Court of Appeal for Ontario
Date: August 8, 2019 Docket: C62015
Judges: Feldman, Lauwers and Nordheimer JJ.A.
Between
Her Majesty the Queen Respondent
and
James Buttazzoni Appellant
Counsel
For the Appellant: Jill R. Presser
For the Respondent: Howard Piafsky and Holly Akin
Heard: January 31, 2019
On Appeal
On appeal from the conviction entered by Regional Senior Justice Peter A. Daley of the Superior Court of Justice on November 27, 2015, and from the sentence imposed on April 1, 2016, with reasons reported at 2015 ONSC 6411 and 2016 ONSC 1287.
Feldman J.A.
Overview
1The appellant was acquitted of importing cocaine, but convicted of conspiracy to import cocaine and possession of cocaine for the purpose of trafficking. He was sentenced to 17 years, concurrent on each count. The charges related to a shipment of 112 kilograms of cocaine from Guyana.
2The main issue on the appeal turns on whether the appellant's conviction for conspiracy to import was properly based in law and fact. The appellant also appeals his conviction for possession for the purpose of trafficking on the basis that certain utterances that were overheard by police should not have been admitted into evidence. Additionally, the appellant seeks leave to appeal his sentence.
3For the reasons that follow, I would dismiss the conviction appeal, grant leave to appeal sentence, and reduce the sentence to 15 years concurrent.
Facts
4On May 28, 2012, a container arrived at the port of Saint John, New Brunswick from Guyana. Canada Border Services Agency (CBSA) personnel inspected the container and learned that it contained a quantity of canned and prepared food products as well as 20 empty skid pallets acting as space fillers. Secreted in the wood framework of 19 of the pallets were 112 kg of cocaine with an approximate value between $3,920,000.00 and $8,960,000.00, depending on how it was sold. The consignee was "Moe's Island Grocery" in Mississauga and the name "Laurence".
5Following the discovery of the cocaine within the pallets, the CBSA agents contacted the Royal Canadian Mounted Police (RCMP). The RCMP took control of the container and arranged for a controlled delivery. The cocaine was removed from the pallets in New Brunswick, and then, on June 6, the container was transported to Ontario. Once in Ontario, the RCMP returned one gram of cocaine to the pallets and installed electronic audio and physical surveillance devices. The police learned from the shipment broker that Lawrence Dalloo, a co-accused, was responsible for the container.
6On June 7, 2012, while the container was still detained by the RCMP, Dalloo entered into a rental contract with respect to a storage unit at a Public Storage location in Brampton, Ontario. On the contract, Dalloo named himself as tenant and James Buttz as the only other person authorized to access the unit. At trial, Dalloo confirmed that James Buttz was the appellant.
7On June 11, 2012, the police began to intercept Dalloo's private conversations pursuant to a wiretap authorization. On June 12, the appellant called Dalloo and, using cryptic language, asked about the container. The same day, Dalloo was in contact a number of times with people in Guyana about its status.
8On June 13, the police delivered the container to a rail yard in Brampton. Dalloo learned it was available for pick-up there. He then arranged for a truck to pick up the container and drive it to the storage facility, rather than to Moe's Island Grocery. The police had the storage facility under surveillance.
9That afternoon, the appellant drove Dalloo to the storage facility to meet the container. The appellant punched in the entry code at the gate. That evening, they returned to meet the truck transporting the container and directed it to the storage unit. Dalloo signed a paper from the truck driver while the appellant stood nearby. After the driver left, the appellant appeared jubilant. The two men hugged each other, and the appellant performed a celebratory dance. The appellant made a call from his cell phone, reporting that "it just got here". As they drove away past the container, the appellant stopped and patted it. The appellant's car returned later that evening and drove around the container.
10That night Dalloo received a call from Guyana and they discussed what was to happen from that point. It became clear that another co-accused, Rampersaud Ramlall (referred to as Teddy by Dalloo and the appellant), was to pick up the pallets containing the cocaine and return with Dalloo's share later.
