Court File and Parties
Court File No.: Halton 11-993 Date: 2013-10-24 Ontario Court of Justice
Between: Her Majesty the Queen
— And —
Eric Mulligan
Before: Justice L.M. Baldwin
Heard on: September 17, 2012; January 24, 2013; March 26, 2013; and June 6, 2013
Reasons for Judgment released on: October 24, 2013
Counsel:
- C. Hoffman, counsel for the Federal Crown
- R. Brooks, counsel for the accused Eric Mulligan
BALDWIN J.:
Charges
1Eric Mulligan is charged with four counts as follows:
(1) that on or about the 15th day of February, 2011, at the Town of Halton Hills, he did unlawfully traffic in a controlled substance, to wit: cannabis marijuana (less than 3 kilograms), contrary to section 5(1) of the Controlled Drugs and Substances Act;
(2) that on or about the 1st day of March 2011*, at the Town of Halton Hills he did unlawfully traffic in a controlled substance, to wit: cannabis marijuana (less than 3 kilograms), contrary to the Controlled Drugs and Substances Act;
(3) that on or about the 10th day of March 2011 at the Town of Halton Hills he did unlawfully traffic in a controlled substance, to wit: cannabis marijuana (less than 3 kilograms), contrary to the Controlled Drugs and Substances Act;
(4) that on or about the 10th day of March 2011 at the Town of Halton Hills he did unlawfully traffic in a controlled substance, to wit: cannabis marijuana (less than 3 kilograms), contrary to the Controlled Drugs and Substances Act.
*Count (2) was originally dated on or about the 22nd day of February, 2011. That was amended to March 1st, 2011 before the Crown closed its case to accord with the evidence.
2These four counts are straight indictable offences within the absolute jurisdiction of the OCJ.
3At the outset of the blended trial/voir dire proceedings, admissions were made as follows: jurisdiction, the substance being cannabis marijuana, the certificates being served, notice admitted, identity.
4The Crown application on the voir dire is to have hearsay statements of a separately charged youthful offender, who will be referred to as A.S. in these reasons, as made to the undercover officer in this case, admitted pursuant to the Co-conspirator Exception to the Hearsay Rule with respect to counts #2 and #3.
5The Crown submits that there is direct evidence that links Mr. Mulligan to trafficking marijuana with A.S. on counts #1 and #4.
6The Crown also relies upon s. 21 of the C.C.C. with respect to all counts.
Background
7Both Eric Mulligan and A.S. were arrested together for trafficking in marijuana on March 21, 2011 in a car following police surveillance.
8After being given youth cautions, A.S. provided a video-taped statement admitting that he trafficked drugs and that drugs were picked up at a Kingham Road address in Acton. The Crown alleges that this address is tied to Eric Mulligan.
9A.S. denied that Eric Mulligan was involved in trafficking drugs.
10A.S. pled guilty to the charges later as a youth.
11The Crown seeks to have admitted, statements made to the undercover officer (hereinafter the U/C) by A.S. referring to "Eric" as his supplier, a person known to the "client" (the U/C), and referencing the quality of drugs he can receive from his supplier. The Crown will submit that the statements were made to instil confidence in the "client" (U/C) as to the quality of what was being offered for sale and should be considered as being in furtherance of the conspiracy. The statements were made by A.S. to enhance his and his co-conspirator's credibility to arrange further and larger drug sales.
12A.S. testified as a defence witness on this voir dire, as did the accused adult Eric Mulligan.
13Both defence witnesses testified that Eric Mulligan only accompanied A.S. to help A.S.'s family pizza business by delivering pizzas.
14The Crown will submit at the end of this voir dire that the pizza delivery defence is the 'perfect cover' for this drug dealing conspiracy.
Summary of the Testimony of Nathan Moyle (U/C – Project Main Street)
15Officer Moyle has been a police officer for 13 years. He was trained as an undercover operator in October of 2008.
16In February 2011 he became involved in this matter to assist HRPS with 'Project Main Street', which was to target street level drug trafficking in the Acton area of Halton Hills.
