



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Prasad, 2022 ONCA 231

DATE: 20220321

DOCKET:
    C66911

Lauwers,
    Pardu and Sossin JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Akshay
    Prasad

Appellant

Ravin Pillay, for the appellant

Kelvin Ramchand, for the respondent

Heard: March 8, 2022 by video
    conference

On appeal from the conviction entered on
    December 20, 2018 and the sentence imposed on May 23, 2019 by Justice David
    Salmers of the Superior Court of Justice.

REASONS
    FOR DECISION

[1]

The appellant was convicted and sentenced for
    two counts of trafficking cocaine. The appellant pursued the conviction appeal
    and abandoned the sentence appeal. The appellant largely contested the trial
    judges factual findings, to which this court owes great deference. We dismiss
    the appeal for the reasons that follow.

(1)

The Factual Context

[2]

In February 2015, as part of a drug enforcement
    investigation, police obtained an authorization to intercept the private
    communications of targets, including Xue Zhong Zhou. On March 18, 2015, the
    appellant and Zhou met in Zhous vehicle for over 20 minutes. Surveillance
    officers observed the meeting. An audio probe installed in the vehicle recorded
    the conversation. On March 19, 2015, the appellant briefly met with Anthony
    Leung and Cuong Lang, who were alleged to be Zhous associates, to take
    delivery of the drugs.

[3]

On April 9, 2015, the appellant and Zhou met
    again in Zhous vehicle. Surveillance officers also observed this meeting,
    which was recorded by an authorized probe.

(2)

The Conviction and the Trial Judges Findings

[4]

The appellant was charged with two counts of
    trafficking cocaine relating to March 19, 2015 (count one) and to April 9, 2015
    (count two).
The trial judge found the appellant guilty
    on both counts.

[5]

On count one, the trial judge found that the recorded
    March 18, 2015 conversation established proof beyond a reasonable doubt of the
    essential elements of trafficking by offer. Before March 18, 2015, police
    surveillance officers had observed Zhou and the appellant multiple times. On
    March 18, 2015, officers saw Zhou in his vehicle and watched the appellant
    enter the vehicle. They were the only occupants. The appellant admitted the
    integrity of the observations, and of police video recordings and photographs.

[6]

The trial judge agreed that the original
    recordings on their own were not sufficiently intelligible to be admissible.
    However, digitally enhanced versions of each recording were prepared by a lay
    expert, and transcripts were prepared from them.

[7]

The trial judge, therefore, found that the
    appellant and Zhou were the only speakers recorded in the March 18, 2015
    conversation. Officer Chris Aiello had listened to Zhous voice on intercepted
    communications and testified that the transcripts correctly identified when
    Zhou and the appellant were each speaking. Officer Ryan Connolly was qualified
    and testified as an expert in the use and sale of cocaine. Relying on the
    original and clarified recordings, the transcripts, and Officer Connollys
    evidence, the trial judge found that the only reasonable inference that could
    be drawn from the March 18, 2015 conversation was that, after negotiations, the
    appellant offered to sell a kilogram of cocaine to Zhou for $53,000 and that he
    intended the offer to be taken seriously by Zhou.

[8]

The trial judge did not accept the Crowns
    theory that the cocaine was delivered on March 19, 2015. The trial judge held
    that intercepted communications from March 19, 2015, to which the appellant was
    not a party, were not admissible as hearsay either under the co-conspirators
    exception or as narrative. Without those communications, the evidence was
    insufficient to establish that cocaine was delivered during the March 19, 2015 meeting
    between Leung and the appellant.

[9]

On count two, the trial judge found that the
    conversation between the appellant and Zhou that took place on April 9, 2015,
    established proof beyond a reasonable doubt of the essential elements of
    trafficking by offer. The appellant entered Zhous vehicle and they were the
    only occupants. They negotiated a cocaine purchase transaction using phrases
    used in the drug trade when talking about cocaine powder and discussing prices
    that could only have been applicable to a cocaine purchase, based on the expert
    evidence. The only reasonable inference was that the appellant offered to sell
    Zhou nine ounces of cocaine for $13,000 or four and a half ounces for $6,500,
    and that he intended the offer to be taken seriously by Zhou.