11On June 14, 2012, the appellant called Dalloo. The appellant said he wanted to get it done that day. They also discussed paying someone named Andrew at the trucking company $200 for redirecting the container to the storage facility. Later that morning, the appellant picked up Dalloo and dropped him off at a gas station where Dalloo met Ramlall. Dalloo and Ramlall drove to the storage facility. Dalloo called another co-accused, his nephew Sean Hussain, asking him to tell "Jay" to bring bolt cutters as well as the dolly. At 12:15 p.m., all four men attempted to open the container. After it was opened, Ramlall and the appellant were observed entering the container. The appellant and Hussain then left the area.
12After that, a white van arrived and the pallets were loaded into the van and driven to Ramlall's house in Whitby where they were unloaded into Ramlall's garage. Dalloo texted a number in Guyana and said, "Ur boy have it".
13Once the white van left the storage unit, the appellant and Hussain returned and, with the assistance of Dalloo, unloaded the rest of the container's contents. During that time, one of the surveillance officers who was hiding under a truck within earshot overheard conversation amongst the men, including utterances by the appellant, some of which the officer committed to memory and recorded later. These utterances were confirmed by Dalloo at trial. The appellant talked about being nervous. He asked if the wood had "some in it". Dalloo answered, "Yeah they left a skid." The appellant said, "[B]e neat to break it open and see how it looks."
14Police also intercepted phone conversations that evening between the appellant and Dalloo where Dalloo told the appellant that the skids would likely be opened the next day. The appellant expressed concern about whether "they're gonna dance all over it", meaning dilute the portion of the cocaine that they were to receive. Dalloo also appeared to threaten violence if they were cheated.
15The next morning, when noise from the listening device inside the pallets alerted the police that they were being opened, police quickly arrested Ramlall and another co-accused, Gary Ramoutar, outside Ramlall's residence on the driveway.
16Later that morning, police intercepted phone conversations between the appellant and Dalloo, in which the appellant questioned whether "these guys fucked us". The appellant told Dalloo that he would have to "tell fuckin' Teddy [i.e. Ramlall] he's takin' a fuckin' bullet now, you know what I mean". The appellant was subsequently arrested at his residence.
The Trial Judge's Findings
17At trial, Dalloo, who had previously pled guilty to importing cocaine and possession of cocaine for the purpose of trafficking, gave evidence that exonerated the appellant, but his evidence was rejected by the trial judge.
18On the count of importing cocaine, the trial judge found that the Crown had failed to prove the first required element – i.e. that the appellant had imported a substance into Canada. He found, at paras. 183-184 of his reasons for judgment, that the appellant's "involvement with the cocaine commenced after it reached Ontario", and there was no evidence that the appellant "was involved in directing or causing another person to bring the cocaine into Canada". The appellant was aware of the cocaine being imported and its arrival in Ontario, but there was no evidence that the appellant "played a direct or indirect role in the act of its importation": at para. 183.
19On the count of conspiracy to import, the trial judge found that there was a "conspiracy to import and distribute" a large quantity of cocaine and that the appellant was a member of that conspiracy. On the issue of timing, the trial judge stated that the exact point when the appellant entered into the conspiracy was unknown, but it was while the conspiracy was ongoing. When discussing why the appellant was not guilty of importing but guilty of conspiracy to import, the trial judge explained, at para. 183 of his reasons, that he found the appellant's "role in relation to the importation was that of a co-conspirator in a scheme or plan which involved the importation and subsequent distribution of the cocaine and that role as a co-conspirator was part of the continuing offence of conspiracy."
20The trial judge also found the appellant guilty of possession for the purpose of trafficking. He found the appellant was in constructive possession of the cocaine: he knew the nature and character of the substance, and he knowingly kept it or had it placed in the container and subsequently into the care of Ramlall for the appellant's own use or benefit. The trial judge relied on the appellant's conversations with Dalloo, both intercepted and overheard, as well as his conduct as demonstrating that he had a financial interest in the cocaine and that he retained a measure of control over it after it was taken by Ramlall.
21Having found the appellant guilty of possession of 112 kg of cocaine for the purpose of trafficking and of conspiracy to import the 112 kg of cocaine, the trial judge sentenced the appellant to 17 years, concurrent on each count. The trial judge rejected the defence position that the appellant was a lower level participant in the scheme. He found no mitigating factors, and took account of the appellant's recent record in Florida for conspiracy to possess with intent to distribute more than 100 kg of marijuana, for which he received a sentence of 40 months' imprisonment as well as a 4-year term of post-sentence supervision. He was prohibited from possessing a controlled substance, and was subject to the supervision order when he committed these offences.