17His fictitious name in this investigation was Nick who was from out of town. The role he established for himself was that of a land surveyor. His props consisted of a truck with markings on it, various equipment, tools and a safety vest.
The February 15th, 2011 Deal
18On February 15, 2011 he entered the Town of Acton and parked his truck on Willow Street near Church Street. He was out of his vehicle with his equipment set up.
19There is a parking lot on the corner and he spent quite a bit of time in it. He had drug related conversation there with a male who identified himself as James.
20During the conversation he observed James meet with two individuals (A.S. and Mulligan) in front of a pizza shop on Willow Street.
21"At that time James stood approximately five feet away from me and I observed him receive a bag of marijuana from one of the individuals he had gone to talk to… I clearly saw that it was a small Ziploc bag, commonly referred to on the street as a dime bag of marijuana". (Transcript Sept. 17/12 p. 14)
22The male who handed James the bag was described and later identified in the evidence as A.S.
23The other male with him at the time was described and later identified in the evidence as Eric Mulligan who was wearing a black knapsack.
24He saw the two individuals go into 'Joe's Pizza' shop. The officer walked with James back to his truck and engaged James in drug-related conversation.
25He asked James if that was his "Green Guy" meaning if that was his marijuana dealer, James replied "Yup". James stated that "everything is in this town, especially full of crack, everyone does it". (p. 15)
26Officer Moyle asked James if he could part with any of his marijuana. James pulled out the same baggie he had received in front of the pizza shop and gave him a small amount. James told the officer that he would give him A.'s number for the next time.
27The officer asked James if he could introduce him to A. now.
28The officer and James walked back to the front door area of Joe's Pizza where A.S. and Eric Mulligan were hanging around again. James spoke to A.S.
29The officer heard James tell A.S. that he (U/C) was his friend and that he was in town working and that he would like to have A.'s number.
30The officer stepped into the pizza shop to let James, A.S. and Eric Mulligan speak together in privacy.
31The officer then returned outside and joined the three of them. He approached A.S. and asked if he could call him in the future (to purchase drugs). A.S. replied "No problem".
32The officer asked A.S. if he was good for "a quarter" referencing a quarter ounce of marijuana. A.S. said "That's no problem. It would be $65 and he would meet me down by my truck. The officer said $65 seemed high and asked A.S. if it was good quality. A.S. said 'Yes it was' and that it was hydro, referencing marijuana grown with the assistance of hydro" (indoor grown).
33Eric Mulligan spoke and said that he knows another guy that wants $90 for a quarter currently. This indicated to the officer that $65 was not that high.
34The officer and James walked back towards his truck and the U/C observed A.S. and Eric Mulligan climb into a blue Kia vehicle with A.S. as the driver. They immediately drove down the street to the officer's truck where he was waiting in the driver's seat.
35A.S. pulled up to the truck and the officer approached his open window. The officer observed in A.S.'s lap a plastic bag with several small (clear) Ziploc baggies of marijuana in it.
36"The bag that was in his lap… was an empty Coffee Crisp bag, typically a bag like you would buy…small chocolate bars, maybe for Halloween, but it was full of one gram baggies of marijuana."
37The officer made this observation as he stood on the road looking directly into the driver's side of the Kia vehicle.
38A.S. counted out seven bags which were one gram each, put them in a sandwich bag, and handed them to the officer.
39A.S. handed the rest of the marijuana in the Coffee Crisp bag over to Eric Mulligan who was in the front passenger seat. Eric Mulligan took the marijuana and put it into his black knapsack, which was on the floor at his feet in front of him.
40The officer paid A.S. with a $50 bill and a $20 bill and told him that they would work out the extra $5.00 next time he saw him. The officer asked A.S. for his phone number. A.S. provided his number of 289-890-1010 and told the officer to send him a text with his phone number.
41The officer asked A.S. if he was good anytime (to buys drugs off of him) and A.S. replied that his parents owned the pizza shop and he works there all the time.
