R. v. Mapara (S.) (2005), 211 B.C.A.C. 1 (SCC);
349 W.A.C. 1
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2005] B.C.A.C. TBEd. AP.076
Sameer Mapara (appellant) v. Her Majesty The Queen (respondent) and Attorney General of Canada and Attorney General of Ontario (intervenors)
(29750; 2005 SCC 23; 2005 CSC 23)
Indexed As: R. v. Mapara (S.) et al.
Supreme Court of Canada
McLachlin, C.J.C., Bastarache, Binnie, LeBel, Fish, Abella and Charron, JJ.
April 27, 2005.
Summary:
The accused (Mapara and Chow) were convicted of first degree murder following a trial by judge and jury. The accused appealed their convictions.
The British Columbia Court of Appeal, in a judgment reported (2003), 179 B.C.A.C. 92; 295 W.A.C. 92; 2003 BCCA 131, dismissed the appeals. Mapara appealed on the grounds that (1) the trial judge improperly admitted double hearsay evidence and (2) the trial judge should have excluded wiretap evidence from trial as it did not fall within the terms of the authorization.
The Supreme Court of Canada dismissed the appeal. The hearsay was admissible under the co-conspirators’ exception to the hearsay rule and the wiretap evidence was lawfully intercepted.
Criminal Law – Topic 2682
Attempts, conspiracies, accessories and parties – Conspiracies – Conspirator’s exception to hearsay rule – The co-conspirators’ exception to the hearsay rule provided that “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” – An accused requested that the exception, in the case of double hearsay, be revisited in light of the principled approach to hearsay – The accused submitted that all hearsay evidence, even that falling under a traditional exception, must be found to be both necessary and reliable to be admitted – Co-conspirators’ statements were admissible against an accused if the conspiracy was proved beyond a reasonable doubt and there was independent evidence, directly admissible against the accused, that established on a balance of probabilities that the accused was a member of the conspiracy (Carter rule) – The Supreme Court of Canada held that “the conditions of the Carter rule provide sufficient circumstantial guarantees of trustworthiness necessary to permit the evidence to be received. … the co-conspirators’ exception to the hearsay rule meets the requirements of the principled approach to the hearsay rule and should be affirmed” – See paragraphs 5 to 31.
Criminal Law – Topic 2682
Attempts, conspiracies, accessories and parties – Conspiracies – Conspirator’s exception to hearsay rule – Mapara, Chow, Wasfi and Shoemaker were jointly charged with first degree murder – Mapara alleged that the trial judge erred in admitting a conversation between an accomplice (Binahmad) and Wasfi wherein Wasfi told Binahmad that Mapara said he wanted the victim killed – He alleged the evidence was unreliable because (1) of double hearsay; (2) Wasfi was a known liar; (3) of conflict in Binahmad’s evidence and (4) Binahmad’s motive to lie to secure his immunity – The Supreme Court of Canada affirmed that the double hearsay statement was admissible under the co-conspirators’ exception to the hearsay rule – This was not “one of those rare cases where evidence falling within a valid exception to the hearsay rule should nevertheless not be admitted because the required indicia of necessity and reliability are lacking” – See paragraphs 5 to 37.
Criminal Law – Topic 5273.1
Evidence – Witnesses – Interception of private communications (incl. video surveillance) – Minimization – Mapara, Chow, Wasfi and Shoemaker were jointly charged with first degree murder – Mapara’s telephone conversations were intercepted although he was not named in any wiretap authorization – Mapara alleged that the person monitoring the calls (in manual mode) should have stopped listening as soon as she ascertained that Chow (the named target) was no longer speaking (minimization) – The British Columbia Court of Appeal held that the conversation was properly intercepted because it was a three-way conversation between Chow, Mapara and Wasfi – The Supreme Court of Canada agreed that the interception was lawful because it was a three-way conversation and the terms of the authorization where not exceeded where Chow remained a party to the communication – Even if there was an unlawful interception, it would not be of sufficient seriousness to engage an inquiry under s. 24(2) of the Charter into whether the conduct brought the administration of justice into disrepute – See paragraphs 38 to 41.
Criminal Law – Topic 5297
Evidence – Witnesses – Admissibility of private communications – Admissible interceptions – “Lawfully made” – Mapara, Chow, Wasfi and Shoemaker were jointly charged with first degree murder – Mapara’s telephone conversations were intercepted although he was not named in any wiretap authorization – The British Columbia Court of Appeal held that Mapara’s words were lawfully intercepted because Chow, a named target in an authorization, initiated and participated in a three-way conversation involving Chow, Mapara and Wasfi – The Supreme Court of Canada held that the court did not err in finding that there was a lawful interception – See paragraphs 38 to 41.