22Dalloo received a sentence of 15 years concurrent on a guilty plea to importing cocaine and possession of cocaine for the purpose of trafficking.
23The trial judge found Ramlall guilty of conspiracy to import cocaine and possession of cocaine for the purpose of trafficking and imposed a sentence of 15 years, concurrent on both counts. Ramlall had no criminal record.
Issues on the Appeal
24The appellant raises the following arguments in relation to his conviction for conspiracy to import cocaine:
The conviction for conspiracy to import was unreasonable because a trier of fact could not have convicted on a proper application of the law;
The trial judge erred in law regarding when an importation ends and when a conspiracy ends; and
The conviction for conspiracy to import was unreasonable because the trial judge failed to consider a reasonable alternative conclusion.
25The appellant raises one argument in relation to his conviction for possession of cocaine for the purpose of trafficking: the trial judge erred by admitting the utterances overheard by the police officer at the storage unit and using them to convict for possession for the purpose of trafficking.
26He also seeks leave to appeal his sentence and advances two arguments:
Should this court uphold both of the appellant's convictions, the trial judge erred in principle in imposing a sentence of 17 years based on the finding that the appellant's role was equal to that of Dalloo; and
Should this court quash the appellant's conviction for conspiracy to import but uphold his conviction for possession for the purpose of trafficking, the trial judge erred in principle in imposing a sentence of 17 years for possession for the purpose of trafficking.
Analysis
(1) Appeal of the Conviction for Conspiracy to Import Cocaine
27The appellant raises three grounds of appeal challenging the legal basis for his conviction for conspiracy to import. I propose to deal with the third ground first. With respect to this ground, the appellant submits that his conviction for conspiracy to import is unreasonable because the trial judge failed to consider a reasonable alternative conclusion.
28While the trial judge found the appellant guilty of conspiracy to import, his reasons disclose that the conspiracy that was proved was conspiracy to import and distribute. The appellant argues that all of the evidence of the appellant's involvement that the trial judge relied on to convict him of conspiring to import was evidence that proved his involvement in a conspiracy to traffic in cocaine after it arrived in Ontario. However, the appellant was not charged with conspiracy to traffic – only with conspiracy to import. Therefore, the trial judge should have considered and explained why the circumstantial evidence was only consistent with conspiracy to import and not conspiracy to traffic.
29I agree with the appellant that if the trial judge convicted the appellant of conspiracy to import based only on acts that related to a conspiracy to traffic the drug once it was imported into Canada, that would constitute an unreasonable verdict. The Crown submits that the trial judge was entitled to find that the criminal agreement that actually existed was for a broader purpose and encompassed both importation and distribution, and that the evidence relied on by the trial judge made the appellant part of the entire scheme.
30The Crown points to the following particulars of the evidence as reasonably supporting a joint criminal enterprise with Dalloo and the appellant as partners, and which encompassed an agreement to import cocaine from Guyana that continued in Canada:
Dalloo's inclusion of the appellant as the only other person allowed access to the storage unit intended for the cocaine in his lease with the storage facility, dated June 7, 2012, which was a week before he took possession of the container;
The anxiety and concern shared by Dalloo and the appellant over the delays in delivering the container;
The appellant punching the security code to get access to the gated area of the storage facility when he arrived there with Dalloo on the afternoon of June 13, 2012;
The appellant engaging in counter surveillance, advising Dalloo in one call when they were expecting delivery that the "OP…OP was just leaving";
The appellant's presence with Dalloo during the delivery of the container, which they believed contained a multimillion dollar shipment of cocaine, a factor the judge found to be consistent with the appellant having a direct interest in the delivery of the cocaine and the overall conspiracy to import it;
The appellant's celebratory behavior as soon as the container was delivered;
The appellant's inspection of the seals on the container with Dalloo, his participation in attempting to open it and his entry into the container once it was open;
Their shared understanding of the procedure to be followed, including not opening the container upon delivery, who was to be present when it was, and how it was to be handled;
Their discussion referring to Andrew, the person responsible for arranging for the transportation of the pallets;
Ramlall's direction to Dalloo to bring "two with yourself makes three" to the container;
The appellant's utterances at the storage facility that were overheard by a hidden police officer, including "hope those guys don't rip us bro', I'm nervous, it doesn't take that long to rip into them… I might drive to Whitby tonight."
