Court of Appeal for Ontario

Date: 2021-10-01 Docket: C64485 & C64484

Judges: Doherty, Gillese and Huscroft JJ.A.

Between: Her Majesty the Queen, Respondent and Vito Buffone and Jeffrey Kompon, Appellants

Counsel: Mark Halfyard and Colleen McKeown, for the appellant Vito Buffone Frank Addario and William Thompson, for the appellant Jeffrey Kompon Tanit Gilliam, Amber Pashuk and Brian Puddington, for the respondent

Heard: September 15, 2021 by video conference

On appeal from the convictions entered by Justice James A. Ramsay of the Superior Court of Justice, sitting with a jury, June 12, 2017 (C64484 & C64485).

By the Court:

[1] After a 50-day trial before a jury, the appellants were convicted of conspiracy to import cocaine and several substantive offences. The Crown alleged the appellants were part of a criminal organization that, over a three-year period, imported and distributed more than two tonnes of cocaine.

[2] By the end of the evidence, the existence of the conspiracy was not seriously challenged. The Crown alleged the appellants were at the top of the criminal organization and put forward a large body of circumstantial evidence to support that claim. The appellants testified, maintaining they had no knowledge of, or involvement in, any conspiracy to import narcotics. Both offered innocent explanations for the evidence the Crown relied on as proof of their involvement in the conspiracy.

[3] The appellants appeal their convictions. The Crown seeks leave to appeal and if leave is granted appeals from the sentences imposed. The Crown asks this court to impose life sentences on both appellants. These reasons address only the conviction appeals. The Crown sentence appeal is dealt with in separate reasons.

[4] The appellants advance four grounds of appeal.

(1) The Analyst’s Evidence

[5] On the Crown’s theory, large boulders were imported into Canada and shipped to a warehouse near Port Colborne, Ontario. The Crown maintained that cocaine was secreted in the boulders and extracted from the boulders at the warehouse for distribution to various locations by some of the co-conspirators.

[6] The police searched the warehouse and found no visible signs of cocaine. They did seize three pairs of gloves and submitted those gloves to the Department of Health for analysis. The analyses found cocaine on two of the three pairs of gloves. An analyst prepared three certificates setting out the results of the analyses and the Crown tendered those certificates at trial as proof that cocaine was found on two of the three pairs of gloves.

[7] At trial, the defence argued the certificates were not admissible under the relevant provision in s. 45 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA). The trial judge ruled the certificates admissible. The defence did not seek leave to cross-examine the analyst on the contents of the certificate.

[8] The defence did, however, subpoena the analyst as a defence witness. The defence did not propose to challenge the accuracy of the certificate of analysis, but instead wanted to question the analyst on matters which the defence contended would demonstrate the limited, if any, probative value to the Crown’s case of the findings reported in the certificate. For example, the defence wanted to elicit evidence as to the amount of cocaine detected on the gloves and the location of the cocaine on the gloves. The trial judge held the analyst could not be required to testify and quashed the subpoena.

[9] On appeal, counsel renewed the arguments made at trial. Like the trial judge, we reject those arguments.

[10] Section 44 of the CDSA allows the Minister to designate analysts for the purposes of the CDSA. Section 45(1) permits a police officer to submit “any substance or sample of it taken” for analysis. The analyst may prepare a certificate stating that the substance has been analyzed and setting out the results of that analysis: CDSA, s. 45(2). The results reported in the certificate speak only to the presence or absence of a controlled substance. They provide no details.

[11] Under s. 51(1) of the CDSA, the certificate setting out the results of the analysis is admissible in any prosecution under the CDSA “in the absence of evidence to the contrary” to prove the statements set out in the certificate. The defence can cross-examine the analyst on the certificate only with leave of the court: CDSA, s. 51(2).

[12] The purpose of the statutory scheme described above seems clear. The results of the analysis of substances submitted under s. 45 of the CDSA are an essential part of literally hundreds of prosecutions that are before the courts at any given point in time. There are only so many analysts. Parliament concluded that the effective use of the time and expertise of analysts would be best served by removing the requirement that analysts attend in person to give evidence in all cases. Instead, the analyst’s evidence can be given by written certificate. That certificate is determinative of the results of the analysis, absent “evidence to the contrary”. The accused’s right to make full answer and defence is protected by providing for the cross-examination of the analyst on the results of the analysis if the court is satisfied that the analyst should be required to attend court for that purpose.

