His Majesty the King v. Anthony La, 2025 ONSC 3680

CITATION: R. v. La, 2025 ONSC 3680

COURT FILE NO.: CR-25-1245

DATE: 2025-06-19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

Applicant

– and –

ANTHONY LA

Respondent

S. Patterson and A. Grady, for the Crown

H. Aly, for the Respondent

HEARD: June 16, 2025

REASONS FOR DECISION co-conspirators hearsay

Bordin J.

Overview

1The respondent is charged with the first-degree murder of Sabir Omer and with the attempted murder of Aboud Mohammad.

2Sabir Omer was shot and killed outside a Tim Horton’s on King Street West in Hamilton on September 14, 2021. At 2:45 p.m., a single male shooter entered the parking lot from King Street West. The shooter shot Sabir Omer once in the forehead causing him to fall to the ground. When Aboud Mohammed attempted to run for cover, the shooter fired one shot at him and narrowly missed. The shooter then pointed the handgun back towards Sabir Omer and fired one more shot, striking the back of his right leg. Sabir Omer was pronounced dead at the scene.

3The Crown seeks to admit at trial the following statements/evidence to be used against the respondent:

a. Communications between Jahquann Eccleston and his brother Trayonte Eccleston on August 14 and 15, 2021, about acquiring the Ford Fusion as a rental from a contact labelled “rental guy”.

b. Communications between Jahquann and Trayonte on September 12, 2021, discussing obtaining a car for a third party;

c. Communications between Jahquann and Trayonte about arranging to meet up on September 14, 2021, just after the shooting;

d. Communications from other participants in a group chat on September 6 and 7, 2021, discussing Sabir Omer and HMS; and

e. Videos created by others as part of the snapchat compilation video sent by Jahquann on September 8, 2021.

Factual allegations

4The facts relied upon by the Crown are as set out in my reasons on the admissibility of other discreditable conduct found at R. v. La, 2025 ONSC 3531. In addition to those facts, the Crown relies on the following additional facts.

5There are text communications between Jahquann and his brother Trayonte about acquiring the Ford Fusion on August 14 and 15, 2021, as a rental from a contact labelled “rental guy”.

6On September 6, 2021, the respondent and Jahquann engaged in a group snapchat conversation. The conversation begins with an unknown person in the group stating the following, “HMS are pussyfoots.” The next day the same unknown person writes, “Bout to make her give the drop on hms pussyfoots.” The respondent then responds, “@nj2wavyy1 caught us lacking” with an emoji.” Later on September 7, the respondent writes, “Sabir Hassan fb”. The same conversation continues September 14, 2021, at 8:12p.m., after Sabir Omer has been killed, with the original unknown person saying, “That finna be fb” with an emoji. The same unknown person then writes, “Somkin that fb pack” at 8:20p.m..

7On September 8th, 2021, Jahquann sent a Snapchat compilation to the respondent and others that includes a clip created by the respondent from a movie of someone shooting with the caption “running down hms”.

8On September 12, 2021, Jahquann engages in a conversation with Trayonte through instant messaging. The brothers were discussing obtaining a car for a third party. In the messages, Jahquann is urging that they provide this other person with a slower vehicle as opposed to a fast one. In the context of that conversation Trayonte states “I hope you don’t regret not giving them a fast car…in case they follow hms n air it and need to fly”. The Crown will submit that this discussion was in furtherance of obtaining a getaway car for the planned attack on Sabir Omer and was therefore done in furtherance of the conspiracy.

9On September 14, 2021, immediately after the shooting, the Ecclestons’ rented Ford Fusion travels to Burlington. The cellular telephone records for both Jahquann and the respondent put them together in the Fusion using the same cellphone towers. While they are in Burlington, Jahquann is communicating by text with his brother Trayonte, who has possession of the Acura RDX, and they are making arrangements to meet up.

10At 4:04 p.m., after the shooting, the Acura RDX is captured arriving at 57 Forest Avenue and entering the underground parking garage. Trayonte is now driving both Jahquann and the respondent as passengers. After parking the car, Jahquann and the respondent are captured on CCTV inside the building heading up to the sixth floor of 57 Forest Avenue. The respondent has changed his clothing and is no longer wearing a mask. The patterned windbreaker he is wearing in the elevator at 57 Forest after the shooting is later recovered from his home at 155 Stirton Street on October 14, 2021. The backpack the respondent is wearing is later found at 57 Forest Avenue on October 14, 2021.

