



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kaizer, 2013 ONCA 546

DATE: 20130911

DOCKET: C55578

Goudge, Simmons and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Christopher Kaizer

Respondent

Geoffrey Roy, for the appellant

Michael Dineen, Duty Counsel

Heard: March 11, 2013

On appeal from the acquittal entered on May 17, 2012 by
    Justice James E. McNamara of the Superior Court of Justice, sitting without a
    jury.

Tulloch J.A.:

OVERVIEW

[1]

The appellant, the Federal Crown, appeals against the acquittal of the respondent,
    Christopher Kaizer, on nine drug-related charges including conspiracy to
    traffic cannabis and marijuana, and possession of cannabis and marijuana for the
    purpose of trafficking.

[2]

The respondent was pulled over by the police and arrested shortly after
    a man named Andrew Wall was seen by police surveillance officers placing a
    duffle bag containing drugs into the trunk of the respondents parked car. The
    trial judge accepted the position of the defence that the Crown failed to prove
    that the respondent knew that there were drugs in the duffle bag. As a result,
    the respondent was acquitted on all charges.

[3]

The Crown appeals the acquittals on the following grounds:

1. The trial judge erred in his
    application of the co-conspirators exception to the hearsay rule by requiring
    that the Crown prove the respondents participation in the conspiracy beyond a
    reasonable doubt at stage one of the
Carter
[1]
test; and

2. The trial judge erred by applying
    the reasonable doubt standard to individual pieces of evidence tendered by the
    Crown, as opposed to determining whether, on the whole of the evidence, the
    Crown had proven possession for the purpose beyond a reasonable doubt

[4]

For the reasons that follow, I do not agree with the appellants
    submissions, and as a result, I would dismiss the appeal.

THE FACTS

[5]

The charges in this case arose out of an R.C.M.P. investigation called
    Project A-Wire. The R.C.M.P. had established, through intercepted
    communications and other techniques, that three individuals, Andrew Wall, Troy
    Saikaley, and someone by the name of Sarsfield, were involved in a drug
    distribution ring. The respondent was not implicated during the course of the initial
    investigation.

[6]

The investigation of these three individuals led the R.C.M.P. to an
    apartment that was used as a stash house, and which was located at 1380
    Prince of Wales Drive in the City of Ottawa. Under the authority of a general
    warrant and wiretap authorization, the police executed a surreptitious search
    of apartment 210 at that address, and installed a probe to intercept
    communications. Inside the apartment, police found significant amounts of what
    they suspected to be cocaine. The police learned, through intercepted
    communications, that Wall was planning to leave the country on November 6
th
,
    2009, so they decided to arrest Wall and Saikaley on November 5
th
,
    2009.

[7]

On November 5
th
, 2009, as the R.C.M.P. were about to take
    down the project, they intercepted a call made between Saikaley and the respondent
    at 2:21 p.m.

[8]

On the call, the respondent and Saikaley arranged to meet outside
    Saikaleys hair salon, known as Suite Thirteen. The lead investigator, Officer
    Goyer, sent two officers to observe that meeting. One of the officers saw the respondent
    and Saikaley meet for about thirty seconds in the parking lot outside Suite Thirteen.
    Saikaley walked out of the salon, met with the respondent, and then they both
    walked toward Saikaleys car to speak. Then Saikaley and the respondent drove
    off in their respective cars.

[9]

About fifteen minutes later, Saikaley called Wall to find out if he was
    alone. Saikaley told Wall that he was literally downstairs, and would be up
    in a couple of minutes. Shortly afterwards, another officer saw Saikaleys car
    pull into the parking lot of 1380 Prince of Wales Drive, and go towards the
    back of the building. The same car left the parking lot about fifteen to twenty
    minutes later.

[10]

While
    Saikaley and Wall were inside the building, the probe inside of apartment 201
    intercepted a conversation between them. The conversation started at 3:15 p.m.
    and lasted approximately eleven minutes. In the middle of the conversation, the
    following exchange occurred:

T. Saikaley: Do I have her number?

A. Wall: Yeah.

T. Saikaley: Lets make sure, now whats his name downstairs?

A. Wall: Whos that?

T. Saikaley: Uh.

A. Wall: That guy.

T. Saikaley: _____ guy

A. Wall: Jay McDougal (ph)?

T. Saikaley: I want you to give him uh, two bags of, two plates
    of big bags, I told him he could pay for them later.  I said (
incomprehensible
). 
    A pack in his _____.

