IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Terezakis, |
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2006 BCSC 11 |
Date: 20060104
Docket: 22716
Registry: Vancouver
Regina
v.
Anthony Terezakis
and
Andrew Goosen
Before: The Honourable Madam Justice H. Holmes
Ruling re Reconsideration of Videotape Evidence
| Counsel for the Crown: |
P.W. Hogg |
| Counsel for Defendant Terezakis: |
P.A. Smith-Gander |
| Counsel for Defendant Goosen: |
M.A. Nathanson |
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Date and Place of Ruling: |
January 4, 2006 |
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Vancouver, B.C. |
THE ISSUES
[1] The August 11, 2005 ruling (2005 BCSC 1174) as to the admissibility of certain videotapes in the trial must be reconsidered in light of my December 8, 2005 ruling (2005 BCSC 1727) that s. 467.13 of the Criminal Code is constitutionally invalid. Mr. Terezakis is charged in count one with an offence under s. 467.13 and the videotape evidence was to be tendered in part in support of that charge, which will no longer proceed.
[2] Defence counsel ask that the reconsideration also take into account Crown counsel’s recent decision not to call in the trial the only anticipated Crown witness as to the making of the videotapes or the events shown in them.
[3] Ms. Smith-Gander for Mr. Terezakis renews her application to reopen the voir dire concerning the admissibility of the videotape evidence to permit the defence to call evidence as to the circumstances in which the videotapes were made. Mr. Nathanson for Mr. Goosen joins in that application.
[4] Counsel also addressed whether, if admitted, the videotape evidence should be edited to exclude certain inflammatory portions and to reduce the burden on the jury of viewing the full approximately 13 hours.
BACKGROUND TO THE ISSUES
[5] The indictment charges three groups of offences alleged to have been committed during the periods indicated below:
1. count 1: the offence under s. 467.13, charging that Mr. Terezakis directed a criminal organization in the trafficking of heroin and cocaine
dates: February 4, 2002 through August 7, 2003
2. counts 2-4: offences related to trafficking in cocaine and heroin, charged against Mr. Terezakis and Mr. Goosen jointly
dates: February 4, 2002 through October 10, 2002
3. counts 7-18: assaults (some with a weapon) and unlawful confinements of numerous people, some charged against both Mr. Terezakis and Mr. Goosen (counts 7-11) and some charged against Mr. Terezakis alone (counts 12-18); for brevity I will refer to these charges as alleging “assaults/confinements”
dates: they vary, but all fall within the period between February 4, 2002 and August 7, 2003 and the Crown expects the evidence to establish that they were all committed in May 2003.
[6] The videotape evidence is described in the August 11 ruling at ¶8-12. In brief, the seven videotapes appear to have been made at the direction of Mr. Terezakis with Mr. Goosen’s assistance and to show the two of them visiting residents and others in the American Hotel and the Cobalt Hotel across the street, presenting people with bibles, and on several occasions subjecting certain individuals to brief or prolonged assaults or interrogations.
[7] In its submissions before the August 11 ruling, the Crown sought to tender the videotape evidence in relation to the count 1 criminal organization offence under s. 467.13 and the counts 7-18 assaults/confinements.
[8] The Crown does not seek to tender the videotape evidence in support of the drug-trafficking charges in counts 2-4. The background to and reasons for the Crown’s position are set out in the extensive discussions between the Court and counsel in a pre-trial conference on August 17, 2005.
[9] The videotape evidence is unusual in that, as regards the assaults/confinements (considered in isolation), it must “speak” entirely for itself if it is to have relevance in the trial. The Crown will call no evidence at all as to the making of the videotapes or as to the events which appear to be depicted in them. At the time of the August 11 ruling, the Crown anticipated calling as a witness in the trial one of the alleged victims named in the charges, but has since determined not to do so. Thus the videotape evidence would provide the only evidence in the Crown’s case that the victims named in counts 7-18 were subjected to assaults/confinements.