Applicable Law

Conspiracy

11A conspiracy is complete upon proof of an agreement to carry out an unlawful act. It is not necessary for the accused to be aware of all the details of the scheme, or of everyone who was involved, or their respective roles. It is sufficient that the accused be aware of the general nature of the common design and agrees to adhere to it: R. v N.Y., 2012 ONCA 745, at para. 89.

Carter and the co-conspirators’ exception to the hearsay rule

12The co-conspirators’ exception to the hearsay rule may be stated as follows: 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: R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 8; R. v. Chang (2003), 2003 CanLII 29135 (ON CA), 170 O.A.C. 37 (C.A.), at para. 53.

13Acts and declarations are typically only admissible against the doer and maker. However, in the context of a conspiracy, the acts and declarations by one member of the agreement may become admissible against other members of the same agreement, if those acts and declarations are done or made in pursuit of the same unlawful purpose while the conspiracy is still operative: R. v. Dawkins, 2021 ONCA 113, 155 O.R. (3d) 111, at paras. 36 and 42. This is true, whether or not those alleged co-conspirators stand as co-accused at trial or whether their identities are known or unknown. Regardless, the acts and declarations of alleged co-conspirators are conditionally admissible at trial, leaving it up to the trier of fact to determine whether the evidence can be marshalled in aid of proving the accused’s membership in the conspiracy. Where the trier of fact is a jury, the proper approach to that determination requires precise, careful, and admittedly complex instructions: Dawkins, at para. 37.

14The three stage test for admissibility of such evidence, first established in R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938, was restated by McIntyre J. in R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, at para. 73:

1. The trier of fact must first be satisfied beyond reasonable doubt that the alleged conspiracy in fact existed.

2. If the alleged conspiracy is found to exist then the trier of fact must review all the evidence that is directly admissible against the accused and decide on a balance of probabilities whether or not [the accused] is a member of the conspiracy.

3. If the trier of fact concludes on a balance of probabilities that the accused is a member of the conspiracy then [the trier] must go on and decide whether the Crown has established such membership beyond reasonable doubt. In this last step only, the trier of fact can apply the hearsay exception and consider evidence of acts and declarations of co-conspirators done in furtherance of the object of the conspiracy as evidence against the accused on the issue of his guilt.

15In considering whether the Crown has established beyond a reasonable doubt that the alleged conspiracy existed, the trier of fact must consider “all of the evidence”. Generally, at the step one inquiry, testimony of things said and done by alleged conspirators is tendered not for its truth, but as circumstantial evidence of the existence of the agreement. The admissibility of the evidence depends on whether, as a matter of logic and human experience, an inference of the existence of the agreement is available from the evidence considered in its totality: R. v. Puddicombe, 2013 ONCA 506, at paras. 111-112.

16If satisfied beyond a reasonable doubt at step one that the alleged conspiracy in fact existed, the trier of fact then goes on to consider whether the accused is probably a member of that conspiracy based on the evidence directly admissible against the accused – the accused's own words and conduct viewed against its proper context. This determination is made on a civil standard of a balance of probabilities: Dawkins, at para 41.

17If satisfied that the accused was probably a member of the conspiracy, the trier of fact goes on to determine whether the accused’s membership has been proven beyond a reasonable doubt. To make this determination, the trier of fact is to consider all the evidence, including the acts and declarations of other alleged co-conspirators done and made in furtherance of the conspiracy while the conspiracy was ongoing in nature: Dawkins, at para 42. It is not enough that the hearsay words or acts pertain to the conspiracy. They must be found to further the specific unlawful object that has been found to exist beyond a reasonable doubt under step one: Chang, at para. 120. The rule does not permit the trier of fact to consider idle conversation, or narrative description of past events. Rather, the trier may only rely on acts or declarations that further the common interest, which are the very acts and declarations the parties themselves are likely to have relied upon in seeking to achieve the common goal: Chang, at para. 120.

18A post-offence conspiracy to evade detection and prosecution may be established by evidence in the same manner as any other conspiracy. Whether such a conspiracy was to avoid prosecution or whether it was part of a broader continuing conspiracy is a matter for determination by the jury: R. v. Magno, 2015 ONCA 111, at paras. 68-70.

19The co-conspirators’ exception generally meets the requirements of the principled approach to the hearsay rule: Mapara. Nevertheless, it is important to test the application of the exception to the particular circumstances for the indicia of necessity and reliability. In “rare cases” where necessity and/or reliability are lacking, the trial judge may exclude the hearsay statements: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 214; R. v. Simpson, 2007 ONCA 793, at para. 24; N.Y., at para. 90.