[13] At the same time that Parliament facilitated proof of evidence of the results of the analysis of the substance, Parliament restricted the nature of the evidence that could be produced by way of certificate. The certificate provides evidence only “of the statements set out in the certificate”: CDSA, s. 51(1). Those statements are limited to a description of the substance or sample received and analyzed, an indication whether the analysis revealed a controlled substance and, if so, the identity of the controlled substance: see R. v. Millier and Cyr (1968), 65 W.W.R. 96, at p. 98 (B.C.C.A.), aff’d , [1969] S.C.R. 955.

[14] The appellants submit that s. 45 had no application in this case. They contend that s. 45 can be used only if the authorities submit for analysis the actual substance they suspect to be a controlled substance within the meaning of the CDSA. The appellants contend the police submitted gloves to the analyst and were not even aware of any substance on the gloves. They argue that gloves are not a “substance” for the purposes of s. 45.

[15] There does not appear to be any caselaw directly on point. Crown counsel did provide the court with some cases in which items were submitted for analysis and certificates reporting the results of the analysis of residue found on those items were admitted at trial: e.g. R. v. Forward, 2017 NSSC 109, at para. 49; R. v. Herchuk, 2011 ABPC 275, at para. 71. None of the cases, however, address the issue raised by the appellants. Nor do the cases marshalled by the Crown go so far as to demonstrate a “common practice” as submitted by the Crown.

[16] In our view, the absence of any caselaw on point is best explained by the clarity of the language in the section. The word “substance” is not defined in the CDSA. Nor is there any language in s. 45 to suggest that the officers requesting the analysis must have a belief or suspicion of the existence of the substance eventually analyzed. Like the trial judge, we are satisfied, that on a plain reading, the word “substance” includes a substance found on an item submitted to the analyst. Section 45 contemplates a request that an analyst analyze any substance the analyst finds in the sample, or on the item submitted to the analyst pursuant to s. 45 of the CDSA.

[17] We also cannot accept the argument that reading s. 45 to include the analysis of substances found on objects submitted to an analyst somehow impairs the fairness of the trial, or an accused’s ability to make full answer and defence. Whether the analyst’s certificate speaks to a sample of a substance submitted in a vial or other container, or a substance on an object submitted to the analyst, the analytical process and the evidentiary value of the analyst’s certificate are the same. The certificate will indicate whether the substance found is a controlled substance and, if so, will identify the controlled substance. If the defence has reason to challenge the results reported in the certificate, the defence can seek leave to cross-examine the analyst.

[18] The appellants further argue that the trial judge erred in refusing to allow the defence to call the analyst as a defence witness. They acknowledge that under s. 51(2), they could cross-examine the analyst on the contents of the certificate of analysis only with leave of the court. They did not seek leave to cross-examine because they did not seek to challenge the accuracy of the certificate.

[19] The appellants submit, however, they are still entitled to call the analyst to elicit evidence on matters relevant to the probative value to the Crown’s case of the finding reported in the certificate. In effect, the appellants argue, that while their right to cross-examine an analyst on the contents of the certificate is circumscribed by s. 51(2) of the CDSA, an accused is entitled to call that same analyst as his own witness, if the analyst potentially has any relevant evidence to give.

[20] On the appellants’ approach, the defence can easily circumvent the limits imposed on requiring the attendance of the analyst at trial. An analyst will almost inevitably have evidence to give that is relevant to the case in which a certificate of analysis has been submitted. For example, the defence may want to call the analyst to elicit evidence that the results of the analysis cannot connect the controlled substance to any particular individual. That evidence would be relevant in the prosecution. On the appellants’ argument, it would be enough to require the analyst to attend court as a defence witness. The efficiencies created by ss. 45 and 51 of the CDSA would be all but lost.

[21] If the evidence of the analyst is tendered by way of certificate, the analyst has a very limited evidentiary role. In the certificate, the analyst speaks to the description of the substance analyzed and whether the analysis did or did not reveal the presence of a controlled substance. If cross-examination of the analyst is allowed, it too is limited to the accuracy of the contents of the certificate submitted by the analyst. In our view, the analyst’s limited evidentiary role cannot be expanded by calling the analyst as a defence witness on the basis that the analyst has relevant evidence to give that has nothing to do with the accuracy of the contents of the analyst’s certificate.

[22] No doubt, other properly qualified witnesses can speak to matters that will impact on the probative value of the results of the analysis. Nothing prevented the appellants from calling that evidence. Similarly, to the extent the certificate did not speak to matters relevant to the probative value of the finding of cocaine on the gloves, it was open to the appellants to make that point in argument.

