Ontario Court of Justice

Between

Her Majesty the Queen

And

[REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED] and [REDACTED]

K. Chasse, B. Funston, A. Harnett, S. Stauffer, P. Burstein, M. Clarke, S. Caramanna, D. Usher, J. Erickson for the accused

D. Boulet for the Crown

Released: May 10, 2005

[REDACTED]

R U L I N G

[1] This is a ruling on an application by the crown to introduce into evidence at this

preliminary inquiry, tape recordings and transcripts of intercepted telephone communications under subsection 540(7) of the Criminal Code.

Background of the Case:

[2] On May 6, 2005, [REDACTED] and 7 others were arraigned on multiple counts

including participation in a criminal organization, weapons and drug charges. Originally the accused before this court were part of a much larger group of individuals, who were arrested as a result of numerous search warrants executed on May 12, 2004 in Toronto, Durham, Peel and York Region. In total, 65 people were arrested and 275 charges were laid. The individuals were sub-divided into three smaller groups, in what has become to be known as "Project Impact". This is one of two preliminary inquiries occurring simultaneously in this courthouse; the third and smallest group has been resolved. While many parties in this case have resolved their matters, Mr. [REDACTED] and the 7 others are before me having elected to be tried by judge and jury with a preliminary inquiry.

[3] At the outset of the preliminary hearing, Mr. Boulet, one of three crown prosecutors

called Detective Sgt. Patrick Monaghan on the voir dire. Detective Sgt. Monaghan was one of the officers in charge this case, which was the result of a combined effort of the Metro Toronto Police Force's Impact Task Force and the Provincial Weapons Enforcement Unit. The Project targeted members of the Malvern Crew and members of a smuggling conspiracy. As a result of obtaining judicially authorized warrants, numerous phone lines were monitored from December 15, 2003 to February 15, 2004. An additional authorization was obtained for intercepts from March 18, 2004 to May 18, 2004. As a result, over 130,000 telephone calls were intercepted and the crown has chosen in the voir dire to highlight 11 calls to demonstrate the process by which the calls were intercepted and the transcripts produced. If the application is successful, the crown intends to introduce approximately 600 calls through transcripts and tapes.

The Issues:

[4] The issues before this court are the following:

(a) Has the crown laid a proper foundation for the admissibility of wiretap transcripts to

satisfy the "trustworthy" and "credible" requirement under subsection 540(7)?

(b) Is the crown precluded from the shortcut available under subsection 540(7), if there

has not been strict compliance with subsection 540(8)?

(c) Is the defence precluded from calling evidence at a preliminary inquiry under the new

amendments?

Evidence on the voir dire:

[5] Sgt. Monaghan testified that as a result of receiving the first judicial authorization in

December 2003, 35 civilian personnel were hired as "monitors" to listen to the intercepted telephone communications or wiretaps. These individuals spoke English and some were fluent in Patois and Chinese. Each monitor read the authorization to understand the scope of the investigation. They were instructed what they were and were not allowed to intercept. The civilian monitors along with police investigators were assigned to the "wire room", which was a restricted area where only authorized personnel were allowed entry. The room was manned 24 hours a day, 7 days a week during the project. Sgt. Monaghan testified he attended the wire room every time he was on duty, received information, gave direction and listened to some calls.

[6] A computer system captured all the calls coming from and going to the various

authorized phone numbers. A civilian monitor sitting and listening had to determine if they were authorized to listen in on the calls. The live monitor noted in his/her log whether the call was "relevant", "irrelevant" or "investigation".

[7] When a call was made or received, a cover page was produced. It listed the following information:

? The name of the person (s) identified by the monitor in the call as the "subjects"

? The date and time of the call;

? The length of the call;

? The authorized phone number or DNR - or dialled number recorded

? The subscriber information, in other words, the address to which the authorized

phone was registered;

? The call direction whether incoming or outgoing;

? The telephone number and subscriber information where available of the party

Who was called or who was placing the call;

? As well as the name of the police services employee who monitored the live

call, transcribed the call, translated and proofed the call. The proofer was to

ensure the accuracy of the call compared to the transcript.