Interceptions where the appellant discusses his fear that he and Dalloo have been cheated and that Ramlall will cut them out of their share of the imported cocaine;
The appellant's threat to kill or do violence to Teddy [i.e. Ramlall] because the deal seemed to be falling apart; and
The appellant and Dalloo's consistent use of the terms "we", "us" and "our" when engaged in discussions about the cocaine.
31The Crown submits that the appellant's involvement with the container and its contents before it got to Ontario, and the fact that the drugs had to be imported for any of the rest of the scheme to operate, constituted ample evidence for the trial judge to find that Dalloo and the appellant were engaged in a joint venture that commenced with the agreement to import the cocaine.
32I agree with the Crown that the trial judge was entitled to view the appellant's level of involvement with the shipment before it arrived at the Brampton rail yard as evidence that his agreement with Dalloo included an agreement to import the drugs into Canada. The trial judge concluded, at para. 153, that "the only rational inference that can be drawn from the circumstantial evidence, within the context of all the evidence, is the guilt of Mr. Buttazzoni with respect to the charge of conspiracy in Count 1." Count 1 was the charge of conspiracy to import. The trial judge's finding answers the argument that the evidence was equally consistent with an agreement to traffic only.
33Thus, I would reject this ground of appeal.
34I now turn to the first two grounds of appeal relating to the appellant's conviction for conspiracy to import cocaine, and I propose to address them together, given that they are closely related. In these two grounds of appeal, in essence, the appellant submits that, due to a misunderstanding and misapplication of the law as it relates to when the offences of importing and conspiracy end, the trial judge erred in finding the appellant guilty of conspiracy to import.
35The appellant argues that while the larger conspiracy to import and distribute may have been a continuing conspiracy, the conspiracy to import – i.e. the conspiracy alleged in the indictment – ended when the importation ended, and this preceded the appellant's involvement. In R. v. Vrany, 1979 CanLII 3008 (ON CA), 46 C.C.C. (2d) 14 (Ont. C.A.), at p. 26, leave to appeal refused, [1980] 1 S.C.R. xiii, the court stated: "Once the importation of goods is completed one cannot thereafter become a member of a conspiracy to import the subject goods".
36The appellant submits that the importation ended when the drugs entered Canada and cleared customs in New Brunswick on May 28, 2012, relying on the majority decision in Bell v. The Queen, 1983 CanLII 166 (SCC), [1983] 2 S.C.R. 471, at p. 489, where the majority stated that importing a narcotic is not a continuing offence, and that it is complete when the goods enter the country.
37The Crown's responding argument is that the trial judge fully understood that the result in Bell was that importing a narcotic is not a continuing offence and is complete when the goods enter the country. Although the trial judge mistakenly referred to the concurring reasons of Dickson J. (as he then was) in Bell, in which Dickson J. concluded, by contrast, that the offence of importing a narcotic is not "over and done with until the goods have reached their intended final destination within Canada" (at p. 481), the trial judge's understanding of the law as expressed by the majority in Bell with respect to the temporal limits of the offence of importing was clear from his acquittal of the appellant for the offence of importing.
38The Crown submits that unlike the offence of importing, the offence of conspiracy is a continuing offence; and, therefore, the appellant need not have joined the conspiracy before the importation was complete. The Crown relies for that proposition on R. v. Sauvé, 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 118, leave to appeal refused, [2004] S.C.C.A. No. 246; Vrany, at p. 26; and R. v. Bogiatzis, 2010 ONCA 902, 285 C.C.C. (3d) 437, at para. 33.
39I do not agree that those cases stand for the proposition asserted by the Crown. In those cases, the issue was the application of the co-conspirators' exception to the hearsay rule – specifically, the admission into evidence of declarations made by a co-conspirator in furtherance of a broader criminal agreement than the one charged in the indictment to prove the conspiracy that was charged. The concept was explained by Rosenberg J.A. in Sauvé, at paras. 115-118:
[115] The appellants submit, as a matter of law, that for the purpose of the hearsay exception the common design must either be the offence charged or a conspiracy to commit it. Thus, they submit that even if there was a common design it was completed with the murder and any of the declarations after the killings were not capable of meeting the "in furtherance" requirement for the application of the exception. The appellants submit that as a matter of policy the hearsay exception must be so limited to prevent a dangerous and unwarranted expansion of the exception.
