COURT OF APPEAL FOR ONTARIO
CRONK, LAFORME and JURIANSZ JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Nicholas Devlin and Fergus O’Donnell, for the appellant
Appellant
- and -
LYLE NIEMI
Gregory Lafontaine and Vincenzo Rondinelli, for the respondent
Respondent
Heard: December 20, 2005
On appeal from acquittals entered by Justice Alfred J. Stong of the Superior Court of Justice dated February 24, 2004.
JURIANSZ J.A.:
Overview
1On November 7, 2001 a private jet landed at Lake Simcoe Regional Airport (“Simcoe Airport”) carrying 263 bricks of cocaine weighing 269 kg and 17 bricks of hashish weighing 16.4 kg. While taxiing back from the end of the runway after landing, the pilot executed a 180° turn and stopped at a point where the runway intersects the Oro-Medonte 6th Line. The plane’s door was opened and the drugs, in hockey bags, were tossed to several men who were waiting on the 6th Line in a pickup truck and an SUV. One of the passengers on the jet jumped out of the plane. The plane, with its pilot, co-pilot and one remaining passenger, then proceeded to the terminal for customs inspection.
2The RCMP who were observing the entire operation, arrested everybody on the plane, as well as the men who were waiting with the pickup truck and SUV.
3The pilot of the jet, Mr. Lyle Niemi, was tried by judge alone on charges of importing, trafficking, and possession of the drugs for the purpose of trafficking, and was acquitted on all counts. The Crown appeals the acquittals on the basis of errors of law allegedly made by the trial judge. I would allow the Crown’s appeal and order a new trial for the following reasons.
4First, the trial judge committed several errors in analyzing the Crown’s position that Niemi was a member of a conspiracy to import drugs into Canada from Jamaica. He erred by holding that Niemi’s own statements (recorded on wiretaps in conversation with the alleged co-conspirators) were inadmissible against him. Niemi’s statements were admissions and therefore properly receivable into evidence irrespective of his membership in any conspiracy. The trial judge also erred by concluding that evidence that Niemi was a member of the broad conspiracy to import drugs from Jamaica alleged by the Crown was inadmissible because the drugs were not brought into Canada by that conspiracy, but by a faction of conspirators acting independently. Finally in this area, the trial judge erred by considering irrelevant factors in concluding that Niemi was not a member of the alleged conspiracy.
5Second, the trial judge’s finding that the Crown had not proved that Niemi was wilfully blind is incompatible with his earlier finding that the Crown had proved beyond a reasonable doubt that Niemi was not acting under duress when he flew the plane back to Canada from Jamaica.
Facts
6Alfredo Malanca and Dean Roberts were the principals in an ongoing conspiracy to import drugs into Canada from Jamaica.
7Wiretap and surveillance evidence established that Niemi met with and had telephone conversations with Malanca. On August 22, 2001, Malanca left a telephone message for Niemi with the receptionist of Executive Edge Air (the company Niemi worked for) using the fictitious name “John”, and declined to leave a surname when asked. Niemi returned the call that evening. That telephone conversation was oblique. Malanca indicated that he wanted to meet Niemi, but declined to specify why, other than to say “I just want to talk to you about something.” Niemi was angry with Malanca for leaving a message without leaving a last name because, according to Niemi, his receptionist was “getting awfully fuckin’ nosey.” When Malanca protested that he only called once, Niemi explained that the receptionist was “getting snoopy” because he was receiving calls from “Magician...from you [without a last name]…from another guy and it’s just a name or, he knows who I am call me.”
8Although he indicated that the call was personal, Malanca did remark “and if it’s work you, you know, always like work anyway don’t ya?” Niemi replied, “Well I usually work out pretty well I think.”
9The trial judge found that these calls demonstrated that there was a relationship between Niemi and Malanca and that it was “hard to imagine” that this was a legitimate business relationship. The trial judge specifically referred to the reference to meeting places and the use of code names, such as “Buddy” and “Magical”. In addition, the trial judge felt that Niemi’s statements revealed that he was clearly familiar with the furtive terminology and understood the code names and words being used.
10Niemi also had a relationship with Roberts, the other principal in the conspiracy to import drugs. On September 19, 2001, Niemi had flown Roberts and Roberts’ wife to Nassau, Bahamas from Montréal, and then had flown them back to Montreal on September 21. However, there is no evidence that Niemi was aware of the relationship between Roberts and Malanca.
11On October 10, 2001, Roberts and Malanca discussed what appeared to the trial judge to be a plan to import drugs from Jamaica that had been delayed. Roberts indicated in that call that he had a pilot, referred to by the codename “Patrick One”, on standby, and complained about owing Patrick One more money because of the delay. The trial judge was satisfied that Niemi was Patrick One, though there was no evidence that Niemi himself was aware of this codename. Malanca had been dealing with a pilot codenamed “Patrick Two”, and wanted Roberts to wait for that pilot to be available. The trial judge found, “[I]t is clear that both pilots are anticipated by the main conspirators, Malanca and Roberts, to be resources for their enterprise.”
12The next day, Niemi called the Roberts’ home in Montréal and left a message for Roberts with his wife
