R. v. Batista, 2015 BCSC 1088

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Batista, 2015 BCSC 1088 Date: 20150625 Docket: 57683 Registry: Chilliwack Regina v. Shaun Wayne Batista Before: The Honourable Mr. Justice N. Brown Ruling on Voir Dire No. 2 Counsel for the Crown: S.J.K. Gill Counsel for the Accused: G.K. Gill, Q.C. Place and Date of Trial: Chilliwack, B.C. January 19 - 23, 2015 May 19, 2015 Place and Date of Judgment: Chilliwack, B.C.

June 25, 2015 INTRODUCTION [ 1 ] Shaun Wayne Batista stands charged that on or about April 6, 2011, at or near Chilliwack, B.C., he unlawfully possessed a controlled substance, cocaine, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. Police searches of the motor vehicle Mr. Batista was driving uncovered a Ziploc bag containing crack cocaine. The police also came into possession of a cell phone providing evidence of drug trafficking.

This voir dire ruling determines the admissibility of an exhibit that contains screen photos the police took of pre-arrest text messages found on the cell phone. It also determines the admissibility of statements made by known and unknown declarants in post-arrest phone calls the police received on the same cell phone and the contents of an in-person conversation with one of the callers. [ 2 ] This is the second voir dire ruling in this case. The first voir dire dealt with alleged breaches of the accused’s ss. 8 and 9 Charter rights: R. v. Batista , 2015 BCSC 244 . In those reasons, I concluded that Mr.

Batista was not arbitrarily detained contrary to s. 9 of the Charter , but that his s. 8 Charter right to be secure against unreasonable search or seizure had been violated by the police search of his motor vehicle incident to arrest. However, I concluded the fruits of that search would not be excluded pursuant to s. 24(2) of the Charter . As for the police search of the cell phone obtained from Mr. Batista, I concluded that as Mr. Batista disclaimed ownership of or a proprietary interest in the cell phone, he did not have a reasonable expectation of privacy in the contents of the cell phone.

FACTUAL BACKGROUND [ 3 ] I provided a detailed account of the circumstances leading to Mr. Batista’s arrest and the charge laid in the first reasons and there is no need to do so again here. I will provide, however, a brief overview to place the issues in this voir dire in context. [ 4 ] Around 23:30 hours on April 5, 2011, Constable Godard of the RCMP approached Mr. Batista, who was sitting alone in the driver’s seat of a Chevrolet Cobalt parked in the McDonald’s parking lot at the intersection of Vedder and Thomas Road. Cst.

Godard had been following the Cobalt for some time after observing the vehicle speeding and Cst. Godard wanted to speak to the driver about his excess speeding. [ 5 ] During the conversation with Mr. Batista, Cst. Godard learned Mr. Batista was not the car owner. The accused told Cst. Godard the car’s owner was his girlfriend’s father, although he told Cst. Godard he did not know either his girlfriend’s or her father’s last name. Cst. Godard asked Mr. Batista if he had a cell phone he could use to find the car owner’s phone number. Mr. Batista stated he did not have a cell phone.

At that very moment, a cell phone on the passenger seat rang. Mr. Batista stated the phone did not belong to him. Cst. Godard asked Mr. Batista to pass the phone to him, thinking he might be able to find contact information for the owner. Mr. Batista handed it to him. [ 6 ] Cst. Godard then conducted a pat-down search of Mr. Batista for officer safety. He then returned to his police vehicle. He could not remember what he did with the cell phone, but put it somewhere to keep it dry. He did not look at the cell phone right away.

Cst. Godard radioed Dispatch and asked for the phone number of the registered owner of the vehicle and CPIC information on Mr. Batista. On receipt of the phone number, he tried the registered owner’s number; it came back as out of service, leaving him without confirmation Mr. Batista had permission to drive the car. As for background on Mr. Batista, he learned that he had been driving while prohibited at the time of his arrest. [ 7 ] Realising he would have to arrest Mr. Batista for driving while prohibited, Cst. Godard radioed for assistance. He was soon joined by Cst. Lane, Cst. Nicholas and Sergeant Bosnell.