20The party challenging the admissibility of evidence falling within a traditional exception bears the burden of showing that the evidence should nevertheless be inadmissible: Starr, at para. 214; Simpson, at para. 20. Here, it is the respondent who bears the burden.

Role of the trial judge and the trier of fact

21At this stage of the proceedings, I am tasked with determining threshold admissibility. The question of ultimate reliability under both the Carter process and the principled approach is a matter for the trier of fact: Chang, at para. 111.

22While the determination of whether the co-conspirators’ declarations may be used against an accused are for the trier of fact, the trial judge tests the co-conspirators’ declarations against the necessity and reliability criteria when it is necessary to do so. If the trial judge determines that a voir dire is necessary to screen a declaration against the necessity or reliability criteria, the voir dire should be held before the case is left with the trier of fact: Chang, at para. 130. When a voir dire is required to screen a declaration against the necessity and reliability requirements, the voir dire will be concerned only with the hearsay use of the declaration against an alleged co-conspirator: Chang, at para. 131.

23Further, the trial judge is to determine whether there is some evidence upon which a jury could find that the declaration was made in furtherance of the conspiracy: R. v. Bogiatzis, 2010 ONCA 902, at para. 42.

Necessity

24The co-conspirators’ rule meets the requirement of necessity in cases where the declarant is not available to testify. In some cases, the declarant may be unavailable to testify because he is a co-accused and cannot be compelled to give evidence by either the Crown or the accused. It is not an answer for an accused to say that the Crown could have avoided the dilemma by charging the declarant separately: Chang, at paras. 102-103.

25As summarized in Chang at para. 105, necessity can be grounded in more than just the unavailability of the declarant. The criterion of necessity must be given a flexible definition, capable of encompassing diverse situations where the relevant direct evidence is not, for a variety of reasons, available. It includes situations where evidence of the same value cannot be obtained from or other sources. In the case of co-conspirators’ declarations, necessity will arise 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.

26Chang did not address the circumstance where a co-conspirator declarant was available to testify. Chang did not say that the combined effect of the three listed factors is the only way in which necessity may be found in the case of co-conspirators’ declarations: N.Y., at para. 78. In N.Y., the Court of Appeal agreed that the trial judge was correct when he determined that the theoretical availability of the witness to testify at the instance of the Crown or the defence was not an insurmountable impediment to the application of the co-conspirators’ exception.

27This is further addressed by the Court of Appeal for Ontario in Magno, at paras. 60-61:

The issue of leading a co-conspirator’s hearsay declaration when the witness is available to testify was raised but not answered in R. v. Chang (2003), 2003 CanLII 29135 (ON CA), 173 C.C.C. (3d) 397 (Ont. C.A.), at paras. 107, 110. However, as noted by Blair J.A. in R. v. N.Y., 2012 ONCA 745, 270 C.R.R. (2d) 294, at para. 78, Chang did not say that non-compellability is required to satisfy the necessity requirement. Rather, “it is the availability of the evidence, not the availability of the witness that is of ultimate significance, and…while co-conspirators may be physically available, their testimony rarely is” (emphasis in original).

Our courts give the necessity criterion a flexible definition, capable of encompassing diverse situations: R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at pp. 933-34. The necessity criterion is satisfied where it cannot be expected that evidence of the same value from the same or other sources will be available. Thus, the necessity criterion is fact-specific and its precise limits remain to be established in the context of specific cases: Chang, at para. 105; R. v B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, at p. 798.

28Necessity can be grounded in more than the availability of the witness. Necessity must be given a flexible definition and may arise in cases in which one cannot expect to get evidence of the same “value” or quality from other sources. Statements made by co-conspirators in furtherance of the common design assist in providing a picture of the conspiracy that is unlikely to emerge were the evidence to be given directly by the co-conspirator at trial several years after the events: N.Y., at para. 92.

Reliability

29The test for threshold reliability is “circumstantial guarantees of trustworthiness”. In the case of most hearsay exceptions, the guarantees of trustworthiness are found in the circumstances in which the statements were made: Chang, at para. 114.

30Threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability) or a combination of both substantive and procedural reliability. The threshold reliability standard always remains high: R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at paras. 27 and 32.

31The threshold reliability analysis takes place on a balance of probabilities: Bradshaw, at para. 49.