[8] Voice identification was made by various means: self-identification - the caller

referring to himself or being referred to by nickname; matching the callers to police

surveillance; the caller making reference to an event that was monitored by police whereby the individual was stopped and asked to identify himself; and voice comparison. The persons who made the various voice identification and comparisons were not called on the voir dire.

[9] Sgt. Monaghan testified that he has not listened to all of the calls himself and has

not proofread each transcript for accuracy. However, his evidence is that the system is

largely computerized and the civilian employees who listened, produced, transcribed,

translated and proofed the calls were hired because presumably they were qualified for the job and trained sufficiently. He is only personally familiar with one monitor who has over 15 years of experience. In most cases, the monitoring officer has his or her work checked by a "transcribing officer", whose work is checked in turn by a "proofing officer", whose job it is to proof read for errors.

[10] Counsel through their cross examination of Sgt. Monaghan attempted to prove

flaws in the cover pages of many of the calls. For example, some cover pages failed to

properly list the names of the various monitors and their positions; in some cases, the "live monitor", "transcribing officer" and "proofing officer" was the same person; and sometimes the wrong phone number was listed. The inference being that the errors on the cover page reflected poorly on the quality of the call monitoring and the accuracy of the transcription and translation of the calls. Counsel argued the transcripts are unreliable and cannot be accepted without the viva voce evidence of the monitors who listened to the calls and prepared the transcripts.

[11] Sgt. Monaghan testified the force lacked the resources to always ensure that

different people checked each other's work. In this case, over 600 transcripts were prepared for the preliminary inquiry with 35 monitors and up to 13 individuals acting as "proofers". Sgt. Monaghan stated in most cases, only 2 or 3 "proofers" are required. In re-examination, crown counsel played the various calls put by defence counsel to Sgt. Monaghan in cross-examination. I find that after hearing the tapes played once in court, the translation and transcription of the calls in the transcripts seemed to be accurate.

Analysis:

(a) Has the crown laid a proper foundation for the admissibility of wiretap transcripts

to satisfy the "trustworthy" and "credible" requirement under subsection 540(7)?

[12] The crown relies on subsection 540 (7) of the Criminal Code, which came into

effect on June 1, 2004 as part of a series of amendments to the preliminary inquiry

provisions of the Code. Subsection 540(7) reads as follows:

"A justice acting under this Part may receive as evidence any information

that would not otherwise be admissible but that the justice considers

credible or trustworthy in the circumstances of the case, including a

statement that is made by a witness in writing or otherwise recorded".

[13] The crown submits the evidence of Sgt. Monaghan provides a basis for the court to

find that the transcripts of the wiretapped calls is "credible and trustworthy" based on the

circumstances of the case, and therefore should be introduced into evidence under subsection 540(7).

[14] The defence submits the crown's evidence on the voir dire falls short of "credible or

trustworthy" to warrant the short cut to admissibility under subsection 540(7). Defence

counsel submit that Sgt. Monaghan's evidence does not establish he has sufficient

knowledge about the individual calls and the identification of the caller. Sgt. Monaghan has listened to some, but not all the calls and has read some but not all the transcripts. He has not identified individual callers nor has he set out any foundation upon which the voice identification was made.

[15] In R. v. Trac, November 23, 2004 ONCJ 370 (Ont. C.J.), Justice Anne Marie Shaw

of this court carefully reviewed the legislative history and the reasons behind the preliminary inquiry amendments. Three of the goals of the legislative amendments applicable to this case are to (a) streamline the preliminary inquiry proceeding, (b) to focus issues on a preliminary inquiry and (c) to limit discovery. Those goals can be achieved in a shortened or condensed preliminary inquiry so long as the evidence tendered meets the threshold test of "credible or trustworthy" depending on the circumstances of the case.

[16] Justice Shaw also concludes in her second last paragraph, the following related to

wiretap evidence:

And finally, regarding the wiretap intercept transcripts, I find that the

Crown can adduce evidence in relation to these matters by calling the

officer in charge or any other officer with direct knowledge of the time,

place and date of the intercepts and the parties indicated on the transcripts.