[116] We do not accept the appellants' submission on this issue. In our view, the matter is settled by this court's decision in R. v. Baron and Wertman, 1976 CanLII 775 (ON CA), 31 C.C.C. (2d) 525. In that case, the court had to consider whether the trial judge erred in instructing the jury that the conspiracy to murder included a conspiracy to "cover up" the murder. Martin J.A. dealt with the issue as follows at p. 550:
To engraft a conspiracy to avoid detection and prosecution, as a matter of law, on every conspiracy to commit a crime would have far reaching implications. The effect of such a doctrine would be to extend the duration of the conspiracy and to make the attempted bribery of a police officer or the subornation of a witness by one conspirator admissible against the other as an act done in furtherance of the presumed subsidiary conspiracy to escape detection and punishment. Such a conspiracy could, of course, like any other conspiracy, be established by evidence [emphasis added].
[117] To a similar effect is the decision of this court in R. v. Vrany, 1979 CanLII 3008 (ON CA), 46 C.C.C. (2d) 14 at 26:
However, those who conspire to commit crime do not do so with any nice or careful delineation of the offences intended and a single conspiracy may encompass a number of closely linked crimes which may be essential to the success of the conspiracy and form part of the common design. This fact may then lead to the admission into evidence of acts and declarations of one conspirator against another which occurred after the principal object of the conspiracy had taken place if those acts and declarations were in furtherance of the common design.… [emphasis added].
[118] In other words, the scope of the conspiracy, or in this case the common enterprise, does not depend on the definition of the particular crime charged but the nature of the agreement. A court must be careful not to artificially graft on to a conspiracy to murder a conspiracy to avoid detection, or as in this case, a common design to use the murder as a means of intimidating others. However, if the evidence establishes such a conspiracy or common design, it can serve as a foundation for the hearsay exception.
40The trial judge in this case did use the broader conspiracy to import and distribute as the basis upon which to determine if certain hearsay statements made by one co-conspirator, Dalloo, after the importation, were admissible against the appellant pursuant to the co-conspirators' exception to the hearsay rule. In that context, he concluded that he was satisfied beyond a reasonable doubt that the appellant was a member of the broader conspiracy to import and distribute the cocaine.
41However, that use of the broader conspiracy in the course of applying this hearsay exception does not enlarge the crime charged in the indictment, including the timing of the offence. As stated by this court in Vrany, at p. 26, "[t]his rule … is an evidentiary rule and does not enlarge the definition of the conspiracy charged." In this case, the charge was conspiracy to import cocaine, and the law remains that the Crown was required to prove that the appellant joined that conspiracy before it was terminated – here, by the completion of its object, which was the importation of the cocaine.
42Therefore, in order to properly ground a conviction for conspiracy to import, it was necessary for the trial judge to find that the appellant joined the conspiracy to import before the object of the conspiracy, the importation of the cocaine, was complete. To do so, he had to find what date the appellant entered the conspiracy. However, his only finding in this regard was that the date when the appellant entered the conspiracy as a participant was unknown, but that he "entered the orbit of the conspiracy, as a full participant, during the life of the conspiracy": at para. 153.
43The trouble with this finding is the use of the phrase "during the life of the conspiracy." As noted above, the trial judge found that the appellant was a member of a "conspiracy to import and distribute". Thus, it is not clear from this finding alone whether the trial judge found that the appellant became a member of the conspiracy before or after the termination of the importing offence. If it was the former, this would properly support a conviction for conspiracy to import, but if it was the latter, it would not.
44In light of subsequent developments in the law relating to the offence of importing and the trial judge's other factual findings, I am of the view that this ambiguity does not require a new trial. Let me explain.
45Since the trial of these charges in 2015, this court has decided two cases, R. v. Foster, 2018 ONCA 53, 360 C.C.C. (3d) 213, leave to appeal refused, [2018] S.C.C.A. No. 127, and R. v. Onyedinefu, 2018 ONCA 795, which have interpreted the majority decision in Bell in the context of different fact scenarios in order to determine when the offence of importing is factually complete. In Foster, at para. 106, this court concluded that the offence of importing is factually complete at the point when "the contraband and its carrier have cleared customs and thereby become available to their ultimate recipient." In Onyedinefu, at para. 8, this court concluded that "importing is a process that begins with the procurement of the contraband, its transport to a point of entry, and ultimately to a domestic destination or recipient."