32Procedural reliability is established when there are adequate substitutes for testing the statement's truth and accuracy. The substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement: Bradshaw, at para. 28.

33Substantive reliability asks whether the circumstances surrounding the making of the statement render it inherently trustworthy. To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement. Substantive reliability is established when the statement is made under circumstances that substantially negate the possibility that the declarant was untruthful or mistaken: Bradshaw, at para. 30.

34Corroborative evidence must go to the truthfulness or accuracy of the material aspects of the content of the hearsay statement sought to be relied on for its truth: Bradshaw, at para. 45. Corroborative evidence overcomes the specific dangers presented by the hearsay evidence when, considered in the circumstances of the case, it shows that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement. It must rule out alternative explanations for the statement. Adding evidence that is supportive of the truth of the statement, but that is also consistent with alternative explanations, does not add to the statement’s inherent trustworthiness: Bradshaw, at paras. 47-48 and 57.

35In the case of the co-conspirators’ exception, the guarantees of trustworthiness come from both the circumstances in which the declarations are made and the use of the Carter approach: Chang, at para 111. The cumulative effect of the Carter requirements provides safeguards against the dangers traditionally associated with hearsay evidence and provides sufficient guarantees of trustworthiness to permit the use of hearsay that satisfies those requirements: Chang, at para. 115. The underlying circumstantial indicators of trustworthiness emerging from compliance with Carter remain as a starting point for the “rare case” analysis: N.Y., at para. 99.

The Crown’s position

36The Crown’s position is that the contemporaneous and recorded conversations satisfy the Carter test and meet the necessity and reliability criteria of the principled approach to hearsay.

37In addition to the above referenced cases, the Crown relies on R. v. Tsega, 2016 ONSC 3772, at para. 39. Tsega was a decision rendered after all the evidence was called at trial and there was some basis for the judge to determine willingness to testify. As a result, it is not particularly helpful.

38The Crown submits that the written communications between the Ecclestons and others is the best evidence. The Crown relies on R. v. Magno, 2012 ONSC 4001, where, at paras. 61-66, the court cites various cases for the following propositions:

a. recorded conversations are undeniably the best evidence that exists concerning what is occurring between conspirators;

b. there may be cases where there is some other contemporaneous record of the discussion that will be superior to the declarant’s recollection;

c. it is unlikely that a declarant who has no contemporaneous record of the earlier comments could give evidence of the same quality as the recorded conversation; and

d. some courts have suggested that it can be assumed that co-conspirator declarants will not be co-operative witnesses, thereby satisfying the necessity requirement.

39The trial court in Magno concluded that in some cases it may be obvious from the agreed facts about the present circumstances of the co-conspirator declarants, why the necessity requirement is satisfied. In other cases evidence may have to be called to establish necessity.

The respondent’s position

40The respondent agrees with the Crown’s statement of the law but disagrees that necessity has been established. The respondent did not dispute any of the facts asserted and relied on by the Crown.

41The respondent relies on Chang and cites paras. 102-110.

42In his written submissions, the respondent submits that the Crown has failed to establish that the requirements of necessity and reliability have been met for two reasons. First, the co-conspirators are compellable, having plead guilty to participating in the killing of Sabir Omer. The respondent submits that there is no evidence that the co-conspirators are unwilling to testify in an honest and forthright manner. Second, the proposed texts are in slang so their meaning is ambiguous or totally unknown. The respondent submits that the declarants need to provide viva voce evidence to clarify what they were saying. Without evidence of the meaning of the messages there is real risk that they will be interpreted using conjecture and speculation.

43In oral submissions, the respondent took the position that the Crown’s application is premature and that the application should be made following the conclusion of the Crown’s case. He reiterated that the witnesses are compellable and there is no evidence that they will not give evidence. Further, if the witnesses are not cooperative, they can be cross-examined at trial on their communications pursuant to s. 9 of the Canada Evidence Act, R.S.C, 1985 c. C-5. The respondent submits that, at this point, it is just speculation that the witnesses will not cooperate.

44The respondent concedes that the Ecclestons would be Vetrovec witnesses

45The respondent relies on two cases in support of his position: R. v. Brooks, 2018 ONCA 587, and Simpson.

