Court of Appeal for Ontario

Date: 20220805 Docket: C67108

Tulloch, Lauwers and Sossin JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Ronald Burgess Appellant

Counsel: Ravin Pillay, for the appellant Sarah Shaikh and Christina Malezis, for the respondent

Heard: June 24, 2022

On appeal from the convictions entered by Justice David Salmers of the Superior Court of Justice, sitting without a jury, on October 10, 2018, and the sentence imposed on May 31, 2019.

Lauwers J.A.:

I. Introduction

1This is a drug trafficking case. The appellant appeals his convictions on several trafficking and related counts, and seeks leave to appeal his sentence on the count of possession of marijuana for the purpose of trafficking, to which he pleaded guilty. For the reasons that follow, I would allow the conviction appeal. I would grant leave and allow the sentence appeal.

II. Overview

2In the fall of 2013, the Durham Regional Police Services Gang Enforcement Unit began an investigation into low and mid-level cocaine trafficking. The investigation, dubbed Project Wheeler, was driven by information from confidential sources and physical surveillance. On January 14, 2014, a wiretap authorization was granted and interception of the communications of the main targets started.

3The appellant was arrested and charged with conspiracy to traffic cocaine between January 15 and April 10, 2014 (count 1); trafficking cocaine on April 2, 2014 (count 2); trafficking cocaine on April 9, 2014 (count 5); possession of cocaine for the purpose of trafficking on April 9 and April 10, 2014 (count 6); possession of marijuana for the purpose of trafficking on April 9 and April 10, 2014 (count 7); possession of MDMA for the purpose of trafficking on April 9, 2014 (count 8); and, possession of proceeds of crime exceeding $5,000 on April 9 and April 10, 2014 (count 9).

4The appellant admitted that he trafficked in significant quantities of marijuana and conceded that he should be found guilty of that. He testified that he frequently purchased and sold marijuana in pound and multi-pound quantities. Accordingly, and in particular, defence counsel conceded and stated that the evidence proved beyond a reasonable doubt that the appellant should be found guilty of two counts – count 7, possession of marijuana for the purpose of trafficking, and count 9, for the lesser and included offence of possession of proceeds of crime not exceeding $5,000. However, the appellant denied that he was trafficking in cocaine and he denied being in possession of the cocaine, MDMA, and $1,700 found in one of his residences.

5The trial judge acquitted the appellant on count 1 and convicted him on the remaining counts. He sentenced the appellant to a global sentence of imprisonment for seven years, two months and nine days.

6I would allow the appeal on counts 2, 5 and 6 (trafficking and being in possession of cocaine for the purpose of trafficking), count 8 (being in possession of MDMA for the purpose of trafficking) and count 9 (possession of the related proceeds of crime over $5,000). I would do so on the basis that the verdict is unsafe. The trial judge did not self-instruct on the permissible use of certain hearsay wiretap evidence. His apparent impermissible use of that evidence underpinned and tainted his credibility findings against the appellant.

7The appellant was sentenced to six years for marijuana trafficking with the sentences imposed for the other convictions that I would set aside.

III. The Grounds of Appeal

8The appellant raises six grounds of appeal:

1. Did the motion judge err in finding that the appellant was properly named in the Part VI wiretap authorization?
2. Did the trial judge err in resorting to inadmissible hearsay to convict on all counts?
3. Did the trial judge reverse the onus and fail to properly apply W.(D.)?
4. Did the trial judge improperly resort to a finding of fabrication?
5. Did the trial judge misapprehend the evidence?
6. Did the sentencing judge impose an unduly harsh sentence?

9I will address only the first, second and sixth grounds, which will form the issues in this appeal. There is no need to address the other grounds.

IV. Analysis

(1) Did the motion judge err in finding that the appellant was properly named in the Part VI wiretap authorization?

10In a pre-trial application, the appellant submitted that the wiretap authorization relating to him was improperly granted. He further submitted that the search warrants for his car and his residences were invalidly issued because they were based on information obtained from the invalidly granted wiretap authorizations. The appellant requested that the trial judge exclude all his intercepted communications and all the evidence seized from his car and residences. His application was dismissed.

