Court File and Parties
COURT FILE NO.: 0026/18 DATE: 20181107 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. KEVIN HANSE
BEFORE: MOLLOY J.
COUNSEL: S. Andersen, for the Crown D. Parry, for the Defendant
HEARD: November 2, 2018
Endorsement
Introduction
[1] Kevin Hanse was charged with: (1) attempting to obtain possession of a firearm; and (2) transferring or offering to transfer ammunition. The Crown’s case was based almost entirely of wiretap interceptions of Mr. Hanse’s cellphone. The legality of the interceptions was not challenged, and it was conceded that the phone belonged to Mr. Hanse and that the speaker identified by him on the telephone calls was, in fact, him. Mr. Hanse had numerous calls in which there were discussions relating to his obtaining a “car” and “gas” for that “car.” Sometimes the car was referred to as a “whip.” In one set of text exchanges with a person identified only as “T”, there were messages about getting a car. The person using Mr. Hanse’s phone texted, “Find car and I will buy it for us to drive.” A couple of days later, Mr. Hanse’s phone texted, “Can he get to [likely meaning “two”] cars”, to which T answered, “Two of the same one snub and one isn’t.”
[2] The Crown’s theory was that “car” and “whip” were used throughout as code words for firearm, and that “gas” and “containers of gas” and “lug nuts” referred to ammunition. The Crown called an expert firearms analyst who testified that, in the context of firearms, “snub” is a term referring to a snub-nosed revolver, which has a very short barrel.
[3] After the close of the Crown’s case, the defence called as a witness Keiisha Pillai, who is an articling student employed in the offices of defence counsel. Ms. Pillai testified that she had done an internet Google search of the phrase “snub nose kush,” which led her to a website named “weedmaps.com” from which she downloaded and printed a page of information describing “AAAA OG Snub Nose Kush” as a form of marijuana. The Crown did not initially object to this page being marked as an exhibit at trial.
[4] Next Ms. Pillai was asked if she had performed a similar search for the term “gas kush.” At this point, the Crown objected. I excluded the jury and conducted a voir dire as to the admissibility of this evidence. After hearing the evidence on the voir dire and submissions from counsel I ruled the evidence inadmissible, advising that I would provide reasons at a later date. I instructed the jury in my closing submissions that this evidence was inadmissible hearsay, the accuracy of which could not be adequately tested at trial, and that they should disregard it entirely.
[5] My reasons are set out below.
The Evidence
[6] On the voir dire, I heard brief evidence as to the nature of the evidence to be tendered through this witness. Ms. Pillai has no particular expertise. She simply did a Google search of words she was asked to search and printed the results. One was a single page from the website weedmaps.com. Based on browsing through the website, Ms. Pillai offered her opinion that this was a California-based dispensary. She had no first-hand knowledge of the website or the product. The information printed from the site described Snub Nose Kush as one of the most potent strains of marijuana available.
[7] The defence also proposed to tender information printed from the website “www.wikileaf.com” under the heading “gas.” Ms. Pillai had no first-hand knowledge of this website or product. At the top of the first page under the word “Gas” the reader is invited to “be the first to review.” There are 2 ½ pages describing the product and its effects on the user. According to this information, “gas” can be an informal term used to describe quality marijuana and is also the name of “at least one proper strain” emanating from a breeder in San Jose.
Analysis
[8] Ms. Pillai is not, and was not tendered as, an expert witness with any knowledge of terms used for strains of marijuana. She had no information to provide as to the source or accuracy of the information tendered. Calling her as a witness to file these documents is no different from simply filing the documents themselves.
[9] The question, then, is whether the documents can simply be filed as evidence that somewhere on the internet these terms have been used by somebody in reference to marijuana. I have therefore considered whether this information fits within a category that would qualify for judicial notice without further proof.
[10] In R. v. Find, the Supreme Court of Canada defined the two possible situations in which a court can take judicial notice of facts, as follows:
In this case, the appellant relies heavily on proof by judicial notice. Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy: R. v. Potts (1982), 66 C.C.C. (2d) 219 (Ont. C.A.); J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 1055.
[11] It cannot be said that the facts the defence sought to elicit in this manner are so notorious or generally accepted as to be uncontroversial and beyond debate. This is a specialized field about which the ordinary person could not be expected to be well-versed. The words in question are not commonly known slang words for marijuana. One might, for example, take judicial notice of the fact that “weed” is a slang word for marijuana, but “snub” and “gas” are not words commonly associated with this drug.
[12] If the evidence is admissible at all, it can only be under the second heading: i.e. that it is capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. I accept that Google searches are easily conducted and the websites in question are easily accessible. However, this evidence fails to meet the “accurate demonstration” requirement, as well as the requirement that the sources be of “indisputable accuracy.” I have no information as to who created the document or when, and there is no basis for the jury to determine whether they can or cannot rely upon it as accurate. I know nothing of either weedmaps.com or wikileaf.com, but they certainly cannot be said to be sources of “indisputable accuracy.”