46Brooks is distinguishable. In Brooks there was no pretrial application brought by the Crown to admit the co-conspirators evidence of V.B. In a footnote in pretrial materials filed on other issues, the Crown noted that it intended to rely on the co-conspirators’ exception but that the issue would have to be argued after the conclusion of the evidence at trial. V.B. was summoned to testify at trial and repeatedly bound over. He was never called and other witnesses testified about what V.B. had said. After both parties finished calling their evidence the Crown applied to have the hearsay statements admitted for the truth of their contents pursuant to the co-conspirators hearsay exception. The trial judge granted the application.

47The trial judge did not provide reasons for why he was instructing the jury regarding the co-conspirators’ exception to the hearsay rule. The court noted that the Crown had provided an ambiguous notice of its intention to rely on the hearsay for its truth. The Crown had an obligation to argue the admissibility of the evidence before the conclusion of its case if it wished to keep open the possibility of calling V.B. to give evidence in the event the defence was able to persuade the trial judge that the lack of necessity foreclosed reliance on the exception to the hearsay rule. The court noted it was clear that there was a live issue regarding necessity, given that V.B. was available to testify. Finally, there was little evidence that V.B. would have been an uncooperative witness.

48While V.B. had refused to testify at the preliminary hearing when he was facing charges related to Pham’s death, he subsequently pleaded guilty to manslaughter. As part of his guilty plea, V.B. adopted facts under oath that included the utterances the Crown wished to adduce for their truth at the appellant’s trial. Moreover, as noted above, in submissions to the trial judge the Crown conceded that calling V.B. as a witness “was a possibility that was open to us”.

49Ultimately, the Court of Appeal in Brooks concluded that the decision to instruct the jury on the co-conspirators’ exception to the hearsay rule was not supportable on the record nor was the basis for the decision apparent from the circumstances. Given the centrality of the hearsay evidence to the Crown’s case, and the fact that the trial judge provided no reasons for giving the instruction, a new trial was required.

50In Simpson the evidence the Crown sought to rely on was the out-of-court declarations of Mr. Williams to an undercover police officer. The officer testified at trial based on her recollections, which were recorded either hours after the conversation or the next day. The officer testified that Mr. Williams explained how he obtained drugs from his “guy”, phoned the appellant, and attended at the appellant’s residence. Essentially, the hearsay evidence consisted of utterances to an undercover police officer that implicated the appellant in criminal activity. They were intended to show that Mr. Williams was arranging drug transactions through his supplier, the appellant. The utterances were not made under oath. Further, Mr. Williams did not testify and, therefore, was not subject to any form of cross-examination or observation by the trier of fact.

51The Court of Appeal held that the fact that Mr. Williams resolved his matter before the appellant’s trial suggested that he had reason to lessen his role in the offences and place a greater role on the appellant, both of which were at least indicative that he might be a cooperative Crown witness. Importantly, whether Mr. Williams would be a cooperative witness, or whether there was any meaningful prospect of obtaining evidence from him, was never established. This was sufficient to dispose of the appeal, but the court also had concerns about reliability. Specifically, the time lag between the conversation and the officer writing the notes created the possibility of inaccurate recording. Further the notes were questionable insofar as the officer assumed that when Mr. Williams referred to his “guy” he was speaking of his supplier.

52The Court of Appeal concluded that the availability of the declarant to be called as a witness, in some cases, could support the “rare exception” where the requirements of necessity and reliability would not be met. Thus, requiring that the declaration be adduced through the testimony of the declarant: paras. 34-36.

53It is notable that the evidence in Brooks and Simpson was evidence from one witness about what one of the alleged conspirators said. It was not written communications between the conspirators. This makes the statements in Brooks and Simpson potentially less reliable than the direct communication between two co-conspirators whose conversation was recorded contemporaneously, as is the case before me: Simpson at para. 32.

54Finally, in N.Y.¸ at paras. 75-79, the Court of Appeal noted that Simpson did not stand for the proposition that the co-conspirators’ exception to the hearsay rule may never apply where the declarant is available to testify.

Analysis

55The primary issues at trial will be identity and planning and deliberation.

