COURT FILE NO.: CJ-10009
DATE: 2023-02-07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Michael Nagtzaam
Abrahan Brito
Defendants
X. Proestos and J. Lynch, for the Crown
J. Greenspan and B. Greenshields, for the Defendant Mr. Nagtzaam
R. Pillay and R. Sekhon, for the Defendant Mr. Brito
HEARD: January 24 and 26, 2023
the honourable justice i.r. smith
ruling re objections to intercepted communications
Introduction
[1] Counsel for Mr. Brito, supported by counsel for Mr. Nagtzaam, applied to exclude recordings of 3 intercepted conversations proposed to be tendered to the jury by the Crown. On January 26, 2023, I provided an oral ruling, allowing the application in part, with written reasons to follow, which reasons I provide now.
[2] At issue on the application are recorded sessions 381, 842, and 11190. At the outset of the application, Crown counsel advised that the Crown no longer intended to lead session 11190, leaving only sessions 381 and 842 for my consideration.
[3] With respect to session 381, the accused say that the recording suffers from various frailties most of which relate the fact that the recording in question is of such poor quality that it is difficult to ascertain what is said and who is saying it and that even where words are audible the meaning of those words cannot be deciphered because the context in which they are said is not clear. In this respect the accused rely heavily on the recent judgment of the Court of Appeal in Rex v. Merritt, 2023 ONCA 3, and other similar cases.
[4] It is also argued that if some or all of session 381 is put before the jury, the transcript prepared of this recording should not be admitted, so that the jury will not be unduly influenced by that document and will be forced to rely only on what they hear on the recording.
[5] Further, the defence argues that session 381 captures irrelevant and prejudicial evidence of discreditable conduct which should not be put before the jury.
[6] On this latter point the Crown agrees, but resists the application to exclude the entirety of session 381, arguing that the irrelevant and prejudicial passages can be edited from the recording. The Crown says that the relevant portions of the recording are sufficiently audible, and that there is sufficient context to make them relevant and to allow the jury to consider their meaning. Moreover, there is no reason not to provide the jury with an edited version of transcript as long as the appropriate instruction is given that it is the recording which is the evidence, not the transcript, and that if what they hear differs from the transcript, they should rely on what they hear.
[7] With respect to session 842, the defence argues that the recording captures the accused’s alleged co-conspirator, Slobodan Poznic, speaking to an unknown third party. The defence says that the statements relied on by the Crown are hearsay and are not admissible under any exception to the hearsay rule.
[8] The Crown says that the statements made by Mr. Poznic, and upon which it wishes to rely, are hearsay but that the Crown does not tender the statements for the truth of their contents. Instead, they are tendered for the fact that they were said.
Session 381
[9] The recording of session 381 is 10 minutes long. It is a recording of a conversation between Mr. Brito and two other people, which conversation was intercepted by a probe installed in Mr. Brito’s vehicle. During the conversation, various background sounds can be heard, including music. It is apparent that the vehicle is being operated during the conversation. At one point it may be that the car is being driven through the drive through lane of a restaurant. At points the conversation is animated and/or silly. It was suggested that the participants in the conversation are intoxicated. It is possible that this is true.
[10] The transcript prepared of session 381 (Exhibit 1 on this voir dire) is six foolscap pages long. Each line of the transcript is numbered and there are 201 lines in total. Five of the lines (the first three and the last two) are instructions to the reader, not transcription of conversation. On four lines of the transcript, some or all the words spoken are spoken in Spanish and those words have been translated into English. Where what is being said cannot be heard or understood, the transcriber has inserted the word “unintelligible.” That word appears more than 80 times in the transcript, including sometimes when it seems that the words are being spoken in Spanish.
[11] The intercepted conversation occurred on the evening of February 19, 2019, the day on which the accused’s alleged co-conspirator, Slobodan Poznic, was arrested at the Ambassador Bridge in Windsor, Ontario, having come across the U.S. border into Canada in possession of 55 kg of cocaine.
[12] As I have said, the parties are agreed that the evidence of discreditable conduct captured during session 381 should not be put before the jury. When those lines are removed, what is left for my consideration are four portions of the recording: lines 4 – 18; 26 – 58; 64 – 82; and 175 – 188.
[13] The accused maintain that the recording is too inaudible to be safely admitted and that the portions of it upon which the Crown hopes to rely lack sufficient context to give them relevance, at least in part because of the issues with sound quality. The Crown says that the recording, while not good, is clear enough to decipher the words spoken and that the relevance and meaning of the words upon which the Crown relies is self-evident and/or established by other evidence.
