R. v. Alkhlail

2022 BCSC 561 R. v. Alkhalil

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Alkhalil, 2022 BCSC 561 Date: 20220405 Docket: 27393-132; 27393-140 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 Nos. 132 and 140 - Editing of PGP Messages Counsel for the Crown: M. Sheardown S. Dworkin N. Gregoire A. Cochrane 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 J. Myers Place and Dates of Trial/Hearing: Vancouver, B.C. February 22 and March 18, 2022 Place and Date of Ruling: Vancouver, B.C. April 5, 2022 Introduction [1] The applicants, Rabih Alkhalil and Larry Amero, seek edits to selected PGP messages that the Crown intends to tender at trial on the basis that they are more prejudicial than probative, contain references to inadmissible extrinsic misconduct, and/or contain inadmissible hearsay. Mr. Alkhalil's Application [2] The first messages that Mr.

Allkhalil challenges are Birdman Messages 8 and 10, which, before editing, read as follows: Birdman Message 8: From To 2012-05-24 21:57:57 R: 359789128 M: 3145 MMAfighter Birdman Tomorrow at 4 suk is comming out, he asjking uwant do it or you want him do it Birdman MMAfighter He capable and willing do it for 100 k ? MMAfighter Birdman You have safe house in dot or somewhere, he gonna do whole crew Birdman MMAfighter Ya I can get him place if he does np 2012-05-24 22:04 R: 360132444 M: 3149 MMAfighter Birdman Tomorrow at 4 suk is comming out, he asjking uwant do it or you want him do it Nug Dropper TNT RIDEorDIE [Forwards above messages to TNT and RIDEorDIE] TNT Birdman Can he just do? I sent v to dot Birdman TNT Ya I try Birdman Message 10: From To 2012-05-24 22:36:01 R: 330855500 M: 3183 MMAfighter Birdman Tomorrow at 4pm, at country tires on kinggeorge, between 64 and 68, have your guys ard that hood, go tinight to scope it out, my guy is gonna b their but you guys take care of these goofs, but my guy nneeds strap, he might do it but let's c what happens, Skull MMAfighter My best guy not in van doin job for us. I can get your guy watever he needs if he wants to do it MMAfighter Birdman He gonna do whole crew, cause they tried grip his brother, so when they come, he gonna do it, rather have your out of towners to do it Skull MMAfighter My good guy not in van is the prob. I can

use back up guys MMAfighter Birdman Can u start line up that, some goof name doug came with suk Skull MMAfighter Doug wheeler probly MMAfighter Birdman That tuna gonna b their Skull MMAfighter Perfect [3] Mr. Alkhalil seeks to have the words "I sent v to dot" edited from Message 8, and the words "My best guy not in van doing job for us" and "My good guy not in van is the prob" edited from Message 10. [4] Mr. Alkhalil submits that Birdman Messages 8 and 10, when read together, lead directly to the inference that Waldo, alleged by the Crown to be Mr. Alkhalil, and Birdman, alleged to be Mr. Amero, sent "V", alleged to be Dean Wiwchar, to Toronto to conduct a contract killing. The messages have to be considered in the context of all of the evidence at trial, which notably includes a PGP message to the effect that contract killing is Mr. Wiwchar's "bizness" (see the Court's earlier ruling indexed as 2021 BCSC 1382). Accordingly, Mr. Alkhalil argues that the messages refer to extrinsic misconduct that has no probative value and carries with it significant prejudice. [5] The Crown disputes the characterization of the words as evidence of extrinsic misconduct, and says the words are part of the message itself, which is part of the attempt to kill Mr. Dhak on that date. It says the evidence is relevant to: (a) the intent of the speaker to obtain the tools for the murder (his best

