R. v. Alkhalil

2022 BCSC 939 R. v. Alkhalil

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Alkhalil, 2022 BCSC 939 Date: 20220607 Docket: 27393-163 Registry: Vancouver Regina v. Rabih Alkhalil (a.k.a. Robby Alkhalil) and Larry Ronald Amero Restriction on Publication: A publication ban has been mandatorily imposed under s. 648(1) of the Criminal Code of Canada, restricting the publication, broadcasting or transmission in any way of any portion of the trial at which the jury is not present. This publication ban applies until the jury retires to consider its verdict Before: The Honourable Justice Maisonville Ruling re Application No. 163 - Admissibility of Message 81 Counsel for the Crown: M. Sheardown S. Dworkin A. Cochrane N. Gregoire D. Darby A. La Bar Counsel for the Accused, Rabih Alkhalil (a.k.a. Robby Alkhalil): R.S. Fowler, Q.C. K. Blok Counsel for the Accused, Larry Ronald Amero: M. Rock J. Oppal Place and Dates of Trial/Hearing: Vancouver, B.C. May 27, 31, June 2, 2022 Place and Date of Ruling: Vancouver, B.C. June 7, 2022 introduction [1] The Crown seeks an order that portions of message string 81 are admissible under the documents in possession rule as a party admission and/or as original circumstantial evidence to establish knowledge of or complicity with its contents. [2] Larry Amero contests the application, arguing that the disputed messages are inadmissible hearsay.

THE DISPUTED MESSAGES AND THE POSITIONS OF THE PARTIES [3] The messages at issue are the two highlighted in the exchange below. The preceding messages are included because it is the position of Mr. Amero that this context is necessary to properly understand the meaning of the narrow exchange at issue. The messages that follow the exchange are included because the Crown relies on them in arguing that the disputed messages were adopted. 2012-07-21 23:38:21 R: 386018256 E:25823 Nug Dropper Aladin 5:51 PM Who we give lawyer money too for Chino SoSa Birdman 6:51 PM Cuz knows his parents. So give to Cus Nug Dropper Aladin 6:53 PM K who payin this SoSa Birdman 7:38:21 PM EDT/ 4:38:21 PM POT) Ask little. He's dealing with it I think 2012-07-23 00:43:00 R: 393774024 E:26402 Russel

DONALD COLLINS 8:36 PM We. Gona drop paper for chino lawyer? He was asking. Donald tntCollins Russel Carbon Singer Birdman 8:38 PM Yeah, Need 8K dropped to cuz p for lawyer Birdman Terminator (6.43:00 PM EDT/ 3:43:00 PM PDT) K 2012-07-25 01:38:16 R: 35105972 E:27986 Birdman Nineseven big 7:38:16 PM EDT/ 4:38:16 PM PDT) Hey bro wats cuz new one 9 gonna drop 8 k for legal fees for Buddy 2012-08-02 23:39:54 R: 149398432 E:34663 Birdman Dalton 2:10 PM Ya u ever get that 8 k for buddy legal bills Dalton Cuz Birdman 7:34 PM Nope Birdman Dalton 4:36 PM Weirs told someone drop to u assumed done Dalton Cuz Birdman 7:38 PM Nope. Haven't heard anything Someone buzzed me that day but I was smashing some goof out that day. And we never touched base again Lost his email I Just remembered now Birdman Terminator (4:39:48 PM EDT/1:39:48 PM PDT) K I tell them 2012-08-02 23:55:26 R: 150153460 E:34691 Birdman Dalton 4:48 PM Never gave u money cause u never reply to his message he gonna try u again Dalton Cuz Birdman 7:50 PM Yep I was busy collecting my own he just called. Birdman Dalton 4:51 PM Kk Dalton Cuz Birdman 7:38 PM Thanks ill get it to his parents tonight Birdman Dalton (4:39:48 PM EDT/1:39:48 PM PDT) Np 2012-08-03 12:34:25 R: 317456620 E:34892 Nineseven Aladin Donald Collins Aug 2, 2012 9:22 PM Buddy that drove for V for the wall center will b home monday SoSa Donald tnt

