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Evidence - Hearsay - Co-conspirator's Exception (2). R. v. Jaser
In R. v. Jaser (Ont CA, 2024) the Ontario Court of Appeal dismissed a terrorism-related criminal appeal.
Here the court reviews a trial judge's jury charge on the co-conspirator exception to the hearsay rule:[222] The trial judge next turned to the hearsay rule. He described the rule and certain exceptions to the rule, including the co-conspirator exception to the hearsay rule. The trial judge gave the jury the classic three-step explanation of the operation of the co-conspirator exception laid down in Carter, at p. 947. That instruction is appropriate, sometimes with modifications, even if the conspiracy allegations involve a two-person conspiracy: see R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, at pp. 742-43;[8] R. v. Bogiatzis, 2010 ONCA 902, 285 C.C.C. (3d) 437, at paras. 29, 55-60; R. v. Puddicombe, 2013 ONCA 506, 299 C.C.C. (3d) 543, at paras. 84-88, 91-94, leave to appeal refused, [2013] S.C.C.A. No. 496.
[223] The trial judge explained in some detail each of the three steps in the Carter process and the evidence relevant to each step. We do not understand Mr. Jaser to challenge the substance of the Carter instructions. However, he does submit that those instructions should have been given after, and separate from, the instructions on the elements of the conspiracy offences.
[224] The trial judge’s Carter instructions can be summarized as follows:Step One
The Crown must prove beyond a reasonable doubt that one or both of the alleged conspiracies between Mr. Jaser and Mr. Esseghaier existed. The jury were to make that determination based on an assessment of all of the evidence relevant to the question of whether the conspiracy existed, including acts and statements of both accused. The jury was instructed not to decide whether Mr. Jaser or Mr. Esseghaier were a member of the conspiracies at this stage, and reminded that Mr. El Noury was only pretending and could not be a conspirator.
Step Two
The Crown must prove that Mr. Jaser and Mr. Esseghaier were probably members of the conspiracies alleged based on their own acts and declarations when viewed in the context of the entirety of the evidence.
Step Three
If the Crown proved the existence of the alleged conspiracy (step one), and that Mr. Jaser and Mr. Esseghaier were probably members of the alleged conspiracy (step two), then the acts and statements of either accused, if in furtherance of the conspiracy, were admissible against both to determine whether the Crown had proven the charge beyond a reasonable doubt. [225] The first step in the Carter instruction targets the existence of the agreement as charged and not membership of any particular person in that agreement. Steps two and three of the Carter instruction focus on membership in the agreement. The jury addresses steps two and three only if satisfied beyond a reasonable doubt that the agreement charged existed based on the entirety of the relevant evidence. Membership is determined first by looking at the evidence directly admissible against an individual accused and, if that evidence meets the probable membership standard, going on to consider, with the benefit of any admissible hearsay evidence, whether the Crown has proved membership in the conspiracy by a specific accused beyond a reasonable doubt. In some cases, the evidence considered at step one of the Carter test will be very different from the evidence available to the jury in respect of a particular accused at steps two and three of the Carter instruction: see Barrow, at pp. 741-43; R. v. Nguyen, 2020 ABCA 345, 13 Alta. L.R. (7th) 215, at paras. 23-26.
[226] The trial judge concluded his instruction on the co-conspirator exception to the hearsay rule with a very strong caution against conflating the first step, which looks to the existence of the agreement, and steps two and three, which look to individual membership in the conspiracy. The trial judge told the jury that the danger of improperly conflating the two inquiries was particularly strong when, as in this case, the Crown alleged a two-person conspiracy. He put the caution in these blunt terms:It might seem logical to you, that if you have been satisfied beyond a reasonable doubt (at step one) that an agreement or conspiracy existed between two persons, it must then follow that Esseghaier and Jaser were the two persons who entered into that agreement or conspiracy (either on a standard of probability at step two or on a standard of proof beyond a reasonable doubt at step three). Whatever logic might say to you on this point, I instruct you that it is not the law… It is not the law because, as I explained to you, the evidence you are entitled to consider on the first question, that is whether the agreement or conspiracy existed, and the evidence you are entitled to consider on the second and third questions, that is whether Mr. Jaser and/or Mr. Esseghaier entered into or joined that agreement or conspiracy, is quite different. Step one you look at all the evidence and you’re considering it as non-hearsay evidence inferring whether there was an agreement or not. At step two you’re looking at it for its truth and it only goes in against the maker. So they’re quite distinct bodies of evidence being used for different purposes in relation to different issues. So the logic of logic is wrong on this, the logic of the law is right. You’ve got different issues and different bodies of evidence and that’s why you’ve got to keep them separate.
You could come to different answers to these questions because you will be considering different bodies of evidence and deciding different issues when you’re considering each of these questions at step one and step two. Different bodies of evidence, different standards of persuasion, different issues ...
I want to stress that you cannot simply jump from the conclusion that an agreement existed (at step one) to the conclusion that the Crown has proved beyond a reasonable doubt that Mr. Jaser and/or Mr. Esseghaier entered into or joined that agreement or conspiracy (at step three). [227] The trial judge repeated the caution on at least two other occasions during his instructions. The trial judge’s caution reflects the language used in Bogiatzis, at para. 57, and the model charge provided in Appendix A of Puddicombe: see also paras. 91-94. . R. v. Dracea
In R. v. Dracea (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal, here considering the "co-conspirator’s exception to the hearsay rule":[4] During the trial, the Crown sought to invoke the co-conspirator’s exception to the hearsay rule to use intercepted hearsay statements made by Mr. Ursino and the unindicted co-conspirator, Richard Avanes, as evidence of Mr. Dracea’s guilt. The trial judge therefore had to direct the jury on the analytical framework for the co-conspirator’s exception set out in R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938.
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[7] It is necessary to begin by describing the material features of the Carter analysis. In the circumstances of this case, in order to use the statements of alleged co-conspirators as hearsay evidence against Mr. Dracea, step one of that analysis would require the Crown to satisfy jurors beyond a reasonable doubt, on all of the evidence, that there was indeed a conspiracy between at least two people to import cocaine: Carter, at p. 947. Even with that accomplished, before statements made by alleged co-conspirators could be used against Mr. Dracea, step two would require the Crown to go on and satisfy jurors on the balance of probabilities, based solely on the evidence of Mr. Dracea’s own acts and words, that he was a member of that conspiracy: Carter, at p. 947. Only if the Crown satisfied steps one and two could jurors then go on, at step three, to consider statements made in furtherance of the conspiracy by other probable members of that conspiracy in deciding whether the Crown had proved beyond a reasonable doubt that Mr. Dracea was a member of that conspiracy: Carter, at p. 947.
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