shooter) and make it more probable that Mr. Alkhalil and Mr. Amero were the directing minds; (b) the relationship between V and TNT, alleged to be Mr. Alkhalil; and (c) the fact that TNT and Birdman were endeavouring to marshal the personnel required to kill Mr. Dhak; and, the identity of "V". [6] As for prejudicial effect, the Crown says it is not self-evident that TNT sent V to Toronto to commit another offence, and that, in any event, such prejudice does not outweigh its high probative value. To reduce this prejudice, the Crown proposes editing Birdman Message 10 as follows: From To 2012-05-24 22:36:01 R: 330855500 M: 3183 MMAfighter Birdman Tomorrow at 4pm, at country tires on kinggeorge, between 64 and 68, have your guys ard that hood, go tinight to scope it out, my guy is gonna b their but you guys take care of these goofs, but my guy nneeds strap, he might do it but let's c what happens, Skull MMAfighter My best guy not in van doin job for us. I can get your guy watever he needs if he wants to do it MMAfighter Birdman He gonna do whole crew, cause they tried grip his brother, so when they come, he gonna do it, rather have your out of towners to do it Skull MMAfighter My good guy not in van is the prob. I can use back up guys MMAfighter Birdman Can u start line up that, some goof name doug came with suk Skull MMAfighter Doug wheeler probly MMAfighter Birdman That tuna

gonna b their Skull MMAfighter Perfect [7] The Crown says that any residual prejudice can be addressed by a limiting instruction to the jury, as this Court recognized in an earlier ruling with respect to a PGP message that clearly referred to another murder (see 2021 BCSC 1382 at para. 30). [8] I accept the argument of Mr. Alkhalil that the passages he identifies must be removed from the two messages as they refer to inadmissible extrinsic misconduct for the reasons he advances. [9] Accordingly, Birdman Messages 8 and 10 will be edited to remove those references and will read as follows after editing: Birdman Message 8 From To 2012-05-24 21:57:57 R: 359789128 M: 3145 MMAfighter Birdman Tomorrow at 4 suk is comming out, he asjking uwant do it or you want him do it Birdman MMAfighter He capable and willing do it for 100 k ? MMAfighter Birdman You have safe house in dot or somewhere, he gonna do whole crew Birdman MMAfighter Ya I can get him place if he does np 2012-05-24 22:04 R: 360132444 M: 3149 MMAfighter Birdman Tomorrow at 4 suk is comming out, he asjking uwant do it or you want him do it Nug Dropper TNT RIDEorDIE [Forwards above messages to TNT and RIDEorDIE] TNT Birdman Can he just do? Birdman TNT Ya I try Birdman Message 10 From To 2012-05-24 22:36:01 R: 330855500 M: 3183 MMAfighter Birdman Tomorrow at 4pm, at country tires on kinggeorge, between 64 and 68, have your guys

ard that hood, go tinight to scope it out, my guy is gonna b their but you guys take care of these goofs, but my guy nneeds strap, he might do it but let's c what happens, Skull MMAfighter I can get your guy watever he needs if he wants to do it MMAfighter Birdman He gonna do whole crew, cause they tried grip his brother, so when they come, he gonna do it, rather have your out of towners to do it Skull MMAfighter I can use back up guys MMAfighter Birdman Can u start line up that, some goof name doug came with suk Skull MMAfighter Doug wheeler probly MMAfighter Birdman That tuna gonna b their Skull MMAfighter Perfect [10] The next message Mr. Alkhalil challenges is Birdman Message 83, which, before editing, reads as follows: Birdman Message 83 From To 2012-08-08 16:05:48 91226124 37177

RUSSELPETERS RazorRamon Aug 8, 2012 10:36 AM Classification: ROD Need keys now. Wtf. RazorRamon

RUSSEL SINGER Party Birdman Aug 8, 2012 12:04 PM Yooo man they arrested me for double murder thinking I was coliins .. And then held me until they got him ...They thought I was him .. I'm just getting outta jail RazorRamon

RUSSEL SINGER Timothy.Payne Birdman Murder of Sandip durher And a Italian from dot ! From To 2012-08-08 16:04:12 to 16:08:19 90559996 91226124 91242336 37176 37179

RUSSELPETERS RazorRamon Aug 8, 2012 10:36 AM Classification: ROD Need keys now. Wtf. RazorRamon

RUSSEL SINGER Party Birdman Aug 8, 2012 12:04 PM Yooo man they arrested me for double murder thinking I was coliins .. And then held me until they got him ...They thought I was him ..I'm just getting outta jail