46These two cases had not been decided at the time of this trial. On appeal, counsel for the appellant took the position that the offence of importation ended in New Brunswick on May 28, 2012, which was when the goods entered the country and cleared customs. Respectfully, in light of Foster and Onyedinefu, this is not correct. While the majority judgment in Bell holds that the offence of importing is complete when the contraband "enters the country" (p. 489), this court's judgment in Foster notes, at para. 101, that that phrase "says nothing definitive about when the offence[s] begins or ends" (emphasis in original). In Foster, the contraband was hidden in the appellant's clothing, and it was seized on the appellant's arrest at secondary inspection at the Toronto airport. This court held, at para. 108, that while the importing offence was complete in law then, it was not complete in fact, because the "the object of the importation – to bring cocaine from Jamaica to a Canadian recipient – had not concluded". In Onyedinefu, the appellant took possession of a package containing heroin that was delivered by FedEx. The package originated in India and came to Canada by way of the United States. This court held, at para. 8, that while the importing of heroin was complete in law when the heroin entered Canada, it was not factually complete until "the appellant, who was the Canadian recipient, took possession of it". In this case, the container with the cocaine became available to the recipient (Dalloo) at the rail yard in Brampton on June 13, 2012, and he took possession of it on that date. Thus, in light of Foster and Onyedinefu, the offence of importation ended on June 13, 2012.
47With this end date in mind, let me now turn to the trial judge's other factual findings. The trial judge found, at para. 152 of his reasons for judgment, that he was "satisfied beyond a reasonable doubt that [the appellant] had the intention to enter into an agreement to import cocaine into Canada, and that that intention had already existed at the time of the first intercepted communication between [the appellant] and Dalloo". The time of the first intercepted communication between the appellant and Dalloo was the morning of June 12, 2012. Thus, the trial judge found as a fact that the appellant had the requisite mens rea to join the conspiracy at least as of June 12. As Bell has now been interpreted in Foster and Onyedinefu, that was prior to the termination of the offence of importing on June 13.
48Directly after making his finding regarding mens rea, the trial judge made his finding regarding the actus reus, stating, at para. 153:
I am further satisfied beyond a reasonable doubt that [the appellant] entered into this agreement, which he knew to be for the unlawful purpose of importing and distributing a large quantity of cocaine into Canada. While the exact point in time where he entered the conspiracy as a participant is unknown, it is clear, and I am satisfied beyond a reasonable doubt, that he entered the orbit of the conspiracy, as a full participant, during the life of the conspiracy.
49In my view, the trial judge's finding with respect to the actus reus must be read in the context of his preceding finding with respect to mens rea. These findings are made one right after the other. Reading these findings together, I am of the view that when the trial judge found, at para. 153, that he was "further satisfied beyond a reasonable doubt that [the appellant] entered into this agreement" (emphasis added), he was referring back to his finding regarding mens rea above, such that it should be understood that the appellant entered into this agreement coincident with when he intended to enter it. While the trial judge is not able to pinpoint exactly when the intention to enter and the actual entry into the agreement occurred, it is clear from reading these two passages together that he found that they both existed at least at the time of the first intercepted communications between the appellant and Dalloo, and, thus, before the end of the offence of importing.
50In further support of this conclusion, I note that the intercepted communication referred to by the trial judge involved the appellant asking Dalloo about the container using cryptic language. From a practical point of view, I fail to see how this evidence could be used to find that the appellant had the intention to enter into an agreement to import cocaine without also supporting the finding that he entered into the agreement. To conclude otherwise, in my respectful view, would be to go against logic and common sense. Thus, reading the trial judge's reasons contextually and practically, I conclude that he found that the appellant intended to enter and did enter into an agreement to import cocaine prior to the termination of the offence of importing on June 13, 2012.
51This finding is supported by the evidence at trial, including the following:
Dalloo testified that the appellant was with him when he rented the storage unit on June 7 (i.e. before the container was delivered to Brampton);
Dalloo included the appellant's name on the storage agreement as the only other person who could access the unit;
the appellant reacted with jubilation when the container arrived at the storage facility; and
the appellant had a significant financial interest in the shipment.