42"I thanked him and bumped knuckles with him (A.S.), which is, again, a sort of a form of shaking hands if you will, I then reached over and bumped knuckles with the passenger and asked his name, to which he replied 'Eric'. They drove off in the vehicle at that time." (p. 19)
The February 23rd, 2011 Deal
43The officer had correspondence via text messages with A.S. on February 22nd and 23rd about buying more marijuana. The officer asked for half an ounce. A.S. replied that he could do eleven grams for $95.
44On February 23, 2011 at 4:52 p.m., A.S. approached the officer in his undercover truck at the predetermined meeting spot, which was the vacant parking lot at Willow and Church Street. A.S. was on foot and he was alone.
45A.S. opened the officer's passenger side door and leaned in. A.S. handed the officer a box and stated "It's in there". The officer opened the box and observed a sandwich bag full of marijuana separated into 10 individual one gram baggies.
46A.S. stated that this was all that he had and he asked $90 for it. A.S. stated that the quality was not as good as the stuff before. The officer had further conversation with A.S. regarding his drug activities.
47"And I made reference to there only being ten grams of marijuana, to which he advised that he's already dealt out three ounces today. He's all out now. I asked him if he's busy and if he deals a lot. He replied that he is very busy. He has a dealer in Georgetown who he has bought out and another one in Acton who he will be getting more from. He stated he has been dealing about a month. I made inquiries with him about getting larger amounts of marijuana from him in the future so I do not have to keep bugging for small amounts, and I was looking to be at the ounce level with him. He said that that would be no problem and he could get it any time…I paid A.S. $90 for the ten grams of marijuana, thanking him and telling him I will be in touch. He left my vehicle on foot through the parking lot". (p. 21)
The March 1st, 2011 Deal
48On March 1st the officer called A.S. at 6:26 p.m. and said he was looking for an ounce of marijuana. A.S. said he would text him back.
49Two minutes later the officer received a text from A.S. stating that he could get "10 G's right now". Four minutes later he received a call from A.S. saying that he could not talk at that time as he was with his dad. The officer told him that he was looking for an ounce of marijuana.
50A.S. advised that his guy in town was down to his last ten grams, "It is good quality and it is better than the last stuff he sold me". The officer asked if he could reach out to his source in Georgetown. A.S. said he would check and would call him back.
51At 6:42 p.m. A.S. called back advising that his guy in Georgetown had to go reload in Guelph. They discussed the type of marijuana and the price that his Georgetown supplier has. The officer said that he would take the ten grams which A.S. had now and would get more from him later in the week.
52A.S. told the officer to meet him in the same lot as before in a few minutes. "He will go get it as the guy lives close to there". (p. 23)
53The officer proceeded to the Willow and Church Street parking lot and parked in a space.
54A.S., who was driving an older yellow Honda Civic, pulled in beside him.
55"I exited my vehicle to his open driver's side window. We had general conversation. During the conversation he advised me that he is working now, which I assumed delivering pizzas, and that he does most of his dealing while on delivery as that is less suspicious to the cops. He bragged about getting stopped the other day by the police while having weed in his car and retrieved from his coat pocket, and counted out in front of me, ten one gram dime bags of marijuana. He handed the ten baggies to me at which point I retrieved an empty coffee cup from my vehicle just to store the ten baggies in…A.S. stated to me that this was better than the last stuff. I asked, 'This guy you get from, that Eric guy I met on the first time?' To which he replied, quote, 'Yeah, the tall guy' , end quote". (p. 23; and again on day #2 at p. 4)
56The officer told A.S. he would probably be back in town on Thursday and asked A.S. for one or two ounces. A.S. advised that would be no problem. The officer paid him $90 in cash and they parted ways.
57The officer had regular text message conversations with A.S. on March 2nd, March 3rd, March 8th and a deal was arranged for March 10th.
The March 10th, 2011 – Deal #1
58"For March 10th we agreed, via text, for me to purchase two ounces of marijuana from him at that time." (p. 26)
59As arranged in the text messages, at 6:15 p.m., the officer parked in the northwest corner of the parking lot used before. He sent A.S. a text message indicating that he was there. Moments later A.S. drove up in a yellow Honda Civic and pulled into the lot from Willow Street beside the driver's side of the U/C's truck.