A. Wall: O.K.

T. Saikaley: And get him two hes getting two, uh, pen of uh,
    GH.

[11]

It
    is this hearsay conversation, referencing giving him two bags, that the Crown
    submits the trial judge erred in failing to consider when determining whether
    the respondent, Christopher Kaizer, was, beyond a reasonable doubt, a part of
    the conspiracy.

[12]

While
    this conversation was taking place in the apartment, another officer observed
    Saikaleys vehicle in the parking lot. Approximately ten minutes later, the
    officer saw Wall walk out of 1380 Prince of Wales Drive carrying a green duffle
    bag. He walked over to the respondents car and the car trunk opened, at which
    time Wall placed the duffle bag into the trunk of the respondents car.

THE TRIAL JUDGES REASONS

[13]

After
    reviewing the evidence at trial, the trial judge set out the positions of the
    parties. The position of the defence was that the Crown had failed to prove
    knowledge beyond a reasonable doubt. The position of the Crown was that the
    only reasonable inference arising from the proven facts was that the respondent
    knew what was being put in the trunk.

[14]

The
    trial judge accepted that the starting point for his analysis was the element
    of knowledge. He said:

To have the necessary
mens rea
for any of the offences
    charged, the Crown must establish beyond a reasonable doubt that [the respondent]
    had knowledge that what was placed in his truck that day were the drugs.
Without
    that knowledge, in my view, there is insufficient evidence by which the Crown
    can establish beyond a reasonable doubt the first essential element set forth
    by the Supreme Court of Canada in R. v. Carter, namely that there was a common
    agreement to affect an unlawful purpose as relates to the conspiracy charges,
    nor without that knowledge is there evidence to support a finding of guilt
    beyond a reasonable doubt with relation to the balance of the charges in the
    indictment.
[Emphasis added.]

[15]

The
    trial judge then went on to review the facts and assess the available
    inferences. He concluded that, while suspicious, the facts were not sufficient
    to establish proof beyond a reasonable doubt:

Those proven facts establish that for a relatively brief period
    of time prior to the events of November 5
th
, 2009, there was
    communication between Saikaley and the [respondent]. It consisted of both the
    verbal and the text communications entered in evidence. Not once in the course
    of those communications is the word, drugs, or anything else ever mentioned.
    Next, there is no evidence of what was discussed in the very brief conversation
    on November 5
th
, in front of Suite Thirteen. While we dont know why
    the two of them met, there is evidence that [the respondent] owed Saikeley some
    money. Next, and significantly, despite all the surveillance at 1380 Prince of
    Wales, the [respondent] is never seen there prior to the day in question, nor
    is there any evidence he knew this was a stash house. Further, there is no
    evidence he knew Saikeley and Wall were allegedly in the drug business.
    Finally, there is no fingerprint evidence connecting [the respondent] with the
    drugs. There is the evidence of the bag being placed in the trunk. I am not
    persuaded, however, that the only reasonable inference to be drawn from the
    particular proven facts in this case is that [the respondent] knew the bag
    contained drugs. There is absolutely nothing else connecting him with these
    drugs. Inferences must be carefully distinguished from conjecture or
    speculation. There can be no inference unless there are objective facts from
    which to infer the other fact which it is sought to establish. With the
    presumption of innocence in mind, the evidence, although suspicious, is
    consistent with other inferences.

ANALYSIS

[16]

Before
    considering the basis for the Crowns appeal, a few facts bear noting. First,
    the respondent was not a subject of the police investigation when the search
    warrant was issued, and the respondent had not been seen in any of the
    surveillance leading up to the search warrant. The respondent was not heard on
    any of the intercepted communications. Up until shortly before his arrest, the respondent
    was not even on the radar with regard to the drug offences.

(1)

Did the trial judge err in his application of the co-conspirators
    exception to the hearsay rule?