These examples all indicate that the appellant had joined the conspiracy to import the cocaine before the container arrived at the rail yard and therefore before the completion of the offence of importing.
52As a result, I would not disturb the trial judge's finding that the appellant was guilty of conspiracy to import cocaine. I would therefore dismiss the appeal on this count.
(2) Appeal of the Conviction for Possession for the Purpose of Trafficking
53The panel did not call on the Crown to respond to the ground of appeal pertaining to the admission of the overheard utterances and the effect on the appellant's conviction for possession of cocaine for the purpose of trafficking. The trial judge delivered written reasons for his ruling on the admissibility of the utterances. The appellant submits that because the circumstances under which the utterances were overheard and later recorded made them unreliable, they had little probative value, and any such value was outweighed by their prejudicial effect.
54The evidence given by the officer who was hiding under a truck and overheard the utterances by the appellant was that he committed 16 of them to memory and then later recorded them. The utterances were overheard over a period of 2.5 hours. In addition to these circumstances, the appellant points to the fact that the officer became more certain of the accuracy of his memory over the course of his testimony. Finally, the appellant submits that because the utterances were taken out of context, there was the potential for circuitous reasoning regarding their meaning and import to implicate the appellant: R. v. Ferris, 1994 ABCA 20, 149 A.R. 1 [Ferris (C.A.)], affirmed 1994 CanLII 31 (SCC), [1994] 3 S.C.R. 756.
55We do not accept this submission. In his reasons, the trial judge considered the issues raised by the appellant. He found that the contextual evidence was more than adequate to allow the trier of fact to examine the utterances and determine their meaning. He referred to the test for admission of uttered words from Ferris (C.A.), at para. 17:
The facts of this case are unique in that there exist no circumstances or context from which the true meaning of the words can be inferred. It is uncontradicted that the words were part of an utterance only, and that other words passed both before and after those words. It is uncontradicted that the words could have come at the beginning of a sentence or at the end of a sentence. In fact, the words may have been a part of a question such as "You don't think I killed David?" or a statement such as "They think I killed David" or "They think I killed David but I didn't". His father could have asked him what the police think he did and he could have replied "I killed David". Those utterances do not prove any fact in issue and are not an admission of guilt. Indeed, on the basis of the uncontradicted evidence, the possibility of statements with the words "... I killed David ..." contained therein are numerous. There is no way of determining the meaning or thought to be attributed to the words. A trial judge could not ascertain, nor could the jury, the meaning of the words. The difficulty is compounded by the acknowledgement of Sergeant Schmidt that this accused was talking in a slow fashion, pausing, repeating himself or trailing off into nothing. The circumstances are all before the trial judge and he should determine whether or not the evidence is sufficient for a jury to conclude the meaning of the words. Without meaning being ascertainable the words are not relevant to any fact in issue and they have no probative value.
56The trial judge then distinguished Ferris on the basis that the uttered words in this case were more than simply partial thoughts, and there was considerable context within which to consider them. I note that that context included all of the evidence regarding the delivery of the container to the storage unit, the unloading of the pallets into the vehicle bound for Ramlall's house in Whitby, and the fact that one pallet was left behind so that, for example, the utterance by the accused about breaking it open to see how it looks would be understood in that context. Finally, the trial judge observed that the question of the weight to be accorded to the utterances, including the accuracy of the officers' recollections and of their notes, was for the trier of fact. For example, the fact that some of the recounted utterances were described as "almost verbatim" while others were a "paraphrased synopsis" would go to the weight rather than the admissibility of the utterances.
57The trial judge concluded his ruling by finding that the probative value of the utterances exceeded their prejudicial effect.
58The admission of such evidence is a discretionary call by the trial judge. In this case, he addressed that issue by identifying and applying the appropriate legal test for the admission of utterances, and he considered all of the frailties of the hearing and reporting of the utterances in the context of that test before determining that the evidence was admissible. The weight to be accorded to the evidence was left to the trier of fact.
59We see no error in the approach of the trial judge or in his conclusion to admit the evidence of the utterances.
60For these reasons, the conviction appeal is dismissed.
(3) Sentence Appeal
61In light of the dismissal of the conviction appeal, it is only necessary to address the appellant's first ground of appeal relating to sentence.