[14] During the voir dire when the admissibility of these intercepts was considered, at the suggestion of counsel, and adopting the procedure followed by Bird J. in Regina v. Sethi, 2015 ONSC 2005 (see para. 14), I first listened to the recording of session 381 in court without the transcript so that I could focus on what I could hear. Like Bird J., I have since listened to the recording out of court many times, both with and without the transcript in front of me. It is, of course, important that it is what I have heard, not what the person who prepared the transcript heard, which should govern my conclusions.
[15] Moreover, I must be satisfied that the recording tendered by the Crown is sufficiently audible that the jury can give meaning to the words spoken, and that the statements are sufficiently complete, or are made with sufficient context, to allow the jury to “give meaning to the alleged admission in a manner that is non-speculative” (Merritt, supra, at para. 79. See also, generally, paras. 63 – 84).
[16] I found it difficult to discern many words spoken when I first heard the recording played in court. As I have said, though, I have since listened to the recording many times, both with and without the transcript, and although there are certainly portions of the recording where it is difficult or impossible to discern what is being said, it is clear to me that the transcript prepared by the police accurately captures the words which can be heard and indicates accurately where the conversation is “unintelligible.”[^1] I note that the portions which are most difficult to hear are, for the most part, portions which the parties agree should not be admitted in any event.
[17] The topic which dominates the prejudicial portions of the conversation is the personal use and purchase of illicit drugs by the three participants to the conversation. Although much of this conversation is garbled and unintelligible, there is no doubt that this is the topic of the conversation. The parties also agreed that the very last portion of the recording should be excluded because it is irrelevant and includes one of the participants in the conversation calling another a “fucking murderer,” although it seems clear that these words are said in jest.
[18] The first section of the recording which the Crown asserts is relevant and audible is approximately 26 seconds long and is captured on 15 lines of the transcript (lines 4 – 18). The word “unintelligible” is used six times in those 15 lines and one of the lines transcribes a sentence or phrase said in Spanish. The relevance of this section of the recording is that one of the speakers refers to one of the others as “A. B.”, the accused’s initials. In my view this sentence is audible and said in sufficient context to give it meaning. Most of this portion is about making a trip to the beer store and it is of limited relevance except insofar as it may allow the jury to familiarize itself with the voices of the participants in the conversation. The unintelligible portions of the transcript to not detract from this purpose.
[19] The second section tendered by the Crown is approximately 1 minute and 15 seconds long and is set out on 19 lines of the transcript (lines 64 – 82). The word “unintelligible” appears 12 times in this section, but, to my ear, the vast majority of what is said is audible. During this portion of the conversation Mr. Brito can be heard to say that he has to “go see uh a fucking millionaire buys a G-Wagon for two hundred fifty thousand dollars.” He also says with some surprise “oh my God that’s why he says I have to talk to him” and, later in the segment, adds that “this guy has money bro … this motherfucker.” After a comment by another speaker and some unintelligible words, Mr. Brito says “he’s a heavy duty heavy duty heavy heavy heavy.” Upon being asked an unintelligible question, Mr. Brito responds “Huh no (unintelligible) he he’s at the point he’s like he sends people.” These last three words are spoken in Spanish. When asked if they were going to “meet him just now”, Mr. Brito responds in the negative, saying twice that he is “gonna go cut his hair.” The discussion of the person Mr. Brito is talking about is interrupted by some conversation about “change.” Mr. Brito tells one of the other participants “I gave you all my fucking change.” It is at this point that the Crown suggests that the parties to the conversation may be going through a drive through.
[20] In my view the recording of this portion of session 381 is sufficiently audible to give the words spoken meaning. In other words, that which is inaudible or unintelligible does not detract from the ability of the listener to give meaning to what is audible. I am also of the view that the transcript is accurate. Moreover, it is obvious that two distinct topics are being discussed: change and a wealthy person known to Mr. Brito. It is clear when the conversation changes from one topic to the other. The Crown will argue that the wealthy person Mr. Brito is talking about is Mr. Nagtzaam. In support of this proposition, it is observed that other evidence establishes that Mr. Nagtzaam purchased a Mercedes Benz G-Wagon and that he appeared to be wealthy. Moreover, Mr. Brito was a barber who cut Mr. Nagtzaam’s hair from time to time. Further, the arrest of Mr. Poznic, the Crown will argue, provides the reason for the two accused to speak to each other on that day.