[10] As I discussed in the August 11 ruling, defence counsel challenged on several bases the ability of the videotape evidence to speak for itself. Among these bases was that the videotape evidence lacks context from which the jury may determine whether the videotapes depict real (rather than staged) events or agreed (rather than non-consensual) beatings and confinements. I agreed with the defence that in light of the Crown case as described above, “[i]n relation to the assault/confinement charges in isolation . . . the sole guide to the purport of the videotapes is their own content” (¶64).
[11] However, I noted that the alleged assaults and confinements shown in the videotapes were tendered also as evidence to support the charge in count one that Mr. Terezakis directed a criminal organization in drug-trafficking activity, and that the Crown would lead other evidence in the trial to support those allegations:
[75] Mr. Hogg states, and I accept, that the Crown expects to tender evidence of the following: undercover purchases of drugs from the "chair" in the hotel; seizures of documents including apparent drug trafficking debt lists from rooms in the hotel; off-site seizures of large quantities of drugs and of drug packaging and trafficking paraphernalia from associates of Mr. Terezakis and alleged members of the criminal organization; and wiretap interceptions of communications between Mr. Terezakis and others consistent with drug trafficking activity, and in some of which Mr. Terezakis directs others to carry out drug trafficking activity.
[12] I concluded that that evidence would provide a backdrop from which a properly instructed jury could reasonably conclude that the videotape evidence depicts real, rather than staged, events, and that the videotape evidence is therefore capable of being relevant to the charges in counts 1 and 7-18 if that other evidence is called.
[13] I determined the videotape evidence to be conditionally admissible “on the understanding that the Crown will tender in the trial other evidence supporting the allegation that Mr. Terezakis directed a criminal organization in the trafficking of cocaine and heroin out of the American Hotel” (¶91).
[14] Count one, which makes exactly that allegation, will not proceed because of the ruling that s. 467.13 is constitutionally invalid.
DISCUSSION OF ADMISSIBILITY
[15] Ms. Smith-Gander submits that the former basis for admission of the videotape evidence is eviscerated with the constitutional ruling that the criminal organizations offence in count one cannot proceed, because the allegations in support of count one were necessary to (by the Crown’s theory) give context and therefore relevance to the otherwise unexplained depictions in the videotapes. She notes that the videotape evidence was ruled conditionally admissible on the basis that evidence providing that backdrop would be called, and submits that without count one the backdrop will be unavailable and nothing will enable the videotapes to speak for themselves as evidence of real, rather than fictitious, events.
[16] Mr. Nathanson submits that many aspects of the evidentiary backdrop which the Crown contends cast light on the depicted assaults/confinements are in fact irrelevant to the proof of counts 7-18, because those counts charge general intent offences for which proof of motive is not necessary. He submits that in any event the removal of count one from the trial dramatically shifts the balance between the potential probative value of the videotape evidence and its prejudicial effect and requires the exclusion of the evidence.
[17] I am unable to agree.
[18] The criminal organization charge in count 1 was never to have been the only basis for the admission of the evidence that Mr. Terezakis and Mr. Goosen ran or engaged in a drug-trafficking operation out of the American Hotel. All of the drug-related evidence, as described in ¶75 quoted above, that was to have been tendered in support of count 1 is also tendered in support of the drug-related offences in counts 2-4 (with the exception of evidence of some wiretap interceptions of communications after the alleged period of those offences). The evidentiary backdrop from which a properly instructed jury could reasonably conclude that the videotapes depict real, rather than staged events, will be available whether or not count 1 proceeds.
[19] The Crown’s theory is that Mr. Terezakis and Mr. Goosen ran or engaged in an organized drug-trafficking operation and relied on assaults and other offences against the person to induce or enforce the cooperation of others. On that basis, it will be open to the jury to view the evidence supporting the drug-trafficking offences as providing the context for the assaults/confinements, including the reason or motive for those alleged offences.