62The appellant seeks leave to appeal the sentence of 17 years, concurrent on each charge. He submits that the sentence of 17 years was demonstrably unfit and should be reduced to 13 years.
63The appellant argues that the trial judge erred by finding, at para. 67 of his reasons for sentence, that the appellant's level of participation "was at least equal to that of Dalloo." Dalloo was the person who made all the arrangements with the seller in Guyana. He had been communicating with the seller for at least six weeks, whereas, at its highest, the appellant's involvement commenced after the cocaine was in Canada. Therefore, the appellant's level of participation was necessarily less than that of Dalloo, who was the importer. Further, the appellant argues that the trial judge failed to recognize that the appellant joined the conspiracy at a late stage and failed to treat that as a mitigating factor: see R. v. Valentini, 1999 CanLII 1885 (ON CA), 132 C.C.C. (3d) 262 (Ont. C.A.), at para. 112.
64At his sentencing hearing, the appellant argued that he was not a lead participant in the conspiracy to import and therefore deserved a lower sentence than Dalloo. It was in that context that the trial judge analyzed the appellant's role, concluding that he indeed had a high level of involvement, which included arranging for the container's safe delivery and the movement of its contents, the 112 kg of cocaine. The trial judge concluded, at para. 67 of his reasons for sentence:
All of this is consistent with Buttazzoni participating in the conspiracy at a significantly high level of involvement and financial interest, well above that of a courier. His level of participation and financial interest in the importing and distribution of the cocaine was at least equal to that of Dalloo. The evidence shows that they were working as partners with a shared interest in the safe delivery of the cocaine.
65The finding that the appellant and Dalloo appeared to be working as partners once the drugs were delivered to Ontario was consistent with the finding that the appellant conspired to import the drugs as part of a scheme to import and distribute. However, the trial judge made no acknowledgement of the fact that it was Dalloo who made all the arrangements for importing the cocaine, and pled guilty to the offence of importing, while the appellant was acquitted of that offence.
66In my view, the failure to acknowledge that significant difference in the level of the involvement of the two men led to an error in principle by treating them as equal for the purpose of sentencing. On the record, without Dalloo, the drugs would not have come to Canada.
67In Dalloo's case, the Crown asked for 16 years and the sentence imposed was 15 years. In the appellant's case, the Crown asked for 18 years, and the sentence imposed was 17 years.
68Dalloo also had a criminal record from Florida; however, his was for production of marijuana and possession of firearms. His sentence there was five years' imprisonment plus a five-year supervisory term, during which he was prohibited from possessing drugs. The sentencing judge at Dalloo's sentencing hearing also noted that Dalloo had voiced to the appellant a threat of violence to Teddy if there were to be any rip-off. The appellant voiced a similar threat about Teddy to Dalloo. The sentencing judge specifically rejected Dalloo's assertion that his motivation was just to support his family, given the magnitude of the quantity of cocaine that was brought into Canada. The sentencing judge also rejected rehabilitation as a significant factor in sentencing Dalloo, given his previous criminality and the potential effect of his offending conduct on thousands of people.
The difference for Dalloo was that he pled guilty after the preliminary inquiry and expressed remorse.
69The most relevant precedent for the purpose of sentencing both men is R. v. D'Onofrio, 2013 ONCA 145. The appellant in that case was convicted of possession of almost 112 kg of cocaine for the purpose of trafficking. Although his role was as a courier, he had high-level connections and was close to the importation scheme. He also had a related criminal record, similar to the appellant and Dalloo. D'Onofrio received a sentence of 15 years, which was upheld by this court.
70In my view, having regard to the appellant's role in the scheme in comparison with that of Dalloo, the appropriate sentence for the appellant in this case is 15 years, concurrent on both counts. Because Dalloo was the importer, his sentence would otherwise have been higher than the appellant's had he not pled guilty and properly received a reduction in light of his plea.
Disposition
71In the result, I would dismiss the appeal from conviction, grant leave to appeal sentence, and reduce the sentence to 15 years, concurrent on each count.
Released: August 8, 2019
"K. Feldman J.A."
"I agree. P. Lauwers J.A."
"I agree. I.V.B. Nordheimer J.A."
[1] Ramlall's conviction and sentence appeal was dismissed as abandoned by this court on May 3, 2016.