[17]

The
    Crown points out that counsel for the respondent conceded that a conspiracy
    existed, at least as between Wall and Saikaley. As a result, the first step of
    the co-conspirators exception to the hearsay rule, namely that the trier of
    fact must first be satisfied beyond a reasonable doubt that the alleged
    conspiracy in fact existed, had been conceded:
R. v. Carter
.

[18]

Because
    of that concession, the Crown submits that the trial judge erred when he stated
    without that knowledge [of the drugs], in my view, there is insufficient
    evidence by which the Crown can establish beyond a reasonable doubt the first
    essential element set forth by the Supreme Court of Canada in
R. v. Carter
,
    namely that there was a common agreement to affect an unlawful purpose as
    relates to the conspiracy charges, nor without that knowledge is there evidence
    to support a finding of guilt beyond a reasonable doubt with relation to the
    balance of the charges in the Indictment.

[19]

The
    Crown contends that, as a result of this error, the trial judge erred in failing
    to consider the second and third steps of the
Carter
test. Had he done
    so, he would inevitably have concluded, based on the evidence directly
    admissible against the respondent, that the respondent was probably a member of
    the conspiracy (step two of
Carter
), and further, based on all the
    evidence, including the hearsay statement of the alleged co-conspirators, that
    the respondent was a member of the conspiracy beyond a reasonable doubt (step
    three of
Carter
).

[20]

I
    acknowledge that, the trial judge erred in stating that there was insufficient
    evidence to establish the first element of the
Carter
test  which is
    that a conspiracy existed. As I have said, that issue was conceded.

[21]

However,
    even assuming the trial judge would have reached the conclusion, at the second
    step of the
Carter
test, that the respondent was probably a member of
    the conspiracy based on the evidence directly admissible against him, I am not
    persuaded that the hearsay statement the Crown relies on would have changed the
    result in this case.

[22]

The
    hearsay conversation the Crown relies on was, at best, ambiguous as to whether
    it implicated the respondent. While the conversation did reference the delivery
    of drugs, which was followed immediately thereafter by the placing of the drugs
    in the respondents car, the conversation is also reasonably capable of meaning
    that the drugs were to be delivered to someone with a name different from that
    of the respondent. The trial judge concluded his reasons by noting that the
    evidence, although suspicious is consistent with other reasonable inferences. In
    my view, there is no basis for concluding that the ambiguous hearsay
    conversation relied on by the Crown would likely have changed that result.

[23]

The
    Crown has not met the heavy onus it faces on appeal, to satisfy this court that
    there is a reasonable degree of certainty that the outcome of the trial would
    have been different but for an error of law:
R. v. Youvarajah
, 2013
    SCC 41, at para. 32,
R. v. Berbeck
, 2013 ONCA 241, at para. 14.
    Accordingly, I would not give effect to this ground of appeal.

(2)

Did the trial judge err in his application of the reasonable doubt
    standard?

[24]

The
    Crowns second ground of appeal is that the trial judge erred by individually
    discounting several pieces of the evidence against the respondent. In effect,
    the Crown submits that rather than considering the totality of the evidence
    when determining if the Crown met its burden, the trial judge improperly
    applied a reasonable doubt standard to each piece of evidence.

[25]

A
    review of the entire reasons of the trial judge indicates that this was not the
    case. The trial judge stated The position of the Crown on the knowledge issue
    is that on an examination of the evidence as a whole, it is proven beyond a
    reasonable doubt. The trial judge was cognizant of the proper test to be
    applied, but merely pointed out the frailties in the Crowns case, such as the
    facts that the respondent had not been involved in the prior surveillance or
    intercepted communications, that there was no fingerprint evidence connecting
    the respondent with the drugs, and that there was no reference to drugs in any
    of the communications between Saikaley and the respondent.

[26]

As
    a result of the foregoing, I do not find that the trial judge erred in his consideration
    of the evidence and I would not give effect to this ground of appeal.

DISPOSITION

[27]

Based
    on the foregoing reasons, I would dismiss this appeal.

Released: STG September 11, 2013

M. Tulloch J.A.

I agree. S.T. Goudge
    J.A.

I agree. J.M.
    Simmons J.A.





[1]

R. v. Carter
. [1982] 1 S.C.R.
    938.