[21] The parties agree that the next portion of the recording, roughly 7 seconds in length, should be removed because the conversation turns briefly to the purchase of cocaine for personal use.
[22] The third portion of this recording tendered by the Crown is approximately 1 minute and 15 seconds and is transcribed over 19 lines (lines 64 – 82). The word “unintelligible” appears five times in this section of the transcript. Again, the vast majority of what is said is audible. The most significant statements made by Mr. Brito in this section are made at its beginning where he clearly says “what I do for him is I transfer his money his payments I pick up all the payments and I take it to the guy that has to send it back back to Mexico … And they pay me big bucks for it”. Mr. Brito then adds that this is how he has “been able to survive” and “that’s why I still have my house.” One of the other speakers asks a question, twice, to which Mr. Brito is unresponsive and then the conversation returns to the topic of change.
[23] Again, I am of the view that this conversation is sufficiently audible and provides sufficient context such that it is relevant and may be put before the jury. Four of the five unintelligible portions are in the latter part of this section where two unintelligible questions go unanswered and where the discussion becomes obviously irrelevant. In other words, that which is unintelligible does not prevent the listener from giving meaning to the intelligible and relevant portions of the recording.
[24] Following this third portion there is a long section, from line 83 to line 174, approximately 3 minutes and 6 seconds, where the conversation turns back to the personal use and purchase of illicit drugs. Although the word “unintelligible” is inserted 46 times during this section, it is obvious that this is what the parties to the conversation are discussing.
[25] The fourth and last section tendered by the Crown is approximately 31 seconds long and is transcribed over 14 lines (lines 175 – 188). The transcriber has inserted the word “unintelligible” five times. Notwithstanding these unintelligible words or passages, it is clear that Mr. Brito is again discussing his “boss” who has a G-Wagon, whom he is going to pick up. There is sufficient audibility and context for the listener to draw these conclusions. As I have said, that Mr. Nagtzaam had a G-Wagon is the subject of other evidence. In my view this evidence is relevant and admissible.
[26] As I have said, in my view each section of the transcript considered separately is sufficiently audible and the words spoken are said with sufficient surrounding context for the trier of fact to ascribe meaning to them. Taken together, I am of the view that this conclusion is even stronger. It is apparent that Mr. Brito is talking about the same wealthy person throughout and that he is confirming that he works for that person by collecting and delivering payments, in addition to going to pick him up and to cutting his hair. In my view, these conclusions are available in context and without having to resort to speculation, even though some of the words spoken are inaudible or unintelligible (see Merritt, supra, at para. 74).
[27] It was argued that the removal of the prejudicial portions of the recording also has the effect of removing context – evidence that the three speakers are intoxicated – which may be important to the ability of the defence to argue that what is said should not be taken seriously. In my view, the possibility that the speakers are intoxicated is a position which may be advanced on the portions of the recording tendered by the Crown. In other words, during those sections which I have said are admissible, there is sufficient evidence of the speech of the occupants of the car – animated, argumentative, occasionally slurred and/or ridiculous – that the defence can argue that this conversation is the talk of three drunk and/or high men that should be given little or no weight.
[28] In sum then, the recording of lines 4 – 18, 26 – 58, 64 – 82, and 175 – 188 of session 381 will be admissible. I see no reason why the jury should not have the benefit of the transcript to assist them with their consideration of the recording. Of course, it will be important that the jury be given appropriate instructions respecting the use to which the transcripts of the recording may be put, and the fact that (except where the words are spoken in Spanish) it is the recording which is the evidence, not the transcript.
[29] The jury will also require the instruction that the statements in this recording are not admissible against Mr. Nagtzaam. I do not agree with the submissions made on behalf of Mr. Nagtzaam that this added layer of complexity will be too difficult for the jury to follow.
Session 842
[30] As indicated above, Mr. Brito argues that the relevant statement in this recording, which captures a conversation between Mr. Poznic and a third party, is pure hearsay, relied upon by the Crown for the truth of its contents, and not admissible pursuant to any exception to the hearsay rule. The Crown agrees that the statement is hearsay and not subject to any exception, but contends that the statement is admissible for the fact that it was said.
[31] The conversation caught by session 842 occurred on December 15, 2018, and is conducted in Serbian. The translated transcript of the session was marked as Exhibit 4 on this voir dire. The portion of it upon which the Crown hopes to rely is as follows: [^2]
Unknown Male: When are you coming back January 15th
Slobodan Poznic: No on the 28th our wedding is on the 19th
Unknown Male: Don’t miss the wedding fuck
Slobodan Poznic: (laughs) I wont I guess I packed the suit three times was getting the pants tailor my calf are like monkey’s when I get back will take it to dry cleaning.