Collins Birdman Aug 3, 2012 2:45 PM Do we have his paycheck? The driver? Nug Dropper Aladin Aug 3, 2012 (8:34:25 AM EDT/5:34:25 AM PDT) I been trying to drop 8k for legal bills to Cuz but he didn't reply said busy lol. Think finally dropped ladtnite but idiot didn't even mention if got 2012-08-04 12:12:48 R: 317456620 E:35597 SoSa Birdman Aug 3, 2012 9:39 AM I'll ask him Nug Dropper Aladin Aug 3, 2012 9:46 AM I'm pretty sure your bro hasn't taken care of V he askin for canteen money I told your bro numerous times I gave him address to mail money orders too for him SoSa Birdman Aug 4, 2012 4:10 AM Jeez Man. He can't do that. Nug Dropper Aladin (Aug 4, 2012 8:12:48 AM EDT) Ya I know I try have chat with him today at least cuz has the 8 k for other guy finally 2012-08-04 15:09:09 R: 310260460 E:35599 SoSa Birdman 11:04 AM With what these guys were doing the last thing we need is them thinking we ditched them. I spend countless hours looking for guards to break out V. He's in there with my buddies now. They're taking care of him so he knows shits good and they're super strong in the jail he's in. Give me the info ill send him the money Nug Dropper Aladin 11:09 AM I didn't save it passed to your bro I will try get again 2012-08-05 16:30:29 R: 350662076 E:357979 SoSa Birdman 11:09 AM I didn't save it passed to your bro I will try get again SoSa Birdman Aug 4, 2012 11:18 AM I promised

him in mex if he goes to pen I'm gonna spend 200k breaking him out lol. I have a plan guys will guarantee him out they said if he gets transferred to pen here. Nug Dropper Aladin Aug 4, 2012 12:14 PM Nice let's get poor guy canteen for now hear case is weak SoSa Birdman Aug 4, 2012 9:05 PM He's with my guys now lol. He's surrounded with my other hitters. Lol. All off them run the place. Nug Dropper Aladin Aug 4, 2012 9:34 PM Perfect needs some money SoSa Birdman Aug 5, 2012 (10:30:29 AM EDT/7:30:29 AM PDT) Ill take care of it. [4] It is the theory of the Crown that Donald Collins is Rabih Alkhalil, Nug Dropper and Birdman are both Mr. Amero, "V" is Dean Wiwchar, and Chino is Philip Ley. [5] The Crown relies on the documents in possession rule and contends that the disputed messages (together with Nug Dropper's response) are admissible either for their truth as an admission or as circumstantial evidence that Birdman and, therefore Mr. Amero, was involved in the murder of Sandip Duhre at the Wall Centre. [6] With respect to the former, the Crown submits that the two disputed messages must be considered together since the "his" in the second message is a reference back to the person who drove for V at the Wall Centre in the first. It says that although the message from Nug Dropper, "I been trying to drop 8 k for legal bills to cuz but he didn't reply said been busy lol. Think

finally dropped ladnite but idiot didn't even mention if got" is not precisely responsive to the question about having the driver's paycheck, the fact of reply supports an inference that the two preceding messages were read. Further, the message refers to payment of money to a third party, which is the same general topic of conversation. According to the Crown, at a minimum this suggests recognition of the messages, which is sufficient to permit an inference of assent to their truth. [7] The Crown says that the second portion of conversation, starting with "What these guys were doing " and Nug Dropper's responses culminating with "Perfect needs some money" indicate that he is engaged in arranging for money to be sent to V to avoid the risk that "those guys" will think "we ditched them". Collectively, the messages are evidence of attempts by Birdman to keep V and the "other guy" on side by providing them with money to ensure they do not do anything to compromise their position. According to the Crown, the overall tenor and subject matter of the messages show that they are related to the earlier messages about a paycheck for the driver. Thus, this set of messages is capable of being viewed by the jury as Birdman having acted on the first two messages, permitting an inference of adoption of their truth. [8] As for the non-hearsay use of the messages as circumstantial evidence of

knowledge or connection, the Crown contends that probative value flows from the fact that the disputed messages were sent to the Birdman device. It says that the fact Birdman was one of two recipients of a message inquiring whether "we" have the paycheck for V's driver from the Wall centre supports an inference that Birdman was involved in the murder of Mr. Duhre at the Wall Centre. Given the evidence capable of supporting an inference that Mr. Amero was the user of the Birdman device, its relevance is manifest. [9] Mr. Amero argues that read in context, the disputed exchange does not bear the meaning the Crown ascribes to it. The discussion about paying $8k for legal bills began on July 21, long before the August 2-4 exchange in question. He also highlights the third and fourth messages where Nug Dropper asked Aladin/SoSa who is paying, to which the latter responded "Ask little. He's dealing with it I think". Mr. Amero contends that this is relevant in showing that payment was not the responsibility of Birdman but of someone else. [10] Mr. Amero submits that Birdman's response to the disputed messages is clearly about money for legal fees, not paying a getaway driver. He says that the notion that payment for such services would be outstanding and the subject of discussion in August in relation to a killing that took place in January is highly unlikely, and that simply because

Buddy is referred to as the driver for V at the Wall Centre does not mean that he did not drive V around for other purposes. Mr. Amero also argues that importantly, the messages were not sent to Birdman; rather, they were forwarded to him as a second recipient. [11] In light of the foregoing, Mr. Amero submits that there simply is no basis for the Crown's submission that Birdman recognized, adopted or acted on the disputed messages.

