COURT OF APPEAL FOR ONTARIO
Sharpe, Lang and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Vincenzo Sansalone
Appellant
Gregory Lafontaine, for the appellant
Nick Devlin and Tanit Gilliam, for the respondent
Heard: February 25, 2010
On appeal from the order of Justice Ian MacDonnell of the Superior Court of Justice, dated July 9, 2009, denying an application to quash the committal order of Justice S. Gail Dobney of the Ontario Court of Justice.
H.S. LaForme J.A.:
INTRODUCTION
1The question in this case is whether the offence of trafficking ends at the moment its minimum constituent elements are established or continues until payment, in the case of a sale, is completed. Put in a way that reflects the facts of this case, the question is: Does a person who facilitates only the payment for drugs after delivery, participate in a “conspiracy”, as defined in ss. 465(1)(c) and 467.12(1) of the Criminal Code, R.S.C. 1985, Chap. C-46, to “traffic” them, pursuant to s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c.19 (the CDSA)? The two courts that have dealt with this case have answered yes.
2The reviewing judge, in denying the appellant’s application to quash his committal order, held that although “an offence can be said to be 'complete' when all of the legal elements are present; that does not mean that it is concluded”. His view was that there was “no reason why a completed offence cannot also be a continuing offence”.
3On this appeal, the appellant argues that the reviewing judge erred in law in denying his application to quash the committals ordered by the preliminary hearing judge. In the appellant’s interpretation of the offence of “trafficking”, his actions did not satisfy the test for committal for trial on the charges of conspiracy to traffic in Schedule III narcotics.
RELEVANT FACTS
4I would note that, as the case is still at a preliminary stage, the facts have not been determined. What follows, therefore, is a summary of the facts as alleged by the Crown.
5This case arises out of an alleged drug deal involving the Hells Angels Motorcycle Club (HAMC). In 2005, Omid Bayani, associated with the Haney, British Columbia chapter of the HAMC, agreed to sell a substantial quantity of the narcotic 4-hydro-xybutanoic acid (GHB) to Mehrdad Bahman, a “prospect”1 for the Downtown Toronto chapter of the HAMC.
6Before Bahman could pay for the shipment, however, the Toronto police surreptitiously removed it. Bahman had intended to sell the GHB in order to pay for the shipment, and this source of funds was now lost. The HAMC apparently prides itself on its reputation for honouring its commitments, and it was a matter of extreme importance to both chapters that a member of one chapter pay a drug debt owed to a member of another chapter.
7Against this backdrop, the appellant, as a member of the Haney, B.C. chapter, became involved in efforts – ultimately successful – to persuade Bahman to pay Bayani for the lost GHB. Arising out of this factual background the appellant, together with sixteen co-defendants, was charged with drug offences.
8Specifically, and on the basis of this involvement with the drug deal, the appellant was committed to stand trial on two counts of conspiracy: (i) to traffic in GHB contrary to s. 465(1)(c) of the Criminal Code, and (ii) to traffic in GHB in association with a criminal organization, contrary to s. 467.12 of the Criminal Code. He was discharged in respect of one count of the substantive offence of trafficking.
Decision of the preliminary inquiry judge
9The preliminary inquiry judge dealt squarely with the question of whether the delivery of the drugs concluded or “crystallized” the offence. Her conclusion on this issue is found in her reasons at para. 412:
… [T]he normal use of the word “sell” - and sale includes the payment of consideration - the trafficking of the GHB did not end with the delivery of the drugs to Mr. Bahman. I find that it was a continuing transaction, one which other co-conspirators could join in, until the contract was complete.
10The preliminary inquiry judge then held that the conspiracy continued beyond the delivery of the drugs to Mr. Bahman and throughout the dispute between Mr. Bahman and Mr. Bayani over how much was owed. She held that the sale would not have been completed until the consideration had been paid to Mr. Bayani. She found that the appellant joined the conspiracy when he involved himself in the payment dispute.
