Law Times

PAGE 4 Exceptions to hearsay rule It's a tale of two verdicts in Barrie BY TRACY McLAUGHLIN For Law Times BARRIE — Two different verdicts — same crime. Lyle Niemi, recently con- victed and sentenced to 14 years in prison for importing a quar- ter-ton of cocaine into Canada, clearly would have preferred the first verdict handed down to him in 2004 by Justice Alfred Stong. In that trial by judge alone, Ni- emi, 45, a pilot from Bradford who operated his own private air charter, collapsed and fell to the floor like a dead weight out of the sheer stress of it all, as Stong read his lengthy reasons for the acquittal. Now, almost five years later, after an appeal was granted for the Crown, Niemi sat before a jury after a new trial and looked bewildered as the foreman read off a guilty verdict, causing his wife and family to burst into sobs in the courtroom — a stark contrast to the whoops and cheers of joy they let out at the first verdict. There was never any ques- tion that Niemi was the pilot of the small twin-engine jet that touched down at the Lake Simcoe Regional Airport, just north of Barrie, on Nov. 7, 2001. And, there was no ques- tion that his plane was loaded with nine heavy, black hockey bags filled with 269 kilograms of cocaine and 17 kilograms of hashish. It remains Ontario's largest cocaine seizure. Undercover RCMP officers who had Niemi and other players under surveillance over the previ- ous months watched as Niemi took the plane to the end of the runway, out of sight of the terminal, near a back road where men unloaded the drugs in a flurry of activity. The question was, did Lyle Niemi know that his plane was loaded with drugs and was he forced to fly the plane from Ja- maica under threat by known drug kingpin Dean Roberts, who is now serving time in prison. Key to the difference between the two trials was wiretap evidence. In the recent trial, the jury lis- tened to dozens of RCMP wire- tapped telephone conversations between Niemi and other drug cronies involved in the drug scheme. They talked in code or vague terms which Niemi always somehow understood. But in the first trial, Stong McKELLAR STRUCTURED SETTLEMENTS INC. would like to thank all those who took part in THE 10th ANNUAL McKELLAR CHARITY GOLF DAY on Monday, June 16th, 2008. This event raised $16,500.00 for WICC (Women in Insurance Cancer Crusade) for use and support in their fight against cancer. A special thanks goes out to our sponsors for this event: PLATINUM SPONSOR FINANCIAL HORIZONSGROUP GOLD SPONSORS AIG LIFE INSURANCE COMPANY OF CANADA MANULIFE INVESTMENTS THE CANADA LIFE ASSURANCE COMPANY THE STANDARD LIFE ASSURANCE COMPANY OF CANADA SILVER SPONSOR SUNLIFE ASSURANCE COMPANY OF CANADA and to our other generous sponsor THERIORDONDESIGN GROUPINC. We appreciate your support! threw out the wiretap evidence, ruling it was inadmissible against Niemi. Stong concluded Niemi was not a part of the ongoing conspiracy to import the drugs into Canada, and therefore the wiretaps were hearsay evidence. But the Court of Appeal found Stong was wrong, stating: "The trial judge erred by placing weight on irrelevant matters in reasoning that Niemi was not a member of the conspiracy." Specifying the exceptions to the hearsay rule, the Court of Appeal noted: "Hearsay state- ments of co-conspirators are admissible under this exception where: (1) it has been established beyond a reasonable doubt that a conspiracy existed; (2) the evi- dence directly admissible against the accused establishes, on a bal- ance of probabilities, that the accused was a member of the con- spiracy; and, (3) the statements were made in furtherance of the conspiracy." One such "irrelevant" ex- ample is where Stong conclud- ed that Niemi was "in no way an essential component to the criminal scheme alleged," sim- ply because other pilots would have flown the plane if Niemi were not available. To that, the appeal court said: "Whether Niemi was an essential component of the criminal scheme is irrelevant to whether he was a member of the conspiracy." Stong also threw out state- ments by Niemi himself, ruling they too, were inadmissible. In one highly incriminating wiretapped conversation the day before the drug-laden plane landed, Niemi tells his boyhood friend and sales assistant Darcy Roy: "You have to pick up two hockey players — and their bags . . . just meet them at the gate on the sixth line." "Yup, no problem-o," answers Roy. Niemi tells Roy to lie to custom officials that the plane is coming from Florida, not Jamaica. Then he advises Roy to wear an orange ball cap and to meet the "hockey players" where the runway inter- sects at the sixth line — precisely where Roy was arrested by the RCMP swat team the next day. Stong ruled that entire conver- sation was inadmissible because of his conclusion that Niemi was not part of the conspiracy. "This ruling is in error," stated the Court of Appeal. "Whether Niemi was or was not a member of the conspiracy, does not affect the admissibility of Niemi's own statements. His alleged member- ship in a conspiracy is only rel- evant . . . to the admissibility of the statements made by the other parties under the co-conspirators' exception to the hearsay rule." In contrast to the first trial, Jus- tice Margaret Eberhard allowed the jury to hear all of the evidence, then carefully instructed jurors on the exceptions to the hearsay rule, while allowing them far more flex- ibility than Stong used. "It is like a partnership in crime," she explained in her charge. "An accused may be a member of the scheme from the beginning or become a member later . . . or without knowing all the details of the agreement . . . or if that person agrees to play only a minor part or role in the scheme. What is essential, how- ever, is that the person has an understanding of the unlawful nature of the plan." During three days of delibera- tions, the jury seemed to grapple with the duress issue after hearing evidence that Niemi may have been threatened to fly the plane. But Eberhard instructed that even if they believed that threats took place, they must not acquit if they found that Niemi volun- tarily was a member of an illegal scheme that put him in the po- sition where he was likely to be subjected to threats. After the verdict, Eberhard, who called the crime of import- ing cocaine "a cancer on society," expressed great faith in the jury's ability, noting, "This was a very engaged jury . . . capable of deal- ing with complex issues." 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