RUSSELPETERS RazorRamon Aug 8, 2012 12:05 PM Classification: ROD Come here now your dead. RazorRamon

RUSSEL SINGER Party Birdman I'm coming .. I got taken down ERT ... Vancouver homicide

RUSSEL SINGER

DONALD COLLINS Birdman Fw above [11] Mr. Alkhalil submits that this message is inadmissible in its entirety since it has no probative value unless relied on for a hearsay purpose. [12] The Crown says that the evidence is admissible for the non-hearsay purpose of identification, that is, as circumstantial evidence that (a) "RazorRamon" is Ricky Mann and (b) RazorRamon said he was arrested by the police mistaking him for "coliins" (coliins meaning collins). It relies on R. v. Evans, [1993] 3 S.C.R. 653 in this regard. [13] In relation to Evans, Mr. Alkhalil made the following submissions: 11. Statements may also be admissible, not for their truth as a hearsay exception, but as circumstantial evidence of identification. In R. v. Evans, 1993 CanLII 86 (SCC), two men robbed a Brinks truck. The appellant was not identified at the scene, but investigation of the getaway vehicle discovered that it had been purchased two days earlier. The sellers could not positively identify the appellant as the purchaser but said the purchaser told them that he worked in chain-link fencing, had big dogs and his dog was going to have pups. Subsequent investigation revealed that the appellant had a large dogs who was going to have pups and had been employed as a chain- link fencer.

12. The majority noted that an out of court statement admitted for the truth of its contents is hearsay; however, an out of court statement tendered not for its truth but simply as proof that the statement was made, is not hearsay and is admissible if it has probative value to an issue in the case. In finding that the statements of the purchaser were admissible for a non-hearsay purpose, the majority stated: The ultimate value of these statements was to prove that the appellant and the purchaser of the getaway car were one and the same person. There was independent proof that the appellant worked as a fencer, and that he owned a large pregnant dog. If the purchaser could be proved to have a large pregnant dog and have worked as a fence installer, this would suggest that the appellant was the purchaser. However, there is no proof that the purchaser owned a dog or worked as a fencer unless the statements made to the Boutets are assumed to be true. The statements cannot be used for the truth of their contents unless they are admissible under an exception to the hearsay rule. That being said, the statements still have some probative value as non-hearsay. Quite apart from the truth of the contents, the statements have some probative value on the issue of identity. On the issue of identity, the fact that certain representations are made is probative as it narrows the identity of the declarant to the group of people who are in a position to make similar representations. The more unique or unusual the representations, the more probative they will be on the issue of identity. I emphasize that the statements are not being used as truth of their contents at this stage.

13. The decision in Evans is clearly limited to the admissibility of declarations as circumstantial evidence of the proof of the identity of the declarant, not a third party. Where the declarant is alleged to be the accused, once this is established, as Evans goes on to explain, the statement is then admissible for its truth as an admission. [14] The non-hearsay purpose identified by the majority in Evans was that it was being tendered to identify the declarant. However, here, the Crown seeks to tender the message as to the truth of its contents being evidence of the identity of a third party--that is Mr. Alkhalil. I find that it is not admissible given Evans limiting admissibility of such declarations where tendered to identify the declarant. For that reason, I agree that the important distinguishing factor is that it is circumstantial evidence of the identity of the declarant. For that reason "coliins" will be removed. However, the remainder of the message is admissible as circumstantial evidence as to the identity of Ricky Mann. [15] I conclude that Birdman Message 83 will be edited as follows: Birdman Message 83: From To 2012-08-08 16:05:48 91226124 37177 RazorRamon

RUSSEL SINGER Party Birdman Aug 8, 2012 12:04 PM Yooo man they arrested me for murder They thought I was him I'm just getting outta jail From To 2012-08-08 16:04:12 to 16:08:19 90559996 91226124 91242336 37176 37179 RazorRamon