11In my view, the trial judge did not err in dismissing the application to exclude the wiretap evidence and what flowed from it. As noted by Watt J.A. in R. v. Mahal, 2012 ONCA 673, 113 O.R. (3d) 209, at para. 71, leave to appeal refused, [2012] S.C.C.A. No. 496, “[t]he threshold for describing a person as a ‘known’ in the supportive affidavit is a modest one”. In order for a person to be “known” for the purpose of the application of s. 185(1)(e) of the Criminal Code, investigators do not need reasonable and probable grounds to believe that the person to be added is involved in the commission of an offence, only that “the interception of that person's private communications may assist the investigation of an offence”.

12Project Wheeler sets the relevant factual context. Its targets were Christopher Bell, Jerome Dorsey, Sean Noseworthy, and their associates. The appellant first came to the investigation team’s attention when he visited Bell’s residence on December 27, 2013. He was next seen on January 2, 2014, attending an adult club in Ajax with Bell. He was thereafter the subject of surveillance that frequently started at his residence in Ajax.

13The motion judge found that, based on the evidence, it was open to the authorizing justice to have reasonable and probable grounds to believe that Dorsey, Bell, and Noseworthy were involved together in drug trafficking. The appellant’s appearance, on December 27, 2013, at the residence of Bell and Dorsey, at a time when Noseworthy was present, brought him to the attention of the investigators. The appellant was observed carrying a bag. After being in the residence for a relatively short period of time, the appellant left the residence without the bag. All of Bell, Dorsey, Noseworthy, and the appellant were in the house together for approximately 28 minutes, and were then outside in the driveway speaking together for a short time.

14The motion judge was satisfied that these circumstances left it open to the authorizing justice to have reasonable and probable grounds to believe that intercepting the appellant’s communications may assist in the investigation of the offence of drug trafficking.

15As for the investigative necessity requirement, the motion judge noted that the ITO identifies the broad goal of the investigation as being to dismantle a drug trafficking network, including the hierarchy and suppliers. He found that, considering the number of steps already taken, information already obtained, and the fact that it was a drug trafficking network being investigated, he was satisfied that it was open to the authorizing justice to conclude that there remained no reasonable means of investigation other than an authorization to intercept communications. The motion judge properly dismissed the application.

(2) Did the trial judge err in resorting to inadmissible hearsay to convict on all counts?

(a) The Factual and Legal Context

16The context for the appellant’s argument is set by the trial judge’s finding that the appellant was not guilty of count 1: conspiracy to traffic cocaine.

17The Crown argued that the conspiracy involved the appellant, Dorsey, Clarke, Bell, Noseworthy, and other individuals. There was ample evidence, and defence counsel conceded, that Dorsey, Bell, and Noseworthy were trafficking in cocaine, either as a conspiracy or a joint venture. The issue was whether the appellant conspired with any or all of them or others to traffic in cocaine. The appellant admitted that he was selling marijuana to Dorsey and Bell, but he denied that he was selling or had agreed to sell cocaine to them.

(b) The Role of the Co-conspirators’ Exception to the Hearsay Rule

18There were well over 20 wire interceptions and text messages introduced at trial that did not include the appellant as a participant.

(i) The Governing Principles

19This body of wiretap evidence was advanced to support a finding that a large conspiracy was afoot and that the acts and declarations of the co-conspirators were admissible against the appellant as an exception to the rule against hearsay pursuant to the co-conspirators’ exception to hearsay set out in R. v. Carter, [1982] 1 S.C.R. 938. The substance of the test was tersely put in R. v. McGean, 2019 ONCA 604, at para. 6:

In R. v. Carter, [1982] 1 S.C.R. 938, at p. 947, the Supreme Court established a three-stage test for the co-conspirators exception to the hearsay rule. First, the trier of fact must find beyond a reasonable doubt on all the evidence that the conspiracy exists. Second, the trier of fact must find that the evidence that is directly admissible against the accused, which excludes hearsay statements by co-conspirators, proves, on a balance of probabilities, that the accused was a member of that conspiracy. Only if these first two stages are met can the trier of fact, at the third stage, consider the acts and declarations of a co-conspirator in furtherance of the conspiracy as evidence against the accused on the issue of the accused's guilt.

See also, R. v. Dawkins, 2021 ONCA 113, 155 O.R. (3d) 111, at paras. 39-42, per Fairburn A.C.J.O.

20But in this case, the corollary or obverse of the Carter rule is in play. The trier of fact must keep in mind that “where, at the end of the trial, the evidence directly admissible against the accused was insufficient to establish his or her membership in the conspiracy, the acts and declarations of co-conspirators could not be considered as evidence against the accused,” as this court explained in R. v. Chang (2003), 173 C.C.C. (3d) 397 (Ont. C.A.), at para. 57. See also, R. v. Kler, 2017 ONCA 64, 345 C.C.C. (3d) 467, at para. 81, per Watt J.A.

