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EVIDENCE - Hearsay rule - Exceptions - Co-conspirators or agency

Thursday, March 05, 2020 @ 9:22 AM  


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Trial of Shorey, charged with two counts of trafficking in cocaine. The bulk of the evidence came from a police agent, Gaffney, who represented himself to targets in the operation as a well-connected person in the illicit drug culture. Freeman sold cocaine to Gaffney on three occasions in January and February 2017. Freeman pleaded guilty and was sentenced. He did not testify directly. The evidence came from Gaffney based on his recollection and notes from hours of surreptitiously recorded conversations between Freeman and Gaffney. The intercepted evidence purported to indicate that Freeman discussed with Gaffney details of Freeman’s drug dealing enterprise and Shorey’s alleged involvement in it as Freeman’s assistant and/or partner. The Crown sought to have Freeman’s intercepted communications with Gaffney admitted into evidence against Shorey under the co-actor’s exception to the hearsay rule.

HELD: Shorey found guilty. The Court applied the Carter test. The Court was satisfied beyond a reasonable doubt that there was a common unlawful design between Gaffney and Freeman to traffic in cocaine. Shorey was probably a participant in the common design to traffic in cocaine, and Freeman’s hearsay statements were in furtherance of the unlawful common design to traffic drugs. Accordingly, those statements were admissible against Shorey for the truth of their contents. It was not necessary to proceed with a “Vetrovec caution” for either Freeman or Gaffney.

R. v. Shorey, [2020] O.J. No. 39, Ontario Superior Court of Justice, W.U. Tausendfreund J., January 7, 2020. Digest No. TLD-March22020008