60A.S. exited his vehicle and retrieved items from his backseat. Eric was seated in the front passenger seat.
61A.S. entered the passenger seat of the U/C's truck. They had a brief conversation about him working and being out delivering pizzas "when he immediately handed me twelve one gram dime bags of marijuana, and Ziploc sandwich bags containing loose marijuana." (p. 27) A.S. gave him two 57 grams of marijuana and indicated that he was giving the U/C one gram for free.
62The U/C asked 'how much' and A.S. advised that he paid $215 an ounce, so he wants $225 from me, $450 in total and that he would only be making $20 off this transaction. The officer handed over $450 in cash.
63"I asked A.S., 'Is that Eric?', referring to the male in the front seat of his vehicle, to which A.S. replied, 'Yeah'. I asked, 'is that where you got this stuff', referring to the marijuana I just purchased, to which he replied, 'Yeah, I did but it's different than the last stuff." (p. 28)
The March 10th, 2011 – Deal #2
64At that time the U/C received a pre-planned call from another officer (D/C Perron) who was acting as a friend of his who was looking for marijuana. The U/C wanted to indicate to A.S. that he was looking for more marijuana for his friend and that he wanted to buy larger amounts from him. The U/C asked A.S. how much he had now as his buddy was looking for some marijuana.
65"A.S. stated that he only had about half an ounce left. I stated that my friend was looking for at least an ounce, and asked if Eric had more. A.S. said, 'no, that this was the last of it" (p. 29), but he (A.S.) could go elsewhere.
66The U/C asked how long it would take. A.S. replied that he was doing pizza deliveries now, but will pick it up along the way. The U/C asked A.S. to call him when he was ready. A.S. re-entered his vehicle and drove away.
67At 6:55 p.m., the U/C texted A.S. and asked 'how's it looking?' A.S. immediately responded 'Yo, everyone's out and I have 11 Gs left if you want them.' Within that same minute of 6:55, the U/C received another message from A.S. saying 'never mind, I found one.' (p. 30)
68The U/C understood that to mean that A.S. had found an ounce of marijuana that he could sell to him.
69They arranged to meet in the same parking lot used before in 10 to 15 minutes.
70At 7:01 p.m., the U/C received a text from A.S. stating that he's going to pick up the ounce now, but it's not the best quality. The U/C asked how much. A.S. replied $200.
71The U/C asked how long it would take and if he could go get it himself. A.S. said no, that he (the supplier) doesn't like to meet new people; it's at his girlfriend's house as that's where he keeps all of his stuff anyways. The U/C replied okay and that he would see him in the parking lot (at Church and Willow).
72At 7:18 p.m. he received a phone call from A.S. stating that he wanted to meet him in the Olde Hide House parking lot at the end of Church Street. That location was 6 to 10 blocks away from the lot they had met in before.
73The U/C agreed and proceeded down Church Street to a stop sign which leads into the Olde Hide House parking lot.
74"I saw A.S.'s vehicle pull out of the parking lot and drive towards me on Church Street. I stopped on Church Street as did A.S. in his vehicle directly beside my driver's side door facing the other way. A.S.'s driver's side window was down, as I'm driving a full size pickup truck, A.S.'s is driving a Honda Civic, I have a clear line of sight and view inside his vehicle observing him and I could clearly see that Eric was still in the passenger's side of the vehicle. I observed Eric reach into the top left area of his coat. I could not tell if he was going into an inside pocket or a shirt pocket, but into the top left area of his coat, and pull out a clear bag and he immediately handed it to A.S…A.S. immediately tried to hand the bag to me through the open window. I could clearly see that it was marijuana within the bag." (p. 32)
75The U/C told A.S. that this looks bad doing this on the street in open view of anybody and he directed A.S. into the parking lot which was immediately to the right of his vehicle.