RUSSEL SINGER Party Birdman Aug 8, 2012 12:04 PM Yooo man they arrested me for murder..They thought I was him I'm just getting outta jail [16] The final message that Mr. Alkhalil challenges is Waldo Message 51, which, before editing, reads as follows: Waldo Message 51 From To 2012-09-24 06:16:26 R: 46167452 M: 9255 Licious/ CashMoney DogWhisperer/ Carbon 2 The wire says .. That a lenard valentine is gonna smash out bigge when he goes to kent . And they trying to give biggie a heads up to pack a shank for kent DogWhisperer/ Carbon2 Licious/ CashMoney Ya lenard my guy. Did pk for us. Licious/ CashMoney DogWhisperer/ Carbon 2 They said lenard is working out and training to smash em out .. So they gonna try and shivem .. DogWhisperer/ Carbon 2 Licious/ CashMoney Won't happen we run it there dead. Licious/ CashMoney Where-is-Waldo Land Mine WolfPaki/ Slumpaki Wolf-Pack-Hunted? Dog/Whisper/ Carbon2 [Replies to DogWhisper and copies above messages to Where-is-Waldo, Land Mine, WolfPaki and Qolf-Pack-Hunted adding:] We gotta finish there zoofs .. They scared bro .. U should see the shit they saying "We need to survive" "Everyone wants to get us" "we can't go out no more" "how did this happen? We where [sic] on top and now we the ones hunted" Reply to that last quote was "I know its fucked bro" Where-is-Waldo Land

Mine Licious/ CashMoney WolfPaki/ Slumpaki Wolf-Pack- Hunted? Deise/Munitia Surprise boxes! Its time! Do homework on old man let's start with him and than well get mills and Melvin. Find mcbride! Systemically. Anyone know where dips curfew is? [17] Mr. Alkhalil submits that the message refers to a plan or conspiracy to commit the murder of persons other than Mr. Duhre or Mr. Dhak. As such, it refers to extrinsic misconduct evidence that is presumptively inadmissible. He seeks to edit the message by removing, at the very end of the exchange, the words "Do homework on old man let's start with him and than well get mills and Melvin. Find mcbride! Systemically". [18] The Crown accepts the proposed editing except for the words "Find mcbride!", which it says is highly relevant, as the message was sent one month after the Kelowna shooting and the jury will hear that Jason McBride pleaded guilty to the shooting. It says that the connection of the words "Find mcbride" and "dips curfew" supports the Crown's theory that the message writers are looking for them in retaliation for the Kelowna shooting. The prejudicial effect is minimal and can be addressed by means of a jury instruction. [19] I find that the portion of the message to which Mr. Alkhalil objects is evidence of inadmissible extrinsic misconduct. It clearly refers to a separate stand alone matter and the prejudice is not

readily resolved by jury instruction. [20] Accordingly, I am prepared to edit Waldo Message 51 and it will read as follows after editing: Waldo Message 51: From To 2012-09-24 06:16:26 R: 46167452 M: 9255 Licious/ CashMoney DogWhisperer/ Carbon 2 The wire says .. That a lenard valentine is gonna smash out bigge when he goes to kent . And they trying to give biggie a heads up to pack a shank for kent DogWhisperer/ Carbon2 Licious/ CashMoney Ya lenard my guy. Did pk for us. Licious/ CashMoney DogWhisperer/ Carbon 2 They said lenard is working out and training to smash em out .. So they gonna try and shivem .. DogWhisperer/ Carbon 2 Licious/ CashMoney Won't happen we run it there dead. Licious/ CashMoney Where-is-Waldo Land Mine WolfPaki/ Slumpaki Wolf-Pack-Hunted? Dog/Whisper/ Carbon2 [Replies to DogWhisper and copies above messages to Where-is-Waldo, Land Mine, WolfPaki and Qolf-Pack-Hunted adding:] We gotta finish there zoofs .. They scared bro .. U should see the shit they saying "We need to survive" "Everyone wants to get us" "we can't go out no more" "how did this happen? We where [sic] on top and now we the ones hunted" Reply to that last quote was "I know its fucked bro" Where-is-Waldo Land Mine Licious/ CashMoney WolfPaki/ Slumpaki Wolf-Pack- Hunted? Deise/Munitia Surprise boxes! Its time! Anyone know where dips curfew is? Mr. Amero's Application [21] Mr. Amero requests