At approximately 23:53 hours, Cst. Godard, Cst. Lane and Cst. Nicholson proceeded to arrest Mr. Batista for driving while prohibited. A search of his person revealed $565 in cash, and a search of the vehicle uncovered a Ziploc bag containing crack cocaine. Mr. Batista was arrested for possession for the purpose of trafficking. A. Cell Phone Evidence [ 8 ] Cst. Godard had given the cell phone to Sgt. Bosnell, shortly after Sgt. Bosnell’s arrival on scene. He had advised Sgt. Bosnell the phone had been ringing but he had not answered the calls. After Mr.

Batista was arrested for possession for the purpose of trafficking, Sgt. Bosnell decided to explore the cell phone and its contents, particularly for any text messages. As text messages are time-stamped, the time of any drug transactions, and information of a meeting place or potential buyers, could be revealed. [ 9 ] As Sgt. Bosnell worked his way through incoming and outgoing messages, he mentally noted several texts that referenced meeting places. His review was interrupted by phone calls from buyers. Sgt.

Bosnell believed the cell phone was being used as part of a dial-a-dope drug trafficking operation. [ 10 ] One of several calls, and a text message related to it, from a person who identified as “Autom” was followed up by Sgt. Bosnell and Cst. Nicholson. The text message from “Autom” came at 15:21 hours on April 5, 2011, about four-and-a-half hours before Sgt. Bosnell received the live cell phone call from her at 00:03 hours on April 6, 2011. “Autom’s” text messages and phone call were much the same: she had 12 Percocet pills and wished to purchase $40 worth of drugs. Sgt.

Bosnell confirmed she wished to pay half of that $40 with Percocet pills. He was familiar with the meet location, about 1 kilometre away. The caller said she would bring the Percocet with her. [ 11 ] When the officers pulled into the parking lot at the given location, a female approached their unmarked car, got in, confirmed she was “Autom”, and had $20 and Percocet to close the sale. Sgt. Bosnell advised they were police officers and not the person she expected.

Also explained to her was the fact they had the cell phone, and that they knew she had bought from Shaun before. “Autom”, concerned about her daughter and police involvement, was reluctant to say anything. Sgt. Bosnell explained why they were there, and that they were not necessarily targeting her. He could not recall whether the possibility of her testifying was mentioned, explaining that they were more interested in getting a better understanding of what was going on. Legal concepts such as privilege were not mentioned. Cst.

Nicholson obtained her personal details and she exited the car. [ 12 ] Besides the call from “Autom”, Sgt. Bosnell answered four other calls on April 6, 2011, before shutting off the phone:

(1) A caller at 01:22 hours called looking for “Shane or Shaun”, asking for “40” and giving a meet location. That was not followed up.

(2) A caller at 01:32 hours asked, “Have you picked up the hamburger yet?”, and gave a meet location.

(3) A caller at 01:45 hours, who identified himself as “Wayne”, called looking for half a gram. He was cautious, questioning if Sgt. Bosnell was “Shaun”, stating, “it doesn’t sound like Shaun.” The caller said to meet at the “trailer,” but did not give an address.

(4) Two minutes later, “Wayne” called back, used the name “Shaun”, and asked that he pick up some cigarettes. Sgt. Bosnell tried to connect with “Wayne’s” cell phone number, but it had been disconnected. [ 13 ] As for the text messages, the phone was not a late model or complex. It stored a maximum of 100 incoming messages and 50 outgoing messages. The software on the phone did not interface with programs that allowed downloading of text messages.

Evidence of text messages had to be exhibited through a series of screen photos and sorting of text messages by time and sender, thus requiring painstaking manual adjustment of the cell phone settings. [ 14 ] There is no need to detail all the text messages and times of receipt, but a good number of the texts are consistent with drug trafficking activities. None of the 50 outgoing text messages on the phone state the name of the sender. Of the 100 incoming text messages, two refer to the name “Shaun” (or “Shawn”).

Message 81/100, time-stamped at 2:01 a.m. on April 5, 2011 and from a person inputted in the phone as “Jen”, stated “This shawn or shane? I neeed a half”. The response was set out in outgoing message 49/50, time- stamped at 2:01 a.m. on April 5, 2011, which answered “Shame”. The second incoming text message was message 36/100 and was time- stamped at 6:17 p.m. on April 5, 2011.