76A.S. and the U/C pulled into the parking lot. A.S. exited his vehicle and approached the U/C's open driver's side window and handed the U/C what appeared to be the same clear sandwich bag of marijuana. The U/C paid A.S. $200 and they parted ways.
77On March 21st at 10:42 a.m., the U/C received a text from A.S. stating "Hey man, you need any this week?" The U/C replied that he wanted to buy more drugs. They texted back-and-forth talking about weight, time, location, cost etc. The U/C did not meet again with A.S. and Eric as the investigation was coming to a close.
78Two photographs were entered as Exhibits #1 and #2 showing A.S. and Eric Mulligan, wearing the same clothing the U/C had noted on February 15, 2011, together beside the yellow Honda Civic.
79In cross-examination, Officer Moyle repeated the evidence he had given in examination in-Chief.
80The main points made during the cross-examination were as follows:
(1) A.S. gave his number to the U/C personally;
(2) The U/C did not ask for or get Eric Mulligan's phone number;
(3) The U/C could not say for sure who owned the black backpack.
"I guess I don't know for sure with certainty who owns the backpack, but the backpack was sitting between Eric's legs on the floor, which he had full control, access, and I would suggest knowledge of what was in it as he opened the backpack and could clearly see in it." (Tr. day #2 p. 14 re: Feb.15/11 deal)
(4) Eric Mulligan did not provide any drugs to the U/C directly;
(5) The U/C never gave Eric Mulligan any money for drugs.
81Defence counsel asked a number of questions suggesting that A.S.'s statements with respect to Eric being his supplier 'was nothing more than dismissing a nosy question' from a drug purchaser.
82Officer Moyle disagreed each time the question was asked and stated that if A.S. did not want to identify his supplier he would have more likely told the buyer that it was none of their business. Further, as the U/C was looking for a particular quality of drug, where he knew that A.S. had gotten it from before, A.S. would want to reassure him that yes, this is the same stuff, the good stuff. (Tr. day #2 p. 19, 20, 21, 25, 26, 27)
Summary of the Testimony of Omar Nadim (Project Main Street – Surveillance Officer)
83Officer Nadim has been employed with HRPS since 2004 and has been working with the Drug and Morality Unit since 2009.
84His involvement with Project Main Street began in February 2011 targeting the Acton area for street-level drug trafficking after numerous complainants from members of the public and confidential information.
The March 1st, 2011 Deal
85Officer Nadim's direct involvement began on March 1st, 2011 at approximately 5:00 p.m.
86He, together with other members of the team, arrived in that area of Main Street in Acton.
87At 6:48 p.m. he observed A.S. driving his yellow Honda Civic northbound on Main Street. A.S. stopped his vehicle on the east shoulder outside of 103 Main Street for a period of less than a minute.
88He observed Eric Mulligan approach A.S.'s vehicle on the passenger side and leaned into it with a package in his hand. (Tr. day #2 p. 41, 42, 46)
89Eric Mulligan then walked away from the vehicle with nothing in his hand and returned to 103 Main Street (his residence at the time).
90Officer Nadim believed from his training and experience that this was a hand-to-hand drug transaction. (p. 44)
91Other members of the team conducting surveillance on A.S. advised at approximately 7:00 p.m., over the radio, that the U/C was successful in completing a drug buy from A.S. in the parking lot.
92Officer Nadim believed based on his training and experience and the totality of the investigation, that the drugs sold to the U/C on March 1st were provided to A.S. by Eric Mulligan when he leaned into the car and left a package the size of the palm of his hand in the car.
The March 10th, 2011 Deal #2
93He conducted surveillance on A.S. and followed him to Kingham Road in Acton where he dropped off a passenger. (Mulligan per surveillance evidence of D/C LaFramboise)
94He then observed A.S. meet with the U/C in the area of Church Street in the parking lot and he observed the drug buy.
The March 21st Arrest
95At approximately 2:42 p.m., he observed A.S. operating his yellow Honda Civic with Eric Mulligan in the passenger seat. They were travelling northbound on Main Street.