that PGP messages 4, 5, 6, and 19, which were extracted from the SkullBuster device, be edited. [22] Message 4, before editing, reads as follows: 4. (Source: SKULLBUSTER) From To 2011-10-01 23:23:03 R:82751244 M: 6975 Land Mine Where-is-Waldo 7:00 PM Set up fee ? Where-is-Waldo SkullBuster 4:00 PM Yeah Land Mine Where-is-Waldo 7:02 PM Wat u figure ? We got dip or tom free let's not heat mole yet Where-is-Waldo SkullBuster 4:05 PM 15k? Land Mine Where-is-Waldo 7:07 PM I say don't heat mole yet Where-is-Waldo SkullBuster 4:08 PM + nobody gonna know that's who he was meetin for percs Land Mine Where-is-Waldo 7:09 PM Nice we got 2 diff teams ? Where-is-Waldo SkullBuster 4:21 PM Think so. Who's doin tom? SKullbuster Where-is-Waldo (4:23:03 PM PDT/ 7:23:03 PM EDT) Prob same guys try last time if he there gotta check [23] Message #4 can be edited as follows for the reason that it refers to inadmissible extrinsic misconduct being a separate murder. However, the reference to "dip" will be left in [When it refers to "dip", it is making a reference to Mr. Duhre]. Accordingly, the words "or tom" as well as "Who's doin tom?" are to be removed as follows: 4. (Source: SKULLBUSTER) From To 2011-10-01 23:23:03 R:82751244 M: 6975 Land Mine Where-is-Waldo 7:00 PM Set up fee ? Where-is-Waldo SkullBuster 4:00 PM Yeah Land Mine Where-is-Waldo 7:02 PM Wat u figure ? We got dip free let's not heat

mole yet Where-is-Waldo SkullBuster 4:05 PM 15k? Land Mine Where-is-Waldo 7:07 PM I say don't heat mole yet Where-is-Waldo SkullBuster 4:08 PM + nobody gonna know that's who he was meetin for percs Land Mine Where-is-Waldo 7:09 PM Nice we got 2 diff teams ? Where-is-Waldo SkullBuster 4:21 PM Think so. SKullbuster Where-is-Waldo (4:23:03 PM PDT/ 7:23:03 PM EDT) Prob same guys try last time if he there gotta check [24] Should further edits to be necessary, given my determination that reference to "to tom" should be edited out, counsel have leave to readdress message #4. [25] Message #5 currently reads: 5. (Source: SKULLBUSTER) From To 2011-10-02 02:40:34 R:23566044 M: 6819 WolfPaki SkullBuster Oct 1, 2011 7:27 PM Did you know our car guy flipping shit in oz? SkullBuster WolfPaki Oct 1, 2011 10:29 PM No WolfPaki SkullBuster Oct 1, 2011 7:35 PM Yeah.. He was telling me the last time I seen him when I flew back..he barely answers buzz thou.. Also I think D has a master plan here. He puppet'ed tad to do this. He needs young guns on the street and ear to the street, so he'll use his guys when he gone. Cause milli was talking to someone's girl on zapper and she said speaking for her bf" you guys said you had nothing to do with it, everyone thinks u guys taking fall for someone else and it confirms it since S going to "g" unit( the u.n. Unit) . Milli said no no its newspapers, we didn't

have anything to do with it.. And again she goes . "One night u were all saying its not us not us, and then the next all drunk saying " S and D taking over, gonna run these SkullBuster WolfPaki (Oct 1, 2011 7:40:34 PM PDT/ 10:40:34 PM EDT) Ya car guy useless on berry. Ya u prob right D be easy to get now [26] With respect to message #5, Mr. Amero seeks the removal of the entire message. He argues that it has limited probative value and is inadmissible hearsay. Counsel for Mr. Amero argues that it is inadmissible hearsay: CNSL M. ROCK: So the -- the -- the problem here is that it seems like it's someone that talks about what he heard from someone. The probative value of that is very very very low. And the whole conversation, "Did you know our car guy flipping shit in Oz?" "No." "Yeah, he was telling me the last time I seen him, when I flew back." So the person that's saying that said that someone was telling him that. He barely answers "Buzz though." "Also, I think D has a master plan here." We don't know if it's the person that told Wolfpack. He" -- or "He puppeted Tad to do this. He needs young guns on the street, an ear to the street, so he uses guys when he gone, cause Millie was talking to someone's girl on Zapper." So now he's report -- it seems like he's reporting what Millie said of a discussion that he had with someone's girl on Zapper. And she said speaking for her

