National Post (National Edition)
COURT BATTLE OVER AUSSIE EVIDENCE IN VICE MEDIA COCAINE SMUGGLING RING.
Issues challenge to drug evidence from Australia
A man accused in a plot that used Vice Media's Toronto office to recruit interns, musicians and models into an international cocaine smuggling ring says a law that allows evidence gathered in Australia to be accepted in court in Canada is unconstitutional.
Ali Taki Lalji worked in advertising at Vice, a youth-oriented media company, alongside Yaroslav Pastukhov, once the publication's high-profile music editor who eventually admitted he recruited young people to fly to Australia with bricks of cocaine glued into the lining of their suitcases.
Both men were charged in 2019 with conspiracy to import cocaine, when they no longer worked at Vice, after five people were caught at Sydney airport in 2015 with more than $20 million worth of cocaine in their Samsonite suitcases.
All five of the drug mules eventually pleaded guilty in Australian court and were handed substantial prison terms.
Pastukhov, who was better known under his pen name Slava Pastuk, was revealed by a National Post investigation in 2017 to be recruiting people for cocaine smuggling, whom he knew through his work at Vice.
Pastukhov pleaded guilty and was sentenced last year to nine years in prison.
Lalji, meanwhile, maintains his innocence and is fighting the charge in court.
In the government's bid to prove its case against Lalji, prosecutors submitted a large volume of documents gathered by Australian authorities as part of the successful cases against the five drug mules.
There are police notes, photos, audio and video files, X-ray images of the luggage, statements from 23 Australian Border Force officers and 30 Australian Federal Police officers, transcripts of interviews, exhibit reports, spreadsheets, court hearing transcripts and other information.
In all, there are 91 documents the Crown wants to put before the court that came from Australia.
It was all sent to Canada by the Australian government under the Mutual Legal Assistance in Criminal Matters Act (MLACMA), a law giving Canada the legal authority for reciprocal legal assistance in criminal matters between countries.
The peculiarity of the MLACMA, however, is that it allows evidence gathered in other countries by foreign authorities to be admitted as evidence in court in Canada without the usual process of defence lawyers cross-examining a witness to testify about how the evidence was gathered.
It was likely a practical matter of not requiring a foreign officer to travel to Canada for the routine identification of a photograph or to verify that they did a forensic test and that the report prosecutors have is legitimate.
The act specifically states, however, that the evidence arriving through the MLACMA cannot be deemed inadmissible for being hearsay evidence or opinion statements, which would normally not be allowed in Canada.
Because of the enormous evidentiary component from Australia expected at trial, lawyers for Lalji claim the MLACMA violates his Charter rights, both under Sec. 7 and Sec. 12, referring to the right not to be unjustly deprived of liberty and the right not to be subjected to cruel and unusual treatment or punishment.
MLACMA allows evidence into court without any assessment of its reliability, Ravin Pillay, one of two lawyers representing Lalji, told court.
“An accused facing such evidence has no means of testing it. The ability to test and challenge evidence introduced at a criminal trial against an accused is fundamental to due process,” he said.
Faiyaz Alibhai, prosecutor for the Crown, said most of the material is “non-controversial,” such as that the substance found in the luggage of the drug mules was, in fact, cocaine and it was illegal to important cocaine into Australia.
The MLACMA still allows an accused to challenge individual pieces of evidence and a judge can still rule on the admissibility of each piece of evidence, he said.
It “poses no danger to the fair trial rights,” Alibhai told court. “There are sufficient safeguards in place.”
Alibhai said the MLACMA is an important tool for combating transnational crime that was passed by Parliament.
The five drug mules have all served their sentences and returned home. Subpoenaed by the Crown for the anticipated trial was Pastukhov, who remains in prison.
He did not appear at the hearing Wednesday.
Judge Russell Silverstein said he would issue his ruling on the constitutionality of the MLACMA within a few weeks. He will hear another pretrial motion Thursday.
Lalji's trial is now scheduled for May 2022.