[13] In R. v. Spence, Binnie J. referred with approval to the criteria for judicial notice set out in Find, noting that this formulation had been originally put forward by Professor E.M. Morgan in “Judicial Notice” (1943-1944) Harv. L. Rev. 296, referring to thereafter as the “Morgan criteria.” The Court in Spence was dealing with whether judicial notice could be taken of the possibility of racial prejudice in jurors based on the accused being black and the complainant being East Indian, and also the fact that jurors of East Indian decent could be more partial or sympathetic to the East Indian complainant. The Court considered whether the Morgan criteria should be relaxed in this type of situation to allow the trial judge to take judicial notice of “social facts.” Binnie J., writing for the entire Court, accepted there was a distinction between “social facts” and “legislative facts” which have relevance to the reasoning process and involve broad policy considerations. However, he rejected the suggestion that a court does not need to scrutinize the trustworthiness of facts sought to be judicially noted. However, he did accept that the “permissible scope for judicial notice should vary according to the nature of the issue under consideration.”
[14] However, the Supreme Court was very clear that this relaxation of the Morgan criteria did not apply to adjudicative facts. Binnie J. wrote:
… I believe a review of our jurisprudence suggests that the Court will start with the Morgan criteria, whatever may be the type of “fact” that is sought to be judicially noticed. The Morgan criteria represent the gold standard and, if satisfied, the “fact” will be judicially noticed, and that is the end of the matter.
If the Morgan criteria are not satisfied, and the fact is “adjudicative” in nature, the fact will not be judicially recognized, and that too is the end of the matter.
[15] In the case before me, the evidence addresses the meaning of words that appear in the intercepted communications, which are critical to the case against the accused. They are clearly adjudicative facts and the Morgan criteria therefore apply.
[16] Defence counsel before me argued that “trial fairness trumps technicalities” as stated by Binnie J. at para. 76 of the Spence decision. As a general proposition, such a statement is readily accepted. However, I note that in Spence, the Supreme Court did not interfere with the trial judge’s finding that he could not take judicial notice of the facts urged by the defence, and held that this did not undermine trial fairness. In the situation before me, whether judicial notice can be taken of the facts asserted is not a “technicality.” It is a requirement that evidence put before the jury be accurate and reliable, or at the very least capable of being tested before the jury. That is not the case here. There is no reason at all to believe that this is accurate information merely because it appears on some unknown website somewhere. Indeed, one fact you might be permitted to take judicial notice of is that not everything you read on the internet is true.
[17] The defence also asserts that the facts are tendered merely to show that they exist. Again, showing that some website somewhere uses this term does not establish any fact that is useful to the jury’s analysis. The term on the website may have just been invented days or weeks before, long before the intercepted communications took place in 2016. There is simply no way of knowing. The geographic reach of the information is also completely unknown. There is nothing to show that such terms are known at all in Canada, much less specifically in Toronto.
[18] I also do not agree that some leeway should be given because expert testimony can be expensive and the resources available to the defence are not limitless. That argument was also raised, and rejected, in Spence. Testimony about terms used for marijuana on the street level in Toronto would not be hard to come by and would be infinitely more reliable than information pulled randomly off the internet. There might also be reliable sources of information about the subject on the internet itself, depending on the website. For example, if the Province of Ontario’s website listed “gas” or “snub” as forms of marijuana available for sale, that would be an entirely different issue.
[19] I have considered the very interesting article by Pilet and Ledgerwood entitled “Judicial Notice and the Internet” and many of the cases to which the authors refer. I agree readily with the general proposition that there are many sources available on the internet that provide accurate and reliable information and are regarded to be sources of indisputable accuracy. Cases where judicial notice have been taken of things found on the internet have typically involved aerial photos, Google Maps, Google Earth and online dictionaries. Just because something is found on the internet does not make it unreliable – the nature of the source must be considered. The same can be said of text books – just because somebody gets a book published does not make it a source of indisputable accuracy. I would distinguish the numerous cases referred to on that basis. They are quite simply not like the case before me.
[20] Finally, the defence argued that I ought to admit the evidence in order to be even-handed as between the Crown and the defence. The Crown had called D.C. Kristine McLane to provide expert evidence about firearms and ammunition and the technical language used to describe them. In the course of her evidence she also testified about how such items are sold and the typical price for them if purchased legally. Defence counsel did not object. D.C. McLane testified that she looked on the internet for the prices listed by Remington and Winchester and provided those prices to the court. Defence counsel did not object. If he had objected, there might be an argument about whether the witness was qualified to provide such information by virtue of her experience or whether the price for legally supplied guns and ammunition is relevant to the issue before me, which is the illegal trafficking of firearms and ammunition. There might also be an answer that Remington and Winchester are established well-known manufacturers and distributors and that their websites are reliable sources for the actual prices that they charge the public. None of this was raised. The mere fact that this evidence went in without objection from the defence does not pave the way for the defence to file the subject information it downloaded from the internet from websites of a very different nature.
[21] The two articles that the defence seeks to file are inadmissible hearsay. The evidence does not come close to meeting the criteria for admission on either the necessity nor reliability criteria. The evidence is wholly unreliable and cannot be challenged in a meaningful way by the Crown. It is not proper evidence to be before the jury.
[22] Accordingly, I ruled the evidence inadmissible.
[23] I note, as an aside, that immediately after this ruling, the defence called a witness who had first-hand knowledge of terms used to describe marijuana, through his business trafficking in marijuana on the streets of Toronto over a period of years, including in conjunction with the accused in this case. The admissibility of that evidence was not challenged.