Evidence – Topic 1500
Hearsay rule – General principles and definitions – Definition and general rule – The Supreme Court of Canada stated that “the following framework emerges for considering the admissibility of hearsay evidence: (a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions to the hearsay rule remain presumptively in place. (b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by the principled approach. The exception can be modified as necessary to bring it into compliance. (c) In ‘rare cases’, evidence falling within an existing exception may be excluded because the indicia of necessity and reliability are lacking in the particular circumstances of the case. (d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity are established on a voir dire.” – See paragraph 15.
Evidence – Topic 1527
Hearsay rule – Exceptions and exclusions – General – Where admission of hearsay necessary and evidence reliable – [See both
Criminal Law – Topic 2682
].
Cases Noticed:
R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142, refd to. [paras. 7, 45].
R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [paras. 11, 43].
R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 12].
R. v. Chang (A.) and Kullman (G.) (2003), 170 O.A.C. 37; 173 C.C.C.(3d) 397 (C.A.), refd to. [paras. 18, 44].
R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81, refd to. [para. 20].
R. v. Pilarinos (D.) et al., [2002] B.C.T.C. 855; 2 C.R.(6th) 273; 2002 BCSC 855, refd to. [para. 44].
R. v. F.J.U., [1995] 3 S.C.R. 764; 186 N.R. 365; 85 O.A.C. 321, refd to. [para. 45].
R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 46].
R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81, refd to. [para. 46].
R. v. Ticknovich (N.M.) (2003), 343 A.R. 243; 2003 ABQB 854, refd to. [para. 48].
R. v. Duncan (W.S.) (2002), 168 Man.R.(2d) 184; 1 C.R.(6th) 265 (Prov. Ct.), refd to. [para. 48].
R. v. Hape (L.R.) et al., [2002] O.T.C. 46 (Sup. Ct.), refd to. [para. 61].
Authors and Works Noticed:
Archibald, Bruce P., The Canadian Hearsay Revolution: Is Half a Loaf Better Than No Loaf at All? (2000), 25 Queen’s L.J. 1, p. 49 [para. 49].
Goode, Matthew R., Criminal Conspiracy in Canada (1975), p. 252 [para. 49].
Layton, David, R. v. Pilarinos: Evaluating the Co-conspirators or Joint Venture Exception to the Hearsay Rule (2002), 2 C.R.(6th) 293, pp. 303 [para. 49]; 304 [para. 52].
Paciocco, David M., and Stuesser, Lee, The Law of Evidence (3rd Ed. 2002), pp. 95, 96 [para. 15].
Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), p. 303 [para. 8].
Stewart, Hamish, Hearsay after Starr (2002), 7 Can. Crim. L.R. 5, pp. 15, 16 [para. 49].
Stuart, Don, Canadian Criminal Law: A Treatise (4th Ed. 2001), p. 682 [para. 49].
Whitzman, Stephen, Proof of Conspiracy: The Co-conspirator’s Exception to the Hearsay Rule (1985-1986), 28 Crim. L.Q. 203, p. 205 [para. 49].
Counsel:
Gil D. McKinnon, Q.C., Tom Arbogast and Letitia Sears, for the appellant;
John M. Gordon, for the respondent;
Robert W. Hubbard and Marion V. Fortune-Stone, for the intervenor, Attorney General of Canada;
Jamie Klukach and Susan Magotiaux, for the intervenor, Attorney General of Ontario.
Solicitors of Record:
Gil D. McKinnon, Vancouver, B.C., for the appellant;
Ministry of the Attorney General of British Columbia, Vancouver, B.C., for the respondent;
Attorney General of Canada, Toronto, Ontario, for the intervenor, Attorney General of Canada;
Ministry of the Attorney General of Ontario, Toronto, Ontario, for the intervenor, Attorney General of Ontario.
This appeal was heard on December 16, 2004, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Fish, Abella and Charron, JJ., of the Supreme Court of Canada.
On April 27, 2005, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:
McLachlin, C.J.C. (Bastarache, Binnie, Abella and Charron, JJ., concurring) – see paragraphs 1 to 42;
LeBel, J. (Fish, J., concurring) – see paragraphs 43 to 64.
