Ontario Criminal


Hearsay conversation relied on by Crown was ambiguous at best

Crown appealed accused’s acquittal on nine drug-related charges, including conspiracy to traffic cannabis and marijuana and possession of cannabis and marijuana for purpose of trafficking. Police executed surreptitious search of apartment and installed probe to intercept communications. Inside apartment, police found significant amounts of what they suspected to be cocaine. Police intercepted conversation between individual and accused in apartment, while at same time they saw second individual walk over to accused’s car where trunk opened, at which time he placed duffle bag inside trunk. Accused’s vehicle was pulled over by police and he was arrested. Trial judge held that Crown failed to prove that accused knew that there were drugs in duffle bag given that drugs were never mentioned in verbal and text communications entered into evidence, there was no evidence of what was discussed in earlier brief conversation between accused and individual, and there was some evidence that accused owed individual money. Trial judge held that despite all surveillance on apartment, accused was never seen there prior to day in question, nor was there any evidence he knew it was stash house or that individual and second individual were allegedly in drug business. Crown argued that trial judge erred in application of co-conspirator’s exception to hearsay rule by requiring that Crown prove accused’s participation in conspiracy beyond reasonable doubt at stage one of Carter test. Crown argued that trial judge erred by applying reasonable doubt standard to individual pieces of evidence, as opposed to determining whether, on whole of evidence, Crown had proven charge beyond reasonable doubt. Appeal dismissed. Trial judge erred in stating that there was insufficient evidence to establish first element of Carter test, that conspiracy existed. Even assuming that trial judge would have concluded that accused was probably member of conspiracy, hearsay statement that Crown relied on would not have changed result. Hearsay conversation relied upon by Crown was, at best, ambiguous as to whether it implicated accused. While conversation did reference delivery of drugs, which was followed immediately thereafter by placing of drugs in accused’s car, conversation was also reasonably capable of meaning that drugs were to be delivered to someone with name different from that of accused. Crown did not satisfy court that there was “reasonable degree of certainty” that outcome of trial would have been different but for error of law. Trial judge did not improperly apply reasonable doubt standard to each piece of evidence. Trial judge was cognizant of proper test to be applied, and merely pointed out frailties in Crown’s case. Trial judge did not err in consideration of evidence.

R. v. Kaizer (Sep. 11, 2013, Ont. C.A., S.T. Goudge J.A., J.M. Simmons J.A., and M. Tulloch J.A., File No. CA C55578) 108 W.C.B. (2d) 420.

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