boyfriend. So I understand that the Carter test render hearsay admissible under certain circumstances, but over here is basically hearsay that -- that's so far off. It's certainly not a co-conspirator that's talking. [27] The Crown agrees to edit out "flipping shit in oz?" However, I find that the remainder of the message is circumstantial evidence of identification of Mr. Duhre as a target. Message #5 will be edited as follows: 5. (Source: SKULLBUSTER) From To 2011-10-02 02:40:34 R:23566044 M: 6819 WolfPaki SkullBuster Oct 1, 2011 7:27 PM Did you know our car guy ? SkullBuster WolfPaki Oct 1, 2011 10:29 PM No WolfPaki SkullBuster Oct 1, 2011 7:35 PM Yeah.. He was telling me the last time I seen him when I flew back..he barely answers buzz thou.. Also I think D has a master plan here. He puppet'ed tad to do this. He needs young guns on the street and ear to the street, so he'll use his guys when he gone. Cause milli was talking to someone's girl on zapper and she said speaking for her bf" you guys said you had nothing to do with it, everyone thinks u guys taking fall for someone else and it confirms it since S going to "g" unit( the u.n. Unit) . Milli said no no its newspapers, we didn't have anything to do with it.. And again she goes . "One night u were all saying its not us not us, and then the next all drunk saying " S and D taking over, gonna run

these SkullBuster WolfPaki (Oct 1, 2011 7:40:34 PM PDT/ 10:40:34 PM EDT) Ya car guy useless on berry. Ya u prob right D be easy to get now [28] Message #6 has already been the subject of the Court's ruling indexed as 2021 BCSC 1382 when it was identified as message #63. It has already been ruled admissible: 6. (Source: SKULLBUSTER) From To 2011-10-03 17:38:16 R: 77659752 M: 6417 Demon Dallas 8:57 AM hear there is arrests coming from that bacon shooting!, 4 guys??? That's the rumor from the RS guys Dallas BlackRock 9:05 AM [Forwards above message] BlackRock dog food SkullBuster 10:23 AM [Forwards above message] SkullBuster BlackRock 10:28 AM Ya I pretty sure there is too BlackRock dog food SkullBuster 10:32 AM Crazy shit man ! Lol SkullBuster BlackRock dog food (10:38:16 PM EDT) Yup pretty sure undercovers watched it. From To 2011-10-03 17:50:54 R: 77685268 M: 6403 BlackRock dog food SkullBuster 10:39 AM WOW ! SkullBuster BlackRock 10:40 AM Yup BlackRock dog food SkullBuster 10:41 AM That's completely fucked. They still holding Suhk too hey? SkullBuster BlackRock 10:42 AM Yup till trial BlackRock dog food SkullBuster 10:49 AM Days are numbered ! SkullBuster BlackRock dog food (10:50:54 AM PDT) Yup it's a race No reason has been advanced to reopen that ruling. [29] Mr. Amero submits that message #19 is not admissible because it is not in furtherance of a conspiracy: 19. (Source:

SKULLBUSTER) From To 2011-10-10 01:29:48 R: 63994484 M: 4004 Wolf-Pack- Hunted? SkullBuster Oct 9, 2011 6:26 PM My bros lawyer wants to know how you make your living lol. "What does it say on his income tax papers?" S Skull Wolf-Pack-Hunted? Oct 9, 2011 9:28 pm Longhoreman and personal trainer Wolf-Pack-Hunted? SkullBuster (9:29:48 PM EDT/ 6:29:48 PM PDT) Wolfpack ceo [30] I agree with the Crown, however, that the reference to "Wolfpack ceo" is relevant because as Mr. Amero's nickname, it ties him to the Birdman device and therefore has bearing on identifying him as its user. [31] Message #19 will not be edited to delete "ceo". "Maisonville J."