It was from a person inputted in the phone as “My Babe” and begins by stating “Shaun I’m having mixed feelings, I feel like you are putting me second with everything your doing.” POSITIONS OF THE PARTIES [ 15 ] The Crown seeks admission of the contents of Sgt. Bosnell’s post-arrest phone call conversations, the in-person conversation with “Autom” and the photographed text messages. The Crown seeks to admit the contents of the phone call conversations and the in- person conversation with “Autom” pursuant to the principled approach to the hearsay rule, as set out in R. v. Baldree , 2013 SCC 35 .

The Crown also referred the Court to R. v. Giroux , 2013 BCPC 275 , where Provincial Court Judge G. Brown admitted the contents of a post- arrest phone call after applying the test set out in Baldree . [ 16 ] As for the text messages, the Crown argues they do not constitute hearsay evidence because the Crown seeks their admission not for the truth of their contents, but rather as circumstantial evidence of the accused’s knowledge of or involvement in the transactions to which they relate. The Crown relies on the rule relating to documents in possession of the accused, referring the Court to R. v. Black ,

2014 BCCA 192 for the general principles of this rule, and to R. v. Howell, 2014 BCSC 2196 for the rule’s application to pre-arrest textmessages on a seized cell phone. [17] The accused disputes the admissibility of the post-arrest phone calls, the in-person conversation with “Autom” and thephotographed text messages. The accused’s position is that he is not the owner of the phone and was not in possession of it whenarrested.

In support of this assertion, counsel for the accused points to the following factors: • the vehicle in which the phone was located was not the accused’s vehicle; • the accused answered “no” when asked by Cst. Godard if he had a cell phone; • the accused did not look at the phone when it rang, but merely handed it over to Cst.

Godard; and • the callers seem to be looking for different people, as they variously ask for “Shane” or “Shaun” (or “Shawn”). [18] The accused then argues that as this was not his phone, the hearsay statements by the post-arrest phone callers are too unreliableto admit them through the principled approach. As for the text messages, Mr. Batista asserts the Crown failed to establish he was inpossession of the phone within the meaning of the authorities. DISCUSSION A. Post-Arrest Phone Calls and Conversation with “Autom” 1.

Legal Principles [19] Baldree is the leading authority on the admissibility of the contents of post-arrest phone calls received by the police on a seizedphone. At para. 30 of Baldree, Mr. Justice Fish explains the defining features of a hearsay statement are: (1) the fact the statement isadduced to prove the truth of its contents and (2) the absence of a contemporaneous opportunity to cross-examine the declarant.

Fish J.outlines four specific concerns related to hearsay evidence at para. 32: [32] First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived,the relevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionallymisleading manner; and finally, the declarant may have knowingly made a false assertion.

The opportunity to fully probe these potentialsources of error arises only if the declarant is present in court and subject to cross-examination. [Emphasis in original.] [20] Post-arrest phone calls tendered for the truth of their contents are presumptively inadmissible. Because such calls do not fall intoa traditional exception to the hearsay rule, they may be admitted only if indicia of reliability and necessity are established on a voir dire:Baldree at para. 67. [21] In Baldree itself, Fish J. determined neither of these indicia was satisfied.

The hearsay statement in Baldree was a single post-arrest telephone call answered by the police. The unidentified caller asked for the accused and for one ounce of weed and gave hisaddress. At para. 69, Fish J. determined that this single call was not sufficiently reliable because there was no basis on which to saywhether the caller’s belief the accused sold drugs was reliable without testing it by cross-examination.

At para. 68, Fish J. determinedthe indicium for necessity was also not met as the police made no effort at all to secure the evidence of the caller, although he had statedhis address, and did not explain why they made no effort to locate the caller. [22] While Fish J. concluded the post-arrest hearsay statement should have been excluded by the trial judge, he made generalstatements about the admissibility of such statements in other cases: [70] In concluding as I have, I take care not to be understood to have proposed a categorical rule for drug purchase calls.

Although thecall at issue here does not withstand scrutiny under the principled approach, this need not always be the case. [71] For example, where the police intercept not one but several drug purchase calls, the quantity of the calls might well suffice insome circumstances to establish reliability — indeed, while “[o]ne or two might [be] mistaken, or might even have conspired to framethe defendant as a dealer”, it would “def[y] belief that all the callers had made the same error or were all party to the same conspiracy”: I.H.