96Officer Nadim dealt with A.S. at the arrest scene and located drugs on him. Officer Nadim didn't think any drugs were located on Eric Mulligan at the time of the arrest.
Summary of the Testimony of Anita LaFramboise (OIC/Exhibits Officer – Operation Main Street)
97Officer LaFramboise has been with the HRPS since 2004 and has worked in the Drug and Morality Unit, now called the Integrated Drug, Gun and Gang Unit, since 2009.
The February 15th, 2011 Deal
98That day she was primarily conducting surveillance. She observed the original interactions with the U/C, A.S. and Eric Mulligan that day.
99She took the photographs marked as Exhibits #1 and #2 that day.
100She observed the drug buy that day as testified to by Officer Moyle as set out above in these reasons. (Tr. day #2, p. 54)
March 10th, 2011 Deals #1 & #2
101She was in Acton providing surveillance for the U/C again.
102At 6:15 p.m., she saw the drug buy in the parking lot at Willow and Church Street. A.S. exited his vehicle and entered the U/C's vehicle. There was a second male in A.S.'s vehicle (Eric Mulligan).
103At 8:17 p.m., she observed A.S. pull out front of an address on Kingham Road. The passenger in the car with him was Eric Mulligan. (p. 58)
104Eric Mulligan exited the vehicle, no pizza in hand. He then returned to the vehicle.
105As the Exhibits Officer, she confirmed that all the drugs turned over to her by the U/C in this investigation were in clear plastic bags.
The March 21st Arrest
106Officer LaFramboise was present for the arrest. She testified that the drugs found that day were located in a black backpack in the vehicle. The drugs were attributed to belonging to both A.S. and Eric Mulligan. Eric Mulligan was not charged with respect to those drugs that day do to an "oversight." (p. 62)
107In cross-examination, the Officer agreed that on March 10th A.S. and Mulligan had also been delivering pizzas. (p. 63)
Summary of the Testimony of A.S.
108At the present time he is 19 years of age and is the owner of a convenience store.
109He was charged with trafficking in marijuana with respect to these matters and pled guilty in 2011 as a 17-year-old young offender. He was sentenced to 6 months of probation and ordered to perform 60 hours of community service (after providing some assistance to the police).
110After his arrest in these matters he provided a videotaped statement to the police. When asked if he told the police the truth in that statement he replied "most parts, yes." (p. 67)
111He has known Eric Mulligan for 5 or 6 years or longer. The reason he was with Eric so much during the period of time that these offences were committed is because Eric was his best friend and because Eric was assisting him with the other job that he had delivering pizzas and flyers. (p. 68)
112A.S. testified over and over again that Eric was not involved with selling drugs with him. (p. 67, 68, 71, 77 etc.)
113He was just agreeing with the U/C when he was asked by him if Eric was supplying him with drugs.
114"I never bought drugs from Eric. I was just blowing the cop off, because I didn't want to talk to him...Just to get him off asking me like who I buy it from so he doesn't go buy off him instead of me." (p. 69)
115In cross-examination A.S. agreed that if he had been charged with trafficking in drugs as an adult he would have expected a jail sentence. (p. 70)
116A.S. agreed that Eric was with him on February 15th, 2011 when he sold drugs to James Atkins, discussed selling drugs to the U/C, and sold drugs to the U/C.
117A.S. denied that Eric spoke to the U/C that day and said "I know another guy that wants $90 for a quarter currently". (p. 73)
118A.S. denied that after he gave the U/C seven dime bags that he handed the remaining baggies to Eric who put them in the backpack at his feet. "No, I just put (it) in the school bag." (p. 74)
119A.S. testified that it was his school bag. Eric had this bag by his feet in the passenger side of the car.
120A.S. agreed that Eric was present when conversation occurred with the U/C about the drugs. A.S. agreed that Eric knew he was a drug dealer.
121A.S. testified that Eric was living at 103 Main Street at the time. He did not think Eric had a girlfriend or knew anyone that lived on Kingham Road.