[23] As the appellants did not challenge the accuracy of the certificates, and had not sought to cross-examine the analyst, the trial judge did not err in holding the analyst could not be required to respond to a defence subpoena.

(2) The Trial Judge’s Conspiracy Instructions

[24] The trial judge’s conspiracy instructions followed the three-step approach first laid down in R. v. Carter, [1982] 1 S.C.R. 938. At the first step, the jury considers whether the conspiracy alleged has been proved. At the second step, the jury considers the probable membership in the conspiracy of each of the accused. At the third step, the jury determines whether the membership of each accused in the conspiracy has been proved beyond a reasonable doubt: see R. v. Dawkins, 2021 ONCA 113, at paras. 35-42, 155 O.R. (3d) 111.

[25] The appellants allege errors by the trial judge at the second and third steps of the Carter instruction.

Step Two

[26] The appellants contend that the trial judge did not tell the jury that, when deciding whether each appellant was probably a member of the conspiracy, it could consider only the acts and declarations of that appellant.

[27] Jury instructions must be considered as a whole. It is true that in the trial judge’s first reference to the probable membership step of the Carter analysis, he did not expressly tell the jury that it could consider only the acts and declarations of each appellant. The trial judge did, however, tell the jury that the acts and declarations of others could only be considered after a finding that each appellant was a probable member of the conspiracy. By implication, the instruction told the jury that only the acts and declarations of an individual appellant were in play at the probable membership stage of the inquiry. Any possible uncertainty as to the meaning of the initial instruction was overcome in subsequent instructions. In those instructions, the trial judge expressly told the jury they could find probable membership as regards to each appellant based only on the acts and declarations of that appellant.

[28] Reading the charge as a whole, we are satisfied the jury understood that when considering probable membership in the conspiracy, the jury had to consider each appellant separately and could consider only the acts and declarations of each appellant when deciding whether the Crown had proved probable membership in the conspiracy as against that appellant.

Step Three

[29] The appellants submit that the trial judge did not tell the jury that it could use the acts and declarations of co-conspirators against the appellants at step three of the Carter instruction only if, with respect to each co-conspirator the Crown had proved probable membership in the conspiracy based on that co-conspirator’s acts and declarations. The trial judge’s instructions, however, had exactly that effect. He repeatedly told the jury that it could only consider acts and declarations of other alleged co-conspirators if satisfied those acts and declarations were done during the currency of the conspiracy and for the purpose of furthering the conspiracy. It would surely be a most unusual situation were a person to do something during the existence of a conspiracy, for the purpose of achieving the object of the conspiracy, and yet not be a member of that conspiracy.

[30] The argument that the jury should have been instructed on the “probable membership” criterion, as applied to co-conspirators was made and rejected in R. v. Farinacci, 2015 ONCA 392, at paras. 53-57, 328 C.C.C. (3d) 101. The instruction in Farinacci is similar to the instruction given here. As in this case, the trial judge did not specifically tell the jury that it had to be satisfied the co-conspirators were probable members of the conspiracy based on evidence directly admissible against each co-conspirator. In rejecting the contention that this non-direction amounted to reversible error, Pardu J.A. said, at para. 55:

I am not satisfied that this proposed additional instruction is necessary. It adds an additional layer of complexity to an already difficult charge. The requirement that the statement be made in furtherance of the conspiracy is a sufficient link to render the statement of the declarant admissible, given that by this stage the jury must have been convinced beyond a reasonable doubt that the conspiracy existed and on the balance of probabilities by evidence admissible directly against an accused that he was a member of the conspiracy.

The words of Pardu J.A. apply to this case.

[31] There would also be no advantage to the appellants in the instruction now said to be essential. As outlined above, the jury was told it could use acts and declarations of others at step three of the Carter analysis only if those acts and declarations were made and done for the purpose of advancing the objective of the conspiracy. Had the trial judge focused on probable membership as a pre-condition to the use of the acts and declarations of co-conspirators, he would have been required to outline for the jury all of the evidence capable of establishing the probable membership of each co-conspirator in the conspiracy. The Crown correctly points out the evidence capable of showing the probable membership of most, if not all, of the alleged co-conspirators was overwhelming. The approach now urged by the appellants would only have resulted in a much lengthier jury instruction, detailing all of the evidence showing the involvement of each of the co-conspirators in the conspiracy. It is difficult to see how that kind of instruction could have assisted the appellants.