(ii) The Principles Applied

21The trial judge found, on the evidence, that the appellant did not share a mutual criminal objective with the other alleged co-conspirators. Rather, his sole criminal objective was to be paid for the drugs that he provided to them. The appellant did not care whether Dorsey and Bell consumed or sold the drugs. He was in business for himself and was not part of any grander scheme to which he had agreed. Because the Crown did not prove there to be a common unlawful goal among the appellant and any other people, count 1 was not proven beyond a reasonable doubt and the appellant was acquitted.

22The appellant argues, correctly, that once it became clear that he was not part of the conspiracy, the trial judge was precluded from resorting to his alleged co-conspirators’ hearsay evidence against the appellant. The Crown concedes the point, and agrees that “the trial judge referred to intercepted communications not involving the appellant without addressing the co-actor’s exception to the hearsay rule”. However, the Crown argues that the trial judge did not misuse the hearsay evidence, and submits that on a fair reading of the reasons, in context with the issues at trial, the trial judge only used those intercepts to support the conclusion that Dorsey was a drug dealer, who was supplying cocaine to a Mr. MacKean.

23There is no doubt that if this were a jury trial, the judge would have been required to give a Carter instruction. It is good practice for trial judges in non-jury criminal trials to self-instruct on difficult issues where the risk of error is real, if only by adverting to the leading authority.

24I am mindful of the Supreme Court’s reminder in R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th), at para. 74:

Legal sufficiency requires that the aggrieved party be able to meaningfully exercise their right of appeal: Sheppard, at paras. 64-66. Lawyers must be able to discern the viability of an appeal and appellate courts must be able to determine whether an error has occurred: paras. 46 and 55. Legal sufficiency is highly context specific and must be assessed in light of the live issues at trial. A trial judge is under no obligation to expound on features of criminal law that are not controversial in the case before them. This stems from the presumption of correct application - the presumption that "the trial judge understands the basic principles of criminal law at issue in the trial": R.E.M., at para. 45. As stated in R. v. Burns, [1994] 1 S.C.R. 656, at p. 664"Trial judges are presumed to know the law with which they work day in and day out": see also Sheppard, at para. 54. A functional and contextual reading must keep this presumption in mind. Trial judges are busy. They are not required to demonstrate their knowledge of basic criminal law principles.

Observe that there is a tension between the first and second principles mentioned in para. 74. The first principle is that “[l]awyers must be able to discern the viability of an appeal and appellate courts must be able to determine whether an error has occurred” by looking at the trial judge’s reasons and the results. The second principle, which stands in tension with the first, is that trial judges do not always have to set out the applicable law because they are presumed to know and understand the basic principles at issue in the trial. This tension comes to the fore in cases in which the principles at play are neither straightforward nor routine parts of a trial judge’s work, like this one. The Carter rule and its corollary or obverse are not part of criminal law’s routine basic principles, in the way, for example, that the principles of R. v. W.(D.), [1991] 1 S.C.R. 742, would be, the recitation of which is no longer required: R. v. Stairs, 2007 ONCA 464, 225 O.A.C. 103, at para. 16; R. v. F.B.P., 2019 ONCA 157, at para. 12. Based on experience, I agree with the trenchant and understated observation that “it is obvious that the admissibility of evidence of co-conspirators is complex — even for judges”: David M. Paciocco, Palma Paciocco, Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law Inc., 2020), at p. 206.

25Because the trial judge in this case did not expressly self-instruct on what I have called the corollary or obverse to the Carter rule, this court is left to consider the text of his reasons and what he appeared to do with the inadmissible hearsay evidence, in order to discern whether he misused it. This is what I now proceed to do.

Count 2 – Trafficking Cocaine on April 2, 2014

26This count alleged that the appellant trafficked cocaine on April 2, 2014. The trial judge’s analysis of the evidence on count 2 ran from paras. 21-36, where he found the appellant guilty of the count.

