events leading up to and on November 7, 2013. The jury could draw the inference that Ms. Simone deleted the messages after she left the airport or even after she received a phone call from Officer Doyle seeking her to meet for her arrest because the messages show Ms. Simone’s knowledge and involvement in the matters at issue.

[42] It is not the role of this court to decide whether that is what a jury will conclude from the evidence. That is for the jury to assess. The issues for this court are: is the evidence probative? is the evidence prejudicial? balancing probative and prejudice, is the evidence admissible?

[43] This evidence is potentially probative to the jury as it might be circumstantial evidence of Ms. Simone’s knowledge as to what was in the suitcase when she checked it in at the airline and to hide her involvement from the police. This evidence is another piece of circumstantial evidence as to Ms. Simone's knowledge as to the contents of the suitcase when she checked it in. Further, this could also be circumstantial evidence that Ms. Simone was part of the conspiracy and when the conspiracy fell apart, she wanted to eliminate evidence regarding her role in the conspiracy.

[44] While the Defence suggests that this evidence is highly prejudicial, the Defence does not suggest how this evidence is prejudicial in the legal sense, particularly if a mid-trial and final instruction is given regarding the jury’s use of post offence conduct. More specifically, the Defence did not suggest how the jury could misuse the evidence of deleted messages because of either moral or reasoning or any other improper use of this evidence.

[45] This court does not find this proposed evidence (to explain that some messages had been deleted and were retrieved) to be prejudicial in the legal sense.

[46] It is also important to note that the evidence certain messages were deleted from Ms. Simone’s cell phone was admitted by the Defence by virtue of Exhibit 27. Without Officer Woodford's brief evidence, there would be confusion and speculation by the jury regarding what the last column in Exhibit 27 meant.

[47] In conclusion, I am satisfied that Officer Woodford's proposed evidence is admissible.

Ricchetti J.

Released: February 28, 2017

COURT FILE NO.: Crim J(P) 1156/15 DATE: 20170228 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JACQUELINE SIMONE MID TRIAL RULINGS Ricchetti J. Released: February 28, 2017