56As noted, in considering whether the Crown has established beyond a reasonable doubt that the alleged conspiracy existed, the trier of fact must consider “all of the evidence”. In addition to the proffered communications, it is expected that there will be evidence:

a. that in the days prior to the shooting the Eccleston brothers were seen in possession of a silver Ford Fusion with license plate CSSM 152, which was later confirmed to be a rental car;

b. that on the day of the shooting the Eccleston brothers were captured on CCTV leaving and departing 57 Forest Avenue together in the Acura RDX;

c. of CCTV footage capturing the Ford Fusion circling the downtown area, travelling past the Tim Hortons on several occasions, and along the side streets in the immediate area;

d. of the Ford Fusion traveling to nearby Hess Street pulling over just south of Market Street and, moments later, the Acura RDX arriving at the same location, parking just behind the Ford Fusion, and someone exiting the Acura RDX on the passenger side and entering the Ford Fusion. Shortly thereafter, the Ford Fusion begins to travel north on Hess Street; and

e. of the data on the Ford Fusion as to its whereabouts after the shooting.

57I find that there is some evidence upon which a jury could find that the declarations sought to be relied upon by the Crown were made in furtherance of the conspiracy.

58There is also some evidence that the respondent was a part of the conspiracy. In part, this includes evidence that at 2:30 p.m. the respondent placed a phone call to Jahquann who was in the vicinity of the shooting at 20 George Street. Jahquann is the only person the respondent spoke to in the hour leading up to the shooting. The respondent called and connected with Jahquann on five other occasions within an hour prior to 2:30 p.m. After the call, Jahquann, his brother, and another individual departed 20 George Street in Jahquann’s Acura RDX. Shortly thereafter, when the Ford Fusion travelled to nearby Hess Street and pulled over just south of Market Street, the respondent placed another call to Jahquann at 2:37 p.m. Moments later, the Acura RDX arrived at the same location and parked just behind the Ford Fusion. The respondent placed a third call to Jahquann which lasted 18 seconds. The CCTV then captures someone exiting the Acura RDX on the passenger side and entering the Ford Fusion. The Acura RDX then departs the area. There will also be evidence of the respondent and Jahquann traveling together after the shooting.

59I find that there is some evidence upon which a jury could find, on a balance of probabilities, that the respondent was probably a member or participant in the common unlawful design or conspiracy.

60Turning to necessity, by the time of trial, four years will have passed from the time of the written communications sought to be relied on by the Crown. The communications are a complete and contemporaneous recording of the events. The alleged conspirators had no reason to lie or mislead each other at the time. Statements made by alleged co-conspirators in furtherance of a common design assist in providing a picture of the conspiracy that is unlikely to emerge if the evidence is given directly by the co-conspirators four years after the events. It is unlikely that the oral evidence would approach the accuracy of the contemporaneous written communications. It is unlikely that testimony almost four years after the events would be more meaningful than the actual written communications.

61The Ecclestons would be Vetrovec witnesses. This presents credibility issues with their viva voce evidence. The contemporaneous communications are better than calling witnesses whose testimony would be imbued with unreliability and would be subject to Vetrovec warnings.

62It is the availability of the evidence, not the availability of the witness that is of ultimate significance. In assessing the value and the quality of the evidence, I conclude that the written communications are the best evidence available. It is unnecessary to wait until trial to determine this.

63Finally, Jahquann is awaiting sentencing in relation to a separate homicide and Trayonte has been sentenced to life imprisonment for a different homicide. It is highly unlikely that either of them would be a cooperative witness.

64With respect to reliability, the circumstances under which the declarant makes a statement may be such as to guarantee its reliability, irrespective of the availability of cross-examination: R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at p. 268.

65The communications are inherently reliable because of the circumstances in which they were made. If indeed in furtherance of a conspiracy, the participants would have no reason to lie or mislead each other. The statements were spontaneous. They were made contemporaneously with ongoing events. The circumstances substantially negate the possibility that the declarants were untruthful or mistaken.

66Further, there is other evidence that confirms some of the statements, for example, the Ecclestons were seen driving the Ford Fusion and it was captured on CCTV in the immediate vicinity of the shooting, both before and after the shooting. There is also evidence that the respondent’s cell phone connected with the Ford Fusion’s communications system shortly after the shooting.

67Moreover, as noted in Chang, further guarantees of trustworthiness of the declarant’s statements come from the use of the Carter approach when determining the admissibility of the statements. This was reiterated by McLachlin J. in Mapara, at paras. 22-27.

68With respect to the meaning of the slang terms used in the communications and their impact on reliability, it is not necessary to understand the meaning of every word to understand the gist of the communications. It is also open to the Crown to call evidence at trial to explain the meaning of some of the words. It is for the jury to ultimately decide what the communications mean and whether they satisfy the test in Carter.

Disposition

69The Crown’s application is granted.

M. Bordin J.

Released: June 19, 2025

CITATION: R. v. La, 2025 ONSC 3680