[32] We see no error in the trial judge’s “Carter” instructions.

(3) The Trial Judge’s Instructions as to the Inferences to be Drawn from the Actions of Chanda Furney

[33] Chanda Furney was the appellant Kompon’s partner. They lived together. The Crown did not allege that Ms. Furney was a member of the conspiracy.

[34] When the police were searching the residence of Ms. Furney and Mr. Kompon, Ms. Furney attempted to conceal an encrypted cellphone that was on the nightstand beside the bed she and Mr. Kompon shared. It was the Crown’s theory that the encrypted phone belonged to Mr. Kompon. The Crown contended that communications on that encrypted phone provided powerful evidence of the conspiracy and Mr. Kompon’s membership in it.

[35] The trial judge instructed the jury on the evidence capable of connecting Mr. Kompon to the encrypted phone. In doing so, he referred to several parts of the evidence, including a number of texts between “Pitbull” (the name of the user of the phone) and someone using the name “Ult”. The tone of the conversations and some of the language used suggested a romantic relationship between “Pitbull” and “Ult”. The trial judge then said:

If Chanda Furney is Ult and knows about these sensitive texts, that could explain why she pocketed the phone. If she knew about it, that could be a piece of evidence from which you could infer that so did the man who shared the bedroom in which it was found. You do not have to. It is up to you.

[36] It is difficult to know exactly what the trial judge was getting at with this instruction. Any suggestion that Ms. Furney was “Ult”, based on the manner in which “Ult” and “Pitbull” addressed each other, presupposes that “Pitbull” was Mr. Kompon, the very fact the Crown had to prove. Similarly, any suggestion that Ms. Furney pocketed the phone in the belief that it would somehow connect Mr. Kompon to criminal activity cannot be admissible against Mr. Kompon without at least some evidence he was privy to her efforts to conceal the phone from the police.

[37] The trial judge recharged the jury in response to counsel’s objections. In doing so, he reminded the jury that there were many innocent alternative explanations for Ms. Furney’s pocketing the device. He also said:

And before you could use this as evidence that she [Ms. Furney] knew about its sensitive nature you would have to reject any innocent explanation that there is. And of course, if it were to be used as evidence against Mr. Kompon, you would have to take the additional step of finding that he knew about it too, which is an inference you could draw, but you do not have to.

[38] Based on the recharge, the jury could draw an inference against Mr. Kompon, based on Ms. Furney’s handling of the device, only if he knew about the sensitive contents of the device. In these circumstances, he could only have that knowledge if he was the person referred to as “Pitbull” in the texts.

[39] The initial instruction as to the inferences available for Ms. Furney’s pocketing of the encrypted phone was confusing. The recharge went a long way to avoiding any possible misuse by the jury of that evidence, as against Mr. Kompon. In any event, apart from Ms. Furney’s attempt to conceal the phone, the evidence identifying Mr. Kompon as “Pitbull” was overwhelming. Even if the instructions amounted to an improper invitation to use Ms. Furney’s attempts to conceal the device as evidence that Mr. Kompon was “Pitbull”, the instruction could not possibly have had any effect on the jury’s determination of that issue.

(4) The Instruction on the Substantive Counts

[40] The appellants correctly point out that the trial judge focused largely on the conspiracy count in his instructions to the jury. He did not reiterate the evidence summarized in the conspiracy charge when addressing the other charges. Nor did he repeat the law applicable to the co-conspirators’ exception to the hearsay rule, apart from telling them that it applied to the substantive offences as well.

[41] The trial judge accurately set out the elements of the substantive offences. He also related those elements to the evidence in the case and the bases upon which the appellants could be found to be parties to those offences. For example, in respect of count two, the charge of trafficking in a controlled substance, the trial judge told the jury:

The evidence does not suggest that either Mr. Buffone or Mr. Kompon personally trafficked in any cocaine. You may only find either one of them guilty if you find beyond a reasonable doubt that he committed the offence together with another person. You would have to be satisfied that the cocaine was trafficked as part of a scheme to which the accused and others knowingly, voluntarily and intentionally agreed with the common purpose of trafficking in the cocaine.

[42] The trial judge’s instructions are legally correct and well-suited to the specific nature of the allegation made in this case against the appellants.

[43] The appellants have failed to demonstrate any error in respect of the instructions on the substantive offences.

Conclusion

[44] The appeal is dismissed.

Released: October 1, 2021 Doherty J.A. E.E. Gillese J.A. Grant Huscroft J.A.