Dennis, The Law of Evidence, (4th ed. 2010), at p. 708. [72] Moreover, the number of callers could also inform necessity. The Crown cannot be expected, where there are numerousdeclarants, to locate and convince most or all to testify at trial, even in the unlikely event that they have supplied their addresses — as inthis case. And it is important to remember that the criteria of necessity and reliability work in tandem: if the reliability of the evidence issufficiently established, the necessity requirement can be relaxed: see Khelawon, at para. 86, citing R. v. B. (K.G.), (SCC), [1993] 1 S.C.R. 740, and R. v.

U. (F.J.), (SCC), [1995] 3 S.C.R. 764. [73] Here, we are presented with a single drug purchase call of uncertain reliability. The caller gave his address. No effort was madeto find and interview him, still less to call him as a witness — where the assertion imputed to him could have been evaluated by the trierof fact in the light of cross-examination and the benefit of observing his demeanour. [Emphasis added.] 2. Determination

[23] The Crown seeks admission of the contents of the post-arrest phone conversations and the in-person conversation with“Autom” for the truth of their contents. Neither “Autom” nor any of the other callers attended to testify. Therefore, all of the calls and thein-person conversation with “Autom” are hearsay.

However, I am satisfied that the calls and the in-person conversation with “Autom”are sufficiently reliable and necessary in this case to be admitted pursuant to the principled approach to the hearsay rule, as stated by FishJ. in Baldree. [24] Unlike the situation in Baldree where there was only one intercepted phone call, there were five post-arrest phone calls in theroughly two hours after the accused’s arrest. Sgt. Bosnell stated this about the calls: • The first call was from “Autom” at 00:03 hours on April 6, 2011 and was followed up with a meet in which “Autom” believed shewas purchasing $40 worth of drugs.

When she got into the unmarked police car, Sgt. Bosnell explained that he and Cst. Nicholson werepolice officers and that they knew she had bought from Shaun before. • The next call was from an unidentified caller at 01:22 hours looking for “Shane or Shaun”, asking for “40” and giving a meetlocation. The call was not followed up. • An unidentified caller at 01:32 hours asked whether he had picked up the “hamburger” yet and gave a meet location.

This callerdid not use any name. • The last two calls came in short succession from a man who identified as “Wayne” and said he was looking for half a gram.“Wayne” asked for “Shaun”, stated “[i]t doesn’t sound like Shaun” and said to meet at the “trailer” without giving more informationabout the “trailer’s” location. [25] The number of calls received in a relatively short timeframe and the meeting with “Autom” sufficiently establishes reliability inthis case.

Particularly relevant is the fact several of the callers refer to the name “Shaun” and express a degree of familiarity that can onlybe explained by previous transactions with “Shaun”. This distinguishes this case from Baldree, where only one call was received andthere was no information for the court to assess the reliability of the caller’s belief that the accused sold drugs. In the case at bar, thequantity and the nature of the calls satisfy me the concerns articulated by Fish J. in Baldree, namely the risks of misperception, memory,narration and sincerity, are greatly minimized.

I do not accept the accused’s blanket assertion that the calls and the conversation with“Autom” are not reliable because it was not Mr. Batista’s phone. The phone was sitting in the passenger seat of the car in whichMr. Batista was the sole occupant. Multiple callers asked for “Shaun”. Moreover, a text message from a person whose contactinformation is inputted in the phone as “My Babe” addresses a text message to “Shaun”. The accused’s argument in this regard is notpersuasive. [26] I am also satisfied the need for necessity has been met in this case.

Unlike in Baldree where the police made no attempt tolocate the single caller, two officers met with “Autom” and conversed with her. Cst. Nicholson obtained “Autom’s” contact informationand the Crown served a subpoena on “Autom”, but she did not appear to testify at the voir dire. Sgt. Bosnell attempted to connect with“Wayne’s” cell phone number after the second call, but it had been disconnected. While the police did not attempt to track down theother potential buyers as witnesses, Sgt.