(3)

Issues on Appeal

[10]

The appellants arguments cluster around three
    issues. The first is the trial judges admission and use of the audio
    recordings and their transcripts. The second is that the expert evidence
    regarding the content of the recorded conversations was not clearly related to
    cocaine, making the conviction unreasonable. The third is that the trial judge
    convicted on an alternative theory of liability not advanced by the Crown, not
    raised with counsel, and which the appellant did not have the opportunity to
    address.

(a)

The Audio Recordings

[11]

The appellant applied to have the audio
    recordings
of March 18, 2015 and April 9, 2015
excluded under s. 24(2) of the
Canadian
    Charter of Rights and Freedoms
. Salmers J. dismissed
    the
Garofoli
application on October 25, 2017, finding that the appellant had not satisfied
    him that there was no basis for issuing the authorization to intercept
    communications, and as such, had not proven a s. 8 breach.
The appellant also applied to have the March 18, 2015 and April 9,
    2015 audio recordings of the intercepted communications excluded from evidence because
    of their poor quality, which inferentially meant that their prejudicial effect
    exceeded their probative value. The trial judge dismissed the application, finding
    that the recordings were relevant and, depending on all of the other evidence,
    might have significant probative value.

[12]

As noted, the trial judge agreed that the original
    recordings on their own were not sufficiently intelligible to be admissible.
    However, digitally enhanced versions of each recording were prepared by a lay
    expert, and transcripts were prepared from them.

[13]

The appellant referred to the expert evidence
    and the possibility that words were lost in the enhancement, or clarification
    exercise. The expert agreed that the digital filter he used to reduce noise
    could remove some audible sounds, particularly within the range of the human
    voice. But that did not happen in this case, as the trial judge found. He
    listened to the original and clarified recordings and found that the clarified
    recordings were virtually identical to the original recordings, and that there
    were no additional or deleted portions of speech in the clarified recordings. We
    see no error in this finding.

[14]

The appellant argues that the trial judge
    impermissibly relied on the evidence of the transcript typist, Christine Solsky,
    whose evidence on the
voir dire
was by agreement
not
admissible as trial evidence. We do not agree that the
    trial judge used Ms. Solskys evidence that way, as becomes clear from the
    discussion that now follows.

[15]

The appellant raises an argument about
    sufficiency of reasons related to this statement by the trial judge:

[T]ranscripts were made of the enhanced or
    clarified recordings and those transcripts were useful to me when trying to
    determine what Zhou and Mr. Prasad were saying in the intercepted March 18,
    2015 conversation. The transcripts of the enhanced or clarified recordings were
    prepared by Christine Solsky, a civilian police employee. Prior to preparing
    the transcripts, she was told that the speakers were Zhou and Mr. Prasad. Prior
    to preparing the transcript, Ms. Solsky heard Zhous voice on recordings from
    the police media library. Zhou and Mr. Prasad have different voices and
    speak English with different accents. Ms. Solsky testified that although it was
    sometimes difficult, she could tell which of Zhou or Mr. Prasad was
    speaking in the recordings. In her preparation of the transcripts, Ms. Solsky
    listened to the recordings many times to attempt to determine what was spoken
    and by whom.

I also listened many times to the recordings.
    Almost, but not always, I agreed with Ms. Solskys transcripts identifications
    of the speakers and what was said. When I found any differences between the
    recordings and the transcripts, either about what was said or by whom, I relied
    on what I heard in the recordings when deciding this case.

Related to the preceding argument,
    the last quoted paragraph makes it abundantly clear that the trial judge did
    not rely substantively on Ms. Solskys evidence.

[16]

The difficulty, asserts the appellant, is that
    the trial judge did not set out in his reasons the differences he found between
    the transcripts and his own interpretation of the audio, which accordingly
    prevents meaningful appellate review. While it would have been preferable for
    the trial judge to have noted the differences, we draw the inference that the
    differences were neither numerous (Almost, but not always, I agreed), nor
    material, or he would have identified and highlighted them. The argument on
    sufficiency of reasons fails. It would have had more force if the appellant had
    identified places where the transcripts and the enhanced recordings might have
    led to confusion, but he did not. We infer that there were none.