Decision of the reviewing judge
11The reviewing judge agreed with the preliminary inquiry judge’s assessment of the charges, and found that the appellant’s involvement in the deal was caught by the definition of “trafficking” in s. 2 of the CDSA. That is, trafficking includes the “sale” of drugs, and a sale includes both the delivery of the drugs and the corresponding payment for the drugs. The transaction, he held, included both the delivery of the drugs and the delivery of the payment.
12The reviewing judge relied on the plain meaning of the word “sell” and at para. 17 of his reasons noted that the defence was attempting to “separate the quid from the quo” by arguing that payment does not form part of a sales transaction. He concluded that a jury could find that the “trafficking” transaction did not terminate with the delivery of the drugs, but that it was a continuing transaction that remained unconcluded until Bahman fulfilled his side of the bargain. He then held that the appellant’s involvement in the payment for the drugs would be enough, in such a case, to satisfy the definition of trafficking.
13The appellant raises a single issue on this appeal. As I noted, he asserts that his actions did not amount to a conspiracy to traffic in illegal drugs. I disagree, and for the reasons that follow, I would dismiss his appeal.
POSITION OF THE PARTIES
14The appellant argues that the evidence was that his only involvement in the drug deal post-dated the delivery of the drugs by Bayani to Bahman. The payment of the debt incurred by Bahman, he contends, was not an element of the offence of trafficking, nor was it the criminal purpose shared in common by Bahman and Bayani.
15The appellant’s argument is essentially that the definition of “traffic” includes, “to sell, administer, give, transfer, transport, send or deliver the substance.” In this case, the appellant is only accused of offences in connection with the “sell” component. Therefore, to establish that he participated in a conspiracy to traffic narcotics, the Crown must establish that he participated in a conspiracy to sell them.
16In addition, the appellant points out that the definition of “sell” in s. 2(1)(a) includes “offer for sale, expose for sale, have in possession for sale, and distribute, whether or not the distribution is made for consideration.” It does not, he contends, require the Crown to show payment in order to establish selling. Therefore, he concludes, once a prohibited drug is delivered or given to another person, the offence of trafficking is proven. The receipt of money is not an element of the offence of trafficking.
17In support of his argument, the appellant cites a number of cases where defendants were successfully prosecuted for delivering drugs despite there being no evidence that they had received payment. In those cases, the court found that the offence was “complete” upon delivery of the drugs and therefore convicted the defendants. Among these cases is R v. Falahatchian, [1995] O.J. No. 1896 (CA) which held at p. 20:
Once a prohibited drug is delivered or given to another person, the offence of trafficking is proven. The receipt of money is not an element of the offence of trafficking [citations omitted]. When Falahatchian gave the heroin to Akbari, the offence of trafficking was complete.
18Thus, he submits, because the delivery, and therefore the sale, was completed at the time the appellant became involved, he could not have conspired to sell drugs; rather, his participation came after the crime had been completed.
19The Crown, on the other hand, argues that the definition of trafficking is very broad and deliberately so in order to capture every mode of behaviour that contributes to the proliferation of harmful, illicit drugs and all the elements of drug dealing, drug sharing and drug distribution. The Crown submits that the word “traffic” must be interpreted in light of this purpose, which is to cast a net wide enough to prosecute all aspects of a drug transaction, including the negotiation and payment of a price. They also rely on the ordinary meaning of the word “sell” which is an exchange of goods or services for payment.
20In the Crown’s submission, when a group of people have a meeting of the minds that a commercial sale of illegal drugs should be completed, this meets the definition of “trafficking”.
21The Crown argues that the evidence at the appellant’s preliminary inquiry gave rise to the permissible inference that he joined an agreement whereby the sale of G.H.B. from Bayani to Bahman was to be completed. This was, it is argued, an ongoing drug deal; the drugs were “fronted” with the expectation of repayment, funded by the resale of the drugs. This, it is said, demonstrates that the parties contemplated that the drug transaction was ongoing in nature.
