R. v. Mapara (S.) et al., (2005) 332 N.R. 244 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Fish, Abella and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 27, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 332 N.R. 244 (SCC);2005 SCC 23;195 CCC (3d) 225;40 BCLR (4th) 203;[2005] ACS no 23;[2005] 1 SCR 358;332 NR 244;[2005] CarswellBC 963;[2005] 6 WWR 203;211 BCAC 1;[2005] SCJ No 23 (QL);JE 2005-855;251 DLR (4th) 385;28 CR (6th) 1

R. v. Mapara (S.) (2005), 332 N.R. 244 (SCC)

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] N.R. TBEd. AP.027

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.