(b)

An Unreasonable Verdict

[17]

The appellant argues that the drug-related lingo
    used by the appellant and Zhou in their discussions could not unambiguously be
    related to cocaine. Counsel pointed to several passages to suggest that some
    other drug was also under discussion. The trial judge relied on the expert
    evidence of Officer Connolly, whom he qualified as an expert and who has
    testified on the subject many times.

[18]

The trial judge relied on Officer Connollys
    testimony, and found:

[D]uring the March 18
th
, 2015
    conversation, Zhou and Mr. Prasad began talking about drug trafficking
    almost immediately after Mr. Prasad entered Zhous Honda Accord. They discuss
    money owing by Zhou to Mr. Prasad. Several times during the conversation
    they used the words, key, and brick, very commonly used in the drug trafficking
    subculture to describe a kilogram of powder cocaine. The words were used in a
    context where the only reasonable inference is that Zhou and Mr. Prasad
    were discussing cocaine.

[19]

An important part of the context was the price
    discussed in the conversations on March 18 and on April 9. These are factual
    findings to which this court owes great deference. The appellant has not
    established that the trial judge made any errors in the assessment of the
    expert evidence as applied to the evidence about the transactions between Zhou
    and the appellant. We do not find the verdict unreasonable.

(c)

The Alternative Theory of Liability

[20]

The appellant argues that the trial judge
    convicted on an alternative theory.

[21]

On count one, the trial judge convicted,
    stating:

For all of those reasons, the evidence has
    been proven beyond a reasonable doubt that Mr. Prasad committed the offence of
    trafficking cocaine by offer to Zhou on March 18
th
, 2015. In
    particular, on that day Mr. Prasad offered to traffic a kilogram of cocaine to
    Zhou for $53,000 and he made that offer intending that it would be taken
    seriously by [Zhou]. Count one [has] been proven beyond a reasonable doubt.

[22]

Count one on the indictment referred to trafficking
    on or about March 19, 2015:

THAT Akshay PRASAD, on or about the 19th day
    of March in the year 2015 at the City of Toronto in the Toronto Region did traffic
    in a substance included in Schedule I of the
Controlled Drugs and
    Substances Act
, to wit: cocaine, thereby committing an offence contrary to
    Section 5(1) of the
Controlled Drugs and Substances Act
.

[23]

The appellant argues that it was fundamentally
    unfair for the trial judge to give effect to
an alternative
    theory of liability not advanced by the Crown, not raised
with counsel, and which the appellant did
    not have the opportunity to address. He puts the argument in his factum in the
    following manner:

The appellant respectfully submits that he was
    caught by surprise by the trial judges finding and could not have foreseen a
    conviction on the day prior to the date set out in the indictment based on an
offer
. All parties conducted the trial
    on the basis that the Crown theory was that count 1 alleged the
    trafficking of one kilogram of cocaine on March 19
th
to Leung. Many
    decisions were made during the course of the trial based on that theory
    presented. For example, the defence made numerous concessions, abbreviated
    cross-examinations and, importantly, opted not to call a defence.

[24]

In questioning from the
    bench, the appellant was unable to say how the defence would have differed had
    the focus been on the offer on March 18 rather than on the alleged delivery on
    March 19.

[25]

The Crown pointed out
    that the indictments charging language for both counts is the same: did
    traffic in a substance. The charge covers the whole of the transaction and one
    continuous chain of events. Just as the offer alone was sufficient to support
    the finding that the appellant committed the offence by offer on April 9, so it
    was to commit the offence by offer alone on March 18, even if the delivery on
    March 19 was not proven. The Crown noted that the appellant did not request
    particulars of the charges before the trial. Further, the Crown referred to the
    offer to traffic several times in submissions to the trial judge, so it was no
    surprise to the defence. Trial defence counsel stated: the Crown will say, well
    this is an offer, and its an offer for something that happened on the 19
th
.

[26]

The offer was plainly
    made on March 18, 2015, which in itself completes the offence of trafficking.
    We are unable to discern any prejudice to the appellant in the trial judges
    conviction respecting the offer on March 18, despite the different date
    specified in the indictment. It was a continuous chain of events starting on
    March 18. Consummation by delivery on March 19 was not an essential element.

[27]

The appeal is
    dismissed.

P.
    Lauwers J.A.

G.
    Pardu J.A.

L.
    Sossin J.A.