[20] The fact that the offences of assault and unlawful confinement do not require proof of motive is immaterial. Motive, or the reason for the alleged offence, may be one of the features of the larger evidentiary context to the offence that helps the trier of fact determine whether the required elements of the offence are proven.
[21] It is true that the drug-trafficking offences in counts 2-4 are alleged to have been committed over a period ending in October 2002, which is several months before the assaults/confinements charged in counts 7-18 are alleged to have started. However, that does not prevent the evidence supporting the drug-trafficking offences having relevance to the later assaults/confinements. The lapse of time will simply be a factor in the jury’s consideration of whether and to what extent the evidence of a drug-trafficking operation over the earlier period provides context to the alleged assaults/confinements said to be depicted in the videotape evidence.
[22] Mr. Nathanson is correct in his submission that to the extent that the evidence invites the jury to conclude that Mr. Terezakis and Mr. Goosen continued in drug-trafficking activity beyond the period alleged in counts 2-4 it is evidence of their criminal conduct not charged as such, and is therefore evidence of bad character. That is true, but it does not require the exclusion of the evidence. The evidence has potential probative value of some significance. Its prejudicial effect on the jury’s perception of the character of Mr. Terezakis and Mr. Goosen flows only from its suggestion that they engaged in the drug-trafficking activity for a longer period than is alleged in counts 2-4. That effect can be addressed by way of jury instruction.
[23] The Crown’s recent decision not to call as a witness in the trial the single alleged victim it previously intended to call does not change the reasoning behind or the conclusion of my previous ruling, which addressed the videotape evidence on the basis that it would be required to “speak for itself” as regards the alleged assaults/confinements.
[24] Neither the constitutional ruling nor the Crown’s recent decision not to call the witness mentioned above affect the basis for my decision not to reopen the voir dire to permit defence evidence as to the circumstances in which the videotapes were made. Those circumstances will be for the jury to consider and, as necessary, determine in the trial.
CONCLUSION AS TO ADMISSIBILITY
[25] The videotape evidence is therefore admissible on the basis described in the August 11 ruling.
SHOULD THE VIDEOTAPES BE EDITED?
[26] The videotapes run for a total of about 13 hours. Large portions do not depict assaults/confinements and instead show, as mentioned above, Mr. Terezakis assisted by Mr. Goosen proceeding from room to room in the hotels giving bibles to individual residents, following up on their reading of the scriptures, and in some instances offering emotional or other comfort.
[27] Mr. Hogg submits that most of the videotape evidence is necessary as context for the portions apparently showing the assaults/confinements, but allows that some scenes could be abbreviated or deleted from the jury’s view.
[28] Mr. Nathanson submits that the jury should see only the portions apparently depicting the assaults/confinements charged in counts 7-18, and that the remaining portions are either inflammatory (as discussed in the August 11 ruling at ¶81-90) or irrelevant.
[29] I find most persuasive the position of Ms. Smith-Gander in this regard. She submits that the videotapes should be shown in their entirety because their provenance and integrity are in issue and are to be deduced from the videotape evidence itself. As discussed in the August 11 ruling, the videotapes have no obvious organization or sequence and include abrupt cuts and taping-over. As Mr. Hogg submits, some scenes beyond those that apparently directly depict the assaults/confinements are relevant as context to the alleged assaults/confinements. To show only some or portions of the already fragmented collection of scenes in the videotape evidence would be to potentially mislead the jury. The jury will be asked to infer the meaning or purport of some of the scenes from the videotape evidence itself, and should be given the complete body of available evidence from which to do so.
[30] The videotape evidence should therefore be shown in its entirety.
“H. Holmes, J.”
The Honourable Madam Justice H. Holmes
June 25, 2008 – Revised Judgment
This Ruling re: Reconsideration of Videotape Evidence of Madam Justice H. Holmes dated January 4, 2006 has been edited for publication purposes pursuant to the Inherent Jurisdiction of the Court.