122On March 10th, before the second deal with the U/C, he and Eric drove to the Kingham address.
123A.S. testified that Eric did not go up to that address to pick up drugs and bring them back to the car. "She brought the drugs to the car". (p. 76)
124A.S. denied that Eric gave him drugs on March 1st when he drove to the residence at 103 Main Street just before the drug deal with the U/C.
125When asked why Eric had come to his car, A.S. said "He was just coming to talk to me." (p. 79)
126A.S. could not remember what they chatted about. Maybe he wanted Eric to go on a pizza delivery with him (p. 81, 82). They chatted for a minute or two. Later in questioning, A.S. stated that he was supposed to pick Eric up for the deliveries, but then Eric had something to do. A.S. stated the he was in a hurry so he just texted Eric to come outside. (p. 82)
127A.S. testified that after the chat at 6:48 p.m., he drove to Kingham to get the drugs before he met the U/C for the deal at 6:52 p.m.
128When asked how to explain that officers who had him under surveillance did not see him go to Kingham that day, A.S. replied "I have no idea then." (p. 81) A.S. testified that Kingham is just a 30 second to a minute drive from 103 Main Street.
129On March 10th Eric did not get out of the car at Kingham Road. "Person came to the car again." (p. 88)
130A.S. testified that near the Hide House drug buy Eric did not handle any of the drugs. (p. 89, 90)
131A.S. testified that the clear bag of marijuana was under his own seat at the time. (p. 90)
132A.S. denied that he was testifying to protect his friend Eric from being found guilty in this case.
Summary of the Testimony of Eric Mulligan
133Eric testified that he is presently 21 years of age and lives with his mother and stepfather in Acton.
134He attends the Gary Allen School for math and English and works as a general labourer.
135He met A.S. in Grade 9 at the Georgetown High school. He has known A.S. for 5 or 6 years. They were best friends and hung out more and more.
136A.S.'s family owned Joe's Pizza, a laundry mat and a convenience store. The S. family has lots of money. They live in a nice house in Georgetown and they drive nice cars – a young S. drives a new Mercedes.
137Eric testified that he would help out with the family's Pizza business. He made pizzas and went on deliveries with A.S. to put flyers in people's boxes for advertising.
138Eric testified that he never assisted or knew about A.S. selling drugs. He did not receive any profit from drug selling.
The February 15th Deal
139In cross-examination Eric testified that he has never met a James and never saw A.S. sell drugs to James Atkins. When questioned about this happening right in front of him, Eric testified that he didn't recall.
140When asked about being present when A.S. sold 7 dime bags to the U/C on February 15th, Eric testified that he did not see that and that he does not recall seeing it.
141Eric testified that he did not listen to the conversation between A.S. and the U/C.
142He heard no talk about marijuana. He does not recall putting unsold marijuana in a backpack at his feet. He does not recall bumping hands with anybody.
143Eric testified that A.S. never told him that he made drug runs when delivering pizzas. Eric denies that A.S. was a known drug dealer. 'He kept everything a secret from me'. (4th day of trial)
The March 1st Deal
144Eric testified that A.S. showed up at his 103 Main Street address that evening to go on a pizza delivery to Rockwood with him. He told A.S. no. He was busy and was not going out that night.
The March 10th Deal
145Eric testified that he didn't know who A.S. was meeting when A.S. got out of the car just off Church Street. He did not know why A.S. stopped there. It was dark and he did not see A.S. take anything to the U/C. He saw A.S. get into the U/C's truck. 'It was not my business what he was doing – I was just delivering pizzas.' (4th day of trial)
146Eric testified that he does not know who lives on Kingham Road. He did not get out of the car at Kingham Road. A.S. always handles the pizza deliveries at the door. On the odd occasion he would go to the door.
Counts #1 and #4
147There is direct evidence that Eric was assisting A.S. in trafficking drugs on February 15th and March 10th for drug deal #2.
148The case to be assessed with the respect to these counts rises or falls on a WD analysis and the application of s. 21 of the CCC (before considering the Co-conspirator Exception to the Hearsay Rule, which I rule as admissible as discussed further in these reasons).
