COURT FILE NO.: CRIMJ(P)1857/19
DATE: 20211001
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
VILME, REYES, PALLOTTA, & EL-KHOURY
Defendant
COUNSEL:
E. Taylor, for the Crown
W. Thompson, for the Defendants
HEARD: September 22, 23, & 24, 2021
RESTRICTION ON PUBLICATION
Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
Ruling Re: Evidence of tracing device
Baltman J.
(Delivered Orally)
[1] The accused have brought a motion to exclude evidence relating to a tracking device found on the deceased’s vehicle. I am giving brief oral reasons at this time, which I may expand upon at a later date, if necessary.
[2] The four accused are charged with first degree murder. The victim was a senior member of the Hells Angels motorcycle club. Shortly after 11:00 a.m. on March 11, 2019, he was gunned down by two assailants as he was leaving the HUF Gym and approaching the Jeep he had parked in the lot outside the gym. The two men fled in a blue Honda, driven by a third man.
[3] At the time of the shooting, the deceased was under surveillance by the OPP in Project Hobart, as a suspected debt collector for an illegal gambling operation run by the Hells Angels. OPP officers stationed outside the gym followed the Honda to a nearby second location, where a fourth man was waiting in a black Sante Fe. The Honda was set on fire and all four men left in the Sante Fe.
[4] The accused seek to exclude evidence regarding a Trackimo GPS device located on the Jeep associated with the deceased. The police did not find the tracking device in their initial search of the Jeep, which was conducted pursuant to a warrant. It was later discovered in the undercarriage by a mechanic conducting a safety check for Matthew Letang, who purchased the vehicle after the police had completed their search. Following the issuance of a production order, Trackimo disclosed that the device was registered to an email address with the name “Ryan Golfman”.
[5] The accused’s primary objection is that there is little, if any, evidence connecting them to the Trackimo device. In particular, they maintain there is no evidence that they had anything to do with the installation or use of the device.
[6] I disagree. On March 13, 2019, two of the accused were arrested in Montreal in the same Sante Fe observed by the Project Hobart surveillance team on March 11, 2019. Police found two cellphones in the Sante Fe, and the forensic evidence indicates that the Trackimo app had previously been installed on both phones. Between February 25, 2019 and February 28, 2019, the tracking device was at or near the deceased’s house 17 times out of the 35 times that the device was checked. From March 8, 2019 until March 11, 2019 the tracking device was at or near the deceased’s house 63 times out of the 102 times the device was checked. On the morning of March 11, 2019, the tracking device was at or near the HUF Gym all three times that the device was checked, and there are no GPS locations from the device thereafter.
[7] Although those facts are not, on their own, conclusive that it was the accused who were tracking the deceased, they provide some evidence from which a jury could infer that the device was used by or benefitted the accused in locating the victim. In particular, the presence of the remnants of the Trackimo app on the phones found in proximity to two of the accused when they were arrested provides some linkage.
[8] The accused also assert that because the battery requires recharging every 4-5 days, and there is no evidence that any of them were in the GTA that many days before the shooting, it follows they had nothing to do with the device. That the accused may not personally have been present in the GTA at points where the battery needed to be recharged is not conclusive. All four accused originate from Montreal. Assuming the Crown is correct that they are the ones who actually carried out the shooting, it is unlikely they planned and organized this entire venture on their own.
[9] As for the argument that the Jeep itself cannot be reliably linked to the deceased, I note that while it was not registered in his name, the OPP observed him driving it on multiple occasions in the weeks preceding the shooting, and police later found multiple documents in his name inside the Jeep, including several parking tickets.
[10] Further, while the police did not find the device when they initially examined the Jeep, at that point they were only scrutinizing the inside of the vehicle for items related to the shooting, such as bullets and DNA. They did not search the undercarriage, which is where the tracing device – a small black box, two inches square - was ultimately found.
[11] I add that the Crown is only seeking to adduce this evidence on the issue of planning and deliberation, and the accused, beyond denying their individual involvement, have not conceded that this murder was planned and deliberated by anyone. Moreover, the suggestion by defence counsel that it may well have been the OPP who installed the device has been credibly refuted by Crown counsel. Finally, for the evidence to be admissible the Crown does not have to establish its link to the accused beyond a reasonable doubt; it merely has to demonstrate that it is a piece of evidence from which, when combined with all the other evidence, one can reasonably infer that that link exists.
[12] The evidence is therefore admissible, with one caveat. A portion of the GPS data comes from locations in Montreal and dates back to December 2018 and January 2019. Of the 312 GPS locations from the tracking device in Quebec, there are only 3 that the Crown even argues are possibly relevant, and they date from December 16, 2018, where the device was close to or at a location associated with one of the accused. During submissions the Crown conceded that the Montreal data has “very little probative value or relevance” because of its very loose connection with the defendants. Further, the evidence is potentially prejudicial because it can suggest that because the accused reside in Montreal, and the device appears in Montreal locations, that somehow implicates them.
[13] Consequently, the Montreal data is excluded. The GTA data from Feb 25, 2019 following is admissible.
Baltman J.
Released: October 1, 2021
COURT FILE NO.: CRIMJ(P)1857/19
DATE: 20211001
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
VILME, REYES, PALLOTTA, & EL-KHOURY
REASONS FOR JUDGMENT
Baltman J.
Released: October 1, 2021