ANALYSIS
22In my view, the question on this appeal turns on an exercise of statutory interpretation.
23The traditional rule for interpreting penal statutes requires strict construction, wherein any ambiguity is resolved in favour of the defendant. However, as Cory J. noted at para. 30 of R v. Hasselwander, 1993 90 (SCC), [1993] 2 S.C.R. 398, “even with penal statutes, the real intention of the legislature must be sought, and the meaning compatible with its goals applied.”
24Hasselwander dealt with the definition of automatic weapons. In determining the intention of the legislature, Cory J. took note of the danger posed to society by automatic weapons, stating that, “[t]here is good reason to prohibit their use in light of the threat which they pose and the unlimited use to which they can be put. Their prohibition ensures a safer society.” He therefore read the relevant definitions in a broad manner, defining automatic weapons as including weapons that could easily be converted from semi-automatic to automatic.
25I would apply the same reasoning to the present case. Parliament has determined that the traffic in narcotics such as GHB poses a significant risk to society. They have therefore enacted wide ranging legislation to prohibit this trade. I agree with the reasons of Dubé J.A. in R. v. Rousseau, (1992), 1991 3345 (QC CA), 70 C.C.C. (3d) 445 at 451 (Que. C.A.), leave ref’d [1992] 1 S.C.R. x that the intention of Parliament was to “prohibit all forms of action which encompass the circulation of narcotics.”
26The definitions of “sell” and “traffic” in the CDSA, in my view, cast a very wide net, the goal of which is to facilitate prosecution of individuals who participate in or contribute to the trafficking of narcotics.
27The appellant proposes a definition of “sell” and “traffic” that, when read with the Criminal Code provisions on conspiracy, would limit criminal liability to actions taken up to the point at which drugs are delivered. In my view, such a narrow view of drug transactions is contrary to the purposes of the relevant provisions of the CDSA and Criminal Code.
28Indeed, the appellant’s view is that by enacting a wide definition of “sell” that creates liability for people participating in various aspects of drug transactions such as delivery under the CDSA, Parliament simultaneously truncated the applicability of the Criminal Code’s conspiracy provisions to these same transactions. If this were correct, the CDSA and Criminal Code would be working at cross purposes.
29The appellant is however correct to note that it is not necessary for the Crown to prove that payment has been made in order to establish that a drug was sold. Nevertheless, this does not make the payment of money irrelevant to, or separate from, the drug transaction. The definition of sell includes distributing, “whether or not the distribution is made for consideration.” I read this as meaning that distributing without receiving consideration is selling, as is distributing in exchange for consideration.
30In the present case, Bayani and Bahman were engaged in distributing for consideration. This meets the definition of selling, and therefore constitutes trafficking contrary to s. 5(1) of the CDSA. The appellant assisted in arranging for the consideration to be paid. In that sense, he conspired in the offence for the purposes of ss. 465(1)(c) and 467.12(1) of the Criminal Code. The fact that one can imagine a hypothetical situation where Bayani would have given the drugs to Bahman for free does not change the facts of the transaction as it occurred.
31Similarly, the possibility that Bayani or Bahman could have been charged before the appellant participated in the transaction is of no moment. Indeed, Bayani could have been charged at the moment he offered to sell the drugs. He was not. On the facts of this case, as presented at the preliminary inquiry, a number of individuals participated in a conspiracy to exchange drugs for money, contrary to s. 5(1) of the CDSA. The appellant was among them.
DISPOSITION
32In my view, there was a sufficient basis to order the appellant to stand trial for the alleged offences. I agree with the reviewing judge’s dismissal of the application to quash the committal for trial. Accordingly, I would dismiss the appeal.
RELEASED:
“RJS” “H.S. LaForme J.A.”
“APR 16 2010” “I agree Robert J. Sharpe J.A.”
“I agree Susan E. Lang J.A.”