DISCUSSION [12] In the context of the narrow exchange in question, the message from Nug Dropper to Aladin is not in dispute. Rather, it is the incoming messages that provide context and, therefore, probative value to that message that are. [13] The Crown relies on the documents in possession rule as the basis for admissibility of the disputed messages. As the Court explained in R. v. Bridgman, 2017 ONCA 940, this rule, which applies to both paper and electronic documents, permits the admission of documents in two different circumstances for two different purposes. The Court wrote (at para. 69): First, the rule allows for the admission of documents found in personal, constructive or joint possession of an accused as original circumstantial evidence of their contents to establish the accused's connection to or complicity in the matter to which the documents relate: Ansari, at para.

116. Second, where evidence exists that the accused has recognized, adopted or acted upon the documents found in possession, the documents may be admitted as an exception to the hearsay rule, allowing the trier of fact to consider them for the truth of their contents. As noted in B.C. Securities Comm., at p. 33, "if the party in possession has recognized, adopted or acted on the document an admission of acceptance of its contents as true may be inferred." [14] While I do not understand it to be in dispute for purposes of this application, I am satisfied that there is some evidence that Mr. Amero was in possession of the Birdman device at the material time so as to engage the documents in possession rule. The fact that the device was seized from a bedroom associated to Mr. Amero alone is sufficient. [15] The Crown here relies on both branches of the documents in possession rule. I will consider the second aspect first. [16] Text messages can become admissions for proof of their contents where the accused has adopted the statement (with the additional requirement that the document must be found in the accused's possession). Adoption only occurs where the accused expressly or impliedly assents to the truth of the statement. As the Court in Bridgman discussed at paras. 87-89, the mere act of receiving a message on one's electronic devices does not constitute the act of adoption.

Nor does simply reading it. Rather, the accused must recognize, adopt or act on the message in some fashion. [17] In regards the disputed messages, Birdman did not simply receive them; he responded to them, implying that he had also read them. While, as Mr. Amero argues, the message appears to be about the payment of "Cuz's" legal bills and, accordingly, is not directly responsive to the query about the paycheck for "buddy that drove for V", it does concern the same general topic of the payment of money owed to others. Importantly, Birdman's very next message in the exchange refers to the failure of Aladin's bro to take care of V, who was asking for canteen money. Further messages are then exchanged about the need to take care of V. Collectively, they are related to the initial messages about payment to buddy who drove for V, and are further support for the inference that Birdman had read the incoming messages and "acted" on them by responding. [18] The additional messages that Mr. Amero highlights in his submissions add further context but do not, in my view, alter the fundamental nature of Birdman's response to the forwarded email about the paycheck for the driver. It is certainly open to him to put these messages before the jury to provide this additional context should he wish. [19] Of course, whether Mr. Amero authored the texts sent from the Birdman device is one of the

pivotal issues at trial but it is not disputed on this application that there is some evidence capable of supporting this inference. [20] Accordingly, I am satisfied there is sufficient evidence from which the jury could reasonably infer that Mr. Amero assented to the truth of the disputed messages. If they do, the messages are admissible for their truth. [21] The second branch of the documents in possession rule upon which the Crown also relies permits use of the documents as original circumstantial evidence to show the possessor's connection or complicity in a matter. This is a non-hearsay use of the evidence. [22] R. v. Black, 2014 BCCA 192 is an example of the application of this branch of the rule. There, a handwritten note found in an outbuilding that housed a grow operation was addressed to "Chrissy" (the accused's first name was Christina) and contained what appeared to be a "to do" list of tasks related to the grow operation. In concluding that the trial judge had not erred in admitting the note as circumstantial evidence of the involvement of Chrissy, found by the trial judge to be the accused, the Court wrote (at para. 39): The inference of the appellant's involvement in the grow operation does not derive from whether it is true that the upstairs short plants should be moved downstairs or that she "knew how to set" something and should "just keep on hitting the set

button". It is derived from the location of the Note in the outbuilding, containing a list of tasks to do in relation to the grow operation which occupied the whole of the outbuilding, to which the appellant was one of a few people who had access and to whom the Note was addressed. [23] In the case at bar, there is probative value in the fact that Birdman was sent messages inquiring as to whether "we" have the paycheck for V's driver from the Wall Centre. As the Crown submits, Birdman's receipt of the messages tends to support the inference that Birdman was a member of the conspiracy to murder Mr. Duhre. To make that inquiry of a non-participant would not be logical as it would risk exposing Aladin/SoSa/Dax's involvement to someone outside the conspiracy. This use of the disputed messages does not depend on their truth. [24] I am satisfied that the disputed messages are also admissible as circumstantial evidence of Birdman's connection to or complicity in the Duhre conspiracy. As noted, there is evidence capable of supporting an inference that the user of the Birdman device was Mr. Amero. As this use of the messages constitutes after the fact conduct, it will be necessary to instruct the jury how to approach the evidence in this regard.

CONCLUSION [25] The disputed messages are admissible on both bases advanced by the Crown. "Maisonville J."