27The heart of the trial judge’s analysis is at paras. 28-29. He used intercepts between Dorsey and MacKean to link a cocaine transaction with the appellant:

There were intercepted communications on April 1 and 2, 2014, between Dorsey and Mr. Burgess. I find that those communications were of plans to meet to complete a drug transaction. Mr. Burgess testified he met Dorsey on April 2, 2014 to complete a drug transaction, albeit for marijuana, not cocaine. After Mr. Burgess and Dorsey met on April, 2, 2014, Dorsey drove to Lindsay where he met and the Crown alleges that he trafficked cocaine to a man named MacKean. Mere minutes after meeting Dorsey, MacKean was arrested and found to be in possession of two bags totalling 132.2 grams of cocaine. The Crown submits that this evidence proves that on April 2, 2014, Mr. Burgess trafficked that cocaine to Dorsey who in turn trafficked it to MacKean.

On April 1, 2014, there was an intercepted communication between Dorsey and MacKean. Based on previous intercepted communications, I find that Dorsey was supplying cocaine to MacKean. In the April 1, 2014 phone call, Dorsey said that he was on his way (to do something) and that after he returned he would call MacKean and they would meet at a Dairy Queen or Tim Horton’s. Although, there were some delays, that is exactly what eventually happened. On April 2, 2014, after meeting Mr. Burgess in Ajax, Dorsey returned to Lindsay. On his arrival in Lindsay, he went directly to a Dairy Queen where he met MacKean. Minutes later, MacKean was arrested with the cocaine. All of this evidence supports the Crown’s position that on April 2, 2014, in Ajax, Mr. Burgess trafficked cocaine to Dorsey that was eventually trafficked to MacKean.

28The Crown argues that while the trial judge “did refer to hearsay communications in his reasons for convicting the appellant” on count 2, “his reliance on those communications was limited to that count and was in support of conclusions otherwise available on the evidence (and on facts conceded at trial)”.

29In my view this submission underplays the effect of the intercepted communications between Dorsey and MacKean, which were not admissible against the appellant. This emerges from the trial judge’s reasoning, at para. 35:

Considering the totality of the evidence, the Crown has proven that the only reasonable inference is that on April 2, 2014, in Ajax, Mr. Burgess trafficked cocaine to Dorsey that was eventually trafficked to MacKean. If Dorsey had cocaine on April 1, 2014, that amount of cocaine could have been trafficked to MacKean on that date. But nothing was trafficked on April 1, 2014. Instead, immediately on his April 2, 2014 arrival in Lindsay, Dorsey trafficked cocaine to MacKean. On this evidence, I find that the entire amount of cocaine found on MacKean on his arrest (132.2 grams) was cocaine that Mr. Burgess had trafficked to Dorsey that day. [Emphasis added.]

30I agree with the appellant’s submission that the underlined finding, which led to the finding of guilt, “could only have been based on the intercepted communications between Dorsey and MacKean”. That evidence was inadmissible against the appellant.

31My concern about the use of the inadmissible evidence is heightened by the trial judge’s use of the expression “[c]onsidering the totality of the evidence”, noted at the outset of para. 35 (quoted above). This was preceded by a similarly absolute statement in para. 34: “Considering the totality of the evidence, I am not left with a reasonable doubt either by Mr. Burgess’s testimony or the whole of the evidence that I do accept” (emphasis added). With respect, I see no reason not to take the trial judge at his word – he used all of the evidence on count 2, including the inadmissible hearsay evidence.

32On this basis, I would allow the appellant’s appeal of his conviction on count 2. This has implications for the other counts on which the appellant pleaded not guilty.

Counts 5, 6, 8, and 9 – Trafficking Cocaine, Possession of Cocaine and MDMA for the Purpose of Trafficking, and Possession of the Proceeds of Crime Over $5,000 on April 9 and 10, 2014

33The appellant argues that on the remaining counts, the trial judge’s findings against the appellant’s credibility were drawn from his decision on count 2, which relied on the body of co-conspirators’ hearsay evidence.

34The trial judge considered count 5 from paras. 37-70 of his reasons. Without reciting the evidence in any detail, a friend of the appellant’s, Alex Hatzis, testified and asserted that he was the owner of the cocaine trafficked on April 9, 2014. This matched the appellant’s testimony. The trial judge did not believe them. He gave a number of reasons for finding them not credible. He noted, at para. 45: “Earlier in these reasons, I discussed some factors that generally reduce the credibility and reliability of Mr. Burgess”. This was an allusion to his earlier finding made in connection with count 2, at para. 21: “I did not find Mr. Burgess to be sufficiently credible for me to believe his denial. Mr. Burgess’s testimony was often inconsistent, changed frequently, and was often non-sensible”. The trial judge referred, at para. 26, to “his testimony about later events in April 2014”. He concluded, at para. 26: “Considering all of these problems and the totality of the evidence, there are significant concerns with Mr. Burgess’s credibility and the reliability of his evidence” (emphasis added). Then, regarding count 5 itself, the trial judge stated, at para. 70: “Considering all of the evidence, Mr. Burgess’s testimony does not raise a reasonable doubt about whether it was he who trafficked the cocaine to Walls. Further, considering all of the evidence that I do accept, I am not left with a reasonable doubt that Mr. Burgess trafficked cocaine to Walls on April 9, 2014” (emphasis added).