[32] This exchange is important from the Crown’s perspective because the police intercepted a January 23, 2019, text exchange between Mr. Nagtzaam and Mr. Brito (admitted as Exhibit 5 on this voir dire) during which Mr. Nagtzaam appears to be complaining to Mr. Brito about having lost some money (“27k”) on a transaction involving lumber. He writes, though, that “its okay” because “im back to what i originally was happy to make so better then being at a loss i guess”. Mr. Brito responds as follows: “Yea tell our friend to come back no honey moons lol”.
[33] The Crown contends that Mr. Brito’s reference to “our friend” is a reference to Mr. Poznic, and that the reference to “honey moons” is a reference to the fact that Mr. Poznic has left the country and gone to Serbia to attend his own wedding, a point which seems to be confirmed by session 842. In other words, the Crown’s position is that session 842 is admissible to establish who Mr. Brito is talking about. The accused believed that Mr. Poznic was going to a wedding. It does not matter whether that was true, what matters, on the Crown’s argument, is that that is what the accused thought.
[34] Counsel for Mr. Brito argues that the purpose described by the Crown shows that its true purpose is to have the statement admitted for the truth of its contents. In other words, the fact that Mr. Poznic said that he was going to be married on the 19th and was returning on the 28th has no value unless it was true, especially given that there is no evidence that he had also told the accused that he was going to be married on the 19th and was to return on the 28th.
[35] In my view, the statement made by Mr. Poznic, in the circumstances of this case, has no evidentiary value unless it is admissible for the truth of its contents. What the Crown hopes for from the intercepted communication is the identification of the person about whom the accused are speaking in their text exchange of January 23, 2019. If it were true, as Mr. Poznic is heard saying in Serbian, that he was coming back on the 28th because his wedding was on the 19th, this would be compelling evidence that the person to whom Mr. Brito referred (who should “come back” and have “no honey moons”) was Mr. Poznic.
[36] On the other hand, if the truth of what Mr. Poznic said to the unknown male during session 842 is not considered, then it has no value at all. The mere fact that Mr. Poznic told an unknown male that his wedding was on January 19th and that he was coming back on the 28th – whether or not any of that is true – does not establish that he had told either of the accused – or anyone else for that matter – that he was getting married on the 19th and coming back on the 28th such that one could conclude that Mr. Brito’s text message is referring to Mr. Poznic. Obviously, Mr. Poznic’s statement to an unknown person is evidence of Mr. Poznic’s state of mind, but his state of mind is irrelevant. It is Mr. Brito’s state of mind which is in issue here and any statement Mr. Poznic made to an unknown person outside the presence of Mr. Brito cannot be tendered to prove Mr. Brito’s state of mind.
[37] I note that Mr. Poznic is not expected to be a witness at the trial. Accordingly, his statement cannot be tested by cross-examination. One commonly referred to test for determining whether a statement is hearsay is to consider whether one can imagine relevant questions which might be put to the declarant in cross-examination. Another is to consider whether the truth or falsity of the statement is of no consequence (Sopinka, et al., The Law of Evidence in Canada, 6th ed. (Toronto: LexisNexis, 2022), at pp. 275 – 276). Here, no party will be able to ask Mr. Poznic either whether he was to be married on the 19th and planned to come back on the 28th or whether he ever told the accused that these things were so. If none of these things was true, it cannot be said that session 842 supports the inference that Mr. Brito was referring to Mr. Poznic in his text message of January 23, 2019. In other words, the truth of the statements is of some consequence.
[38] In my view, in all these circumstances, it is evident that session 842 is tendered for a hearsay purpose. In the absence of any available exception to the hearsay rule, it is therefore inadmissible.
Summary
[39] For all these reasons, session 381 is admissible in part (and an edited transcript of that session may be put before the jury) and session 842 is not admissible.
I.R. Smith J.
Released: February 7, 2023
COURT FILE NO.: CJ-10009
DATE: 2023-02-07
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
Michael Nagtzaam
Abrahan Brito
Defendants
ruling re objections to intercepted communications
I.R. Smith J.
Released: February 7, 2023
[^1]: As will be seen below, where portions of it are quoted in these reasons, the transcript has been prepared without any attempt to include punctuation.
[^2]: I note again that the transcriber has used no punctuation in the transcript.