Bosnell explained that his experience from trying to arrange meetings with callers in other drugtrafficking cases showed they usually are unwilling to cooperate, expressing fear of retaliation and of being stigmatised as a drug user. Iaccept this explanation. [27] The contents of the post-arrest phone calls answered by Sgt. Bosnell and the conversation with “Autom” are admissible for thetruth of their contents. Sgt. Bosnell made careful notes of his conversations with “Autom” and other callers, and he may be cross-examined by the accused at trial. B. Pre-Arrest Text Messages 1.

Legal Principles [28] In Black at para. 40, Madam Justice Levine concluded the Supreme Court of Canada in Baldree did not intend to displace the“documents in possession rule”. The documents in possession rule provides that the “contents of a document found in possession of theaccused may be used as circumstantial evidence of the accused’s involvement in the transactions to which the documents relate”(emphasis added): Black at para. 38. The Crown must establish the document in question was in the accused’s possession.

Possession canbe actual, joint or constructive possession, and it can be inferred from circumstantial evidence: Black at paras. 33 - 34. Levine J.A.outlined the two possible uses of documents found in the possession of the accused as follows: [29] In R. v.

Turlon (1989), (ON CA), 49 C.C.C. (3d) 186 at 190, the Ontario Court of Appeal discussed the rootsof the rule, citing Phipson on Evidence, 13th ed. (1982), para. 21-09: Documents which are, or have been, in the possession of a party will, as we have seen, generally be admissible against him as original(circumstantial) evidence to show his knowledge of their contents, his connection with, or complicity in, the transactions to which theyrelate, or his state of mind with reference thereto.

They will further be receivable against him as admissions (i.e. exceptions to the hearsayrule) to prove the truth of their contents if he has in any way recognized, adopted or acted upon them. [emphasis in original] [29] In the case at bar, the Crown seeks only to admit the text messages for the first purpose. [30] In Black, the document was a to-do list directed to someone with a first name similar to the accused and found inside anoutbuilding dedicated solely to a grow operation from which the police saw the accused exiting.

Levine J.A. concluded the note wasadmissible as circumstantial evidence of the accused’s involvement in the transactions to which the document related. [31] In Howell, Madam Justice Griffin applied the Black analysis to pre-arrest text messages discovered by the police on a phone

seized from the car driven by the accused. The police charged the accused with possession of methamphetamine for the purpose of trafficking. The Crown wanted to introduce a report that set out text messages located on a cell phone seized from the accused’s car. The Crown relied on the doctrine on documents in the possession of the accused to admit the text messages as circumstantial evidence of the accused’s knowledge of or involvement in the transactions to which the texts related.

The accused argued text messages on a phone could not be considered documents in the sense for which this doctrine was intended to apply. [ 32 ] Griffin J. held the text messages constituted documents in possession of the accused and admitted them for the purpose stated by the Crown. At para. 45, she concluded the digital form of the text messages and their sheer quantity were not sufficient reasons not to apply the doctrine for the admissibility of documents in the possession of the accused.

Griffin J. found, at para. 48, that the evidence established the accused was in sufficient possession of the cell phone to support admission of the text message evidence, noting the cell phone was found in the cup holder of the accused’s car, which he was driving. 2. Determination [ 33 ] Despite Mr. Batista’s denial of ownership of the cell phone, the circumstances of the case at bar establish he was in possession of the cell phone. As in Howell , the cell phone was found in the car driven by the accused. Mr. Batista was the sole occupant of the vehicle. While Mr.

Batista was driving someone else’s car and denied having a phone when asked by Cst. Godard, the cell phone was sitting in plain view on the passenger seat on ring mode . After it rang, Mr. Batista knew where the phone was and he handed it to Cst. Godard. Moreover, one of the photographed text messages from a caller inputted as “My Babe” begins their message by addressing it to “Shaun”. [ 34 ] On these facts, I conclude Mr. Batista at the very least had constructive possession of the cell phone and the stored text messages contained therein.

The text messages are admissible for the purpose sought by the Crown, namely as circumstantial evidence of the accused’s knowledge of or involvement in the transactions to which the text messages relate. CONCLUSION [ 35 ] For these reasons, the contents of the post-arrest phone calls answered by Sgt. Bosnell and the in-person conversation with “Autom” are admissible for the truth of their contents. The exhibited text messages are admissible as circumstantial evidence of the accused’s knowledge of or involvement in the transactions to which the text messages relate. “N. Brown J.”