35The trial judge addressed the other April 9 and 10, 2014 counts – count 6 – possession of cocaine for the purpose of trafficking, count 8 – possession of MDMA for the purpose of trafficking, and count 9 – possession of proceeds of crime exceeding $5,000, from paras. 74-92. Hatzis again played a role. At para. 90, the trial judge noted: “Based on my credibility and reliability findings, I do not believe Mr. Burgess’s testimony denying possession of the cocaine, MDMA, and $1,700 cash found in the 50 Town Centre Court condominium”. He added at para. 91: “Considering all of the evidence and for all of these reasons, the Crown has satisfied me beyond a reasonable doubt that only Mr. Burgess was in possession of the cocaine, MDMA, and $1,700 found in the condominium during execution of the search warrant” (emphasis added).

36I repeat what I said earlier: I see no reason not to take the trial judge at his word – he used the evidence on count 2, including the inadmissible hearsay evidence in making his credibility findings against the appellant on count 2 and on all of the other counts. The trial judge made no effort to qualify his absolute statements about his use of all of the evidence, and there is no sign that he was alive to the Carter problem. This renders unsafe the verdict on the counts to which the appellant pleaded not guilty. There must be a new trial.

(3) Did the trial judge impose an unduly harsh sentence?

37The trial judge sentenced the appellant to a global sentence of imprisonment for seven years, two months and nine days. Of that total, the trial judge allocated six years to the marijuana trafficking charge to which the appellant pleaded guilty, to be served concurrently with the cocaine trafficking sentence of seven years.

38In his sentencing reasons, the trial judge noted that there are “few, if any, mitigating factors”. He took into account the appellant’s conduct since his arrest in April 2014. This included his compliance with bail conditions for five years, his participation in a community anti-violence program and the absence of further criminal conduct.

39In terms of aggravating factors, the trial judge noted that in R. v. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762, the Supreme Court made it clear that uncharged offences can be aggravating on sentence so long as the accused is not punished twice for the same offence. He found that the criteria set out in Larche were met and that the appellant’s past conduct could be taken into account as an aggravating factor. This included the appellant’s testimony that he had been trafficking large amounts of marijuana for many years, and in the six months preceding his arrest had been trafficking an average of 20 pounds per month. The trial judge noted that the amount of marijuana and cocaine involved showed that the appellant was more than a street level dealer. He knew that the drugs he sold would be redistributed by the buyers. Further, the appellant was not dealing with a substance abuse problem. He was selling drugs as a purely commercial venture.

40The trial judge also found it aggravating that the appellant and Mr. Hatzis engaged in a “contrived scheme” to have Mr. Hatzis provide false trial testimony with a view to having the appellant found not guilty of the non-marijuana offences. The trial judge’s problematic assessment of the appellant’s credibility, explained above, led to this finding of trial misconduct relating to the Hatzis evidence. It appears to have played an outsize role in the sentencing.

41The trial judge noted that, although there was no evidence of weapons in this case, “there is always a danger of the lower-level dealers becoming involved in violence, often handgun violence”. He also referred to the appellant’s criminal record, which includes “some serious offences”. The appellant’s last conviction was in 2009, and resulted in a two-year penitentiary sentence. The trial judge took into account the gap in the appellant’s criminal record.

42The trial judge’s overall sentencing approach was that the nature of the current offences warranted consecutive sentences, but because this would lead to an overly lengthy global sentence, he made the sentences for counts 2, 7, 8 and 9 concurrent.

43As can be seen, the global sentence had several moving parts. It is not possible to extract from the factual sentencing matrix what sentence the trial judge would have imposed had the only conviction been for marijuana trafficking. I have no confidence that he would have imposed a six-year sentence for that conviction alone. In fairness to the appellant, given the trial judge’s problematic approach to the credibility evidence, which is rooted in the improper use of hearsay evidence, I would allow the sentence appeal and remit the matter to the Superior Court for re-sentencing on the marijuana trafficking conviction on count 7.