This officer can provide some evidence to the Court in terms of authenticity

and continuity of this evidence.

[17] During the focus hearings leading up to this preliminary, I expressed reluctance in

allowing the crown to lead evidence through an officer, who would simply tell the court

someone else's opinion as to whom the caller or callers were. I still have that concern. After hearing the evidence of Sgt. Monaghan, I am persuaded that the transcripts are evidence that is credible and trustworthy, in so far as establishing for the preliminary inquiry that conversations between individuals were made and recorded. I accept the officer's evidence that the monitoring system accurately records and stores the date, time, the DNR or dialled number recorded, the subscriber information, call direction, and where possible the other party's telephone number and subscriber information. The information is stored on the "monitor log" and can be retrieved independently. Sgt. Monaghan was shown transcript cover pages and monitor logs and was able to interpret them and assist the court. Sgt. Monaghan also went to the wire room each day he was on duty and checked in the monitoring supervisors and listened to calls himself.

[18] However, in my opinion, the evidence falls short of establishing voice identification

to the extent that based on the transcripts alone I can be satisfied that the persons identified on the cover pages are the individuals speaking on the calls. The fact that one or two or more names of the accused before this court are listed on the cover pages does not establish evidence even on a "credible and trustworthy" basis. The crown will need to satisfy me further by calling police witnesses, surveillance officers, or persons monitoring the calls that the persons named on the cover pages are in fact the voices heard on the tapes. I do not envisage having to hear witnesses on all 600 calls. Rather the crown should be required to lead some evidence to establish how an initial voice identification was made. Subsequent caller identification can be hearsay so long as a proper foundation is laid and the evidence is trustworthy and credible.

[19] The line of cases presented to me at this preliminary inquiry suggest that courts are

reluctant to accept documentary evidence under subsection 540(7) unless accompanied by iva voce evidence of witnesses who can be cross-examined about it in a meaningful way: R. v. Trac (November 23) 2004, ONCJ (Ont. C.J.); R. v. McCormick (February 1) 2005 ONCJ 28 (Ont. C.A.); R. v. Issigatok (January 10), [2005] Nu.J. No. 2, 2005 NUCJ 3 (N.C.J.); R. v. Sonier (March 22) 2005 ONCJ 75 (Ont. C.J.); R. v. C.M. (March 11) 2005 ONCJ 84 (Ont. C.J.); R. v. Bedford (November 1, 2004) (Ont. C.J.), a decision of Justice Fournier.

[20] Finally, I agree with Justice Shaw in Trac, that the appropriate threshold test to be

applied is that which has been applied within the context of bail hearings, sentencing

hearings, and extradition hearings. Justice Dobney, also of this court in the case of R. v.

McCormick (February 1) 2005 ONCJ 28 (Ont. C.J.), at page 7 states the test this way:

I find rather, that the use of the words "credibility" and "trustworthiness"

are used in the same context as section 518 of the Criminal Code, in that the

evidence must have a prima facie air of reliability to allow a court to

consider it as evidence, not sufficient to base a conviction upon, but rather

to warrant consideration as to whether there is some evidence for a jury to

properly consider at trial.

[21] In this case, I am satisfied by the evidence of Sgt. Monaghan that the transcripts of

the tapes satisfies the requirements under subsection 540 (7) of the Code of credible and

trustworthy evidence and may be introduced into evidence on this preliminary inquiry.

However, I do not accept the identification of the parties and the content of the calls

particularly where it involves translation, without further evidence.

(b) Is the crown precluded from the shortcut available under subsection 540(7), if

there has not been strict compliance with subsection 540(8)?

[22] Counsel for Kwok Li, in particular, forcefully argues the crown has failed to comply

with subsection 540(8) by providing defence counsel with some but not all the statements, in this case copies of the transcripts of the calls, the crown intends to introduce along with the notice. Mr. Burstein argues the crown should not be permitted to introduce the transcripts under subsection 540 (7) because of the lack of compliance with subsection (8). Subsection 540(8) reads as follows:

Unless the justice orders otherwise, no information may be received as

evidence under subsection (7) unless the party has given to each of the other

parties reasonable notice of his or her intention to tender it, together with a

copy of the statement, if any, referred to in that subsection (my emphasis).

[23] Counsel submitted that should I allow the crown to introduce the transcripts under

subsection (7), then under subsection (9), I should require the monitors to appear for

examination and cross-examination with respect to the production of the transcripts. It is

likely in view of my earlier ruling on the limited use of the transcripts at this preliminary

inquiry, this argument is likely moot. But since counsel raised the argument, I feel

compelled to address it.

[24] Prior to the start of the preliminary inquiry, counsel was given an "index" of the

calls plus the log entries but did not receive all the transcripts. As can be expected in a case this large, disclosure was and still is an ongoing process. In this case, Mr. Boulet for the crown submits that disclosure was given in advance of the preliminary inquiry. Mr. Burstein for Kwok Li submits disclosure in this case has been virtually "dumped on" the defence by the boxfuls and it is impossible to sort through the material to know what has or has not been received.

[25] I confessed to counsel when this argument was raised for the first time during

submissions on this voir dire, that I believed proper notice under subsection 540(7) and (8) was not in issue. Despite three focus hearings whereby crown counsel clearly stated his intention to introduce the wiretap evidence through a subsection 540(7) application, at no time did any defence counsel raise any issue about timely receipt of transcripts. Crown

counsel produced a transcript of the 2nd of the three focus hearings held before me on April 1, 2005, whereby counsel for Mr. Li, Paul Burstein addressed my question where I asked him whether he had received more than just boxes of wiretap summaries and he said: "With respect to the wiretaps, absolutely. The crown has been superb in providing materials toidentify the tapes. I am talking about all the other items". (page 27, line 20). Further at page 29, Mr. Burstein states: "They don't have to give us new copies, but almost like a notice that says - you know, ‘We're going to rely on' - they told us the intercepts and the transcripts. That's fine, but if they are going to say, ‘we're just going to rely on the exhibit report to show what was seized in the house'. Fine. They probably can under s. 540(7), but they have to at least tell us that that's the document they are referring to".

[26] It would appear crown counsel and I were both mistaken that notice pursuant to

subsection 540(8) was not in issue.

[27] Subsection 540(8) states, "Unless the judge orders otherwise", which means the

preliminary inquiry judge has the discretion to allow evidence under subsection 540(7)

without strict compliance with the notice provisions. Were this the only issue to be decided in this voir dire, I would have ruled in favour of the crown and do not find counsel's submissions on this point persuasive.

(c) Is the defence precluded from calling evidence at a preliminary inquiry under the

new amendments?

[28] Subsection 541 (5) of the Criminal Code does not appear to have been effected by

the introduction of the preliminary inquiry amendments and specifically addresses section

540. Subsection 541(5) states:

The justice shall hear each witness called by the accused who testifies to

any matter relevant to the inquiry, and for the purposes of this subsection,

section 540 applies with such modification as the circumstances require.

[29] Despite the fact that the crown need only present sufficient evidence to make out a

prima facie case to obtain a committal order and order the accused to stand trial, this

subsection is mandatory and the justice does not have a discretion to order that the accused stand trial without giving the accused an opportunity to call witnesses notwithstanding at the time of the crown's case the justice is satisfied there is sufficient evidence to order that the accused stand trial: R v. Ward (1976), 31 C.C.C. (2d) 466.

[30] Failure to allow the accused to call witnesses constitutes jurisdictional error: R. v.

Lena (2001), 158 C.C.C. (3d) 415 (B.C.C.A).

[31] The crown can close its case whenever it chooses, but subsection 541(5) appears to

allow defence counsel the right to call evidence so long as it is relevant to the inquiry with such modification as the circumstances require. I have yet to hear argument as to which, if any, witnesses defence counsel may call once the crown's case is complete. The words "with such modification as the circumstances require", suggests I may have some discretion to allow or limit the witnesses, the scope of their examination, and the kind of evidence they can give, but this has yet to be argued.

[32] I thank counsel for their very helpful arguments. I hope all parties will continue to

cooperate in streamlining the case and can agree on which witnesses will be called.