149The defence submits that Eric was nothing more than a pizza/flyer delivery man.
150The Crown submits that the pizza delivery story was a ruse and the perfect cover for this joint drug dealing venture.
151I agree with the Crown. The evidence in this case was detailed and compelling. The denials by A.S. were hollow and the denials by Eric defy all common sense.
152According to A.S., Eric knew he was selling drugs but Eric was not part of it.
153Most prominent in the web of lies is Eric's testimony that he did not know that A.S. was selling drugs. This makes absolute no sense since most of the deals that happened in this case occurred right in front of him. According to Eric, A.S. kept it a secret from him. He didn't see anything. He didn't hear anything. He didn't say anything to the U/C. He didn't pass anything to A.S. He rarely even got out of the car when they were delivering pizzas.
154What kind of a pizza delivery man is this? That question is easy to answer. The pizza delivery job was a cover story for drug dealing. This pizza delivery story does not leave me in a state of reasonable doubt. I am satisfied beyond a reasonable doubt that the officers accurately and reliably observed and recorded the activities of A.S. and Eric Mulligan during the course of this investigation. Where their testimony differs from A.S. and Eric Mulligan's, I accept the evidence of the officers.
155I am satisfied beyond a reasonable doubt of Eric Mulligan's guilt on counts #1 and #4 and findings of guilt are registered.
Counts #2 & #3 and Application of the Co-conspirator's Exception to the Hearsay Rule
156I have underlined the testimony of the U/C officer's evidence that is at the core of this Crown Application (both direct and indirect). The Crown applies to have A.S.'s statements to the U/C that Eric was his drug supplier admitted into evidence.
157Co-conspiracy hearsay is admissible if three facts are established in the evidence:
(1) A conspiracy existed, beyond a reasonable doubt;
(2) Direct evidence admissible against the accused proves, on a balance of probabilities, that the accused was a member of the conspiracy;
(3) The hearsay act or declaration was made in furtherance of the conspiracy proven.
158These factors are known collectively as the "Carter rule", after the leading case on the admissibility of co-conspirator hearsay (R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938).
159I am satisfied beyond a reasonable doubt that A.S. and Eric were engaged in a joint venture for the purpose of drug dealing. A.S. was the hand-to-hand salesman. Eric was the supplier who had drugs both at his 103 Main Street address and at his friend's address on Kingham Road.
160I am satisfied that A.S.'s statements to the U/C about Eric being his supplier were made in furtherance of the conspiracy because they were made to bolster the buyer's confidence in the quality of drugs that A.S. could provide, to also entice the buyer into other and bigger buys, and further, to assure the buyer that A.S. had quick access to quality drugs from his guy in town.
161Conversations between drug traffickers and their clients are often found to satisfy the in furtherance requirement. In R. v. Bogiatzis, 2010 ONCA 902, the Ontario Court of Appeal found that Mr. Bogiatzis' co-accused was attempting to further a conspiracy to traffic when he boasted about the quality of his cocaine by referring to his supplier's name.
162I have used the direct evidence in this case to find that Eric was a member of this drug dealing conspiracy on a balance of probabilities.
163I have used the co-conspiracy hearsay evidence as evidence to establish this fact beyond a reasonable doubt.
164I also find that the principled approach to the hearsay rule exception would have allowed these statements into evidence given that reliability and necessity has been established. In this case A.S. has testified and he has denied the statement made to the U/C. I have rejected his evidence.
165Even without using the hearsay statements of A.S. to the U/C, I am satisfied beyond a reasonable doubt that Eric Mulligan was assisting A.S. as party to the drug buys in this case. He was physically present when James Atkins bought drugs and for 2 of the deals with the U/C. He was under surveillance and observed passing a package to A.S. minutes before the other deal. He gave his own name to the U/C and did the hand-bump with him the first day that drugs were purchased. He physically handled the drugs on two of the buys.
166After applying the WD tests, I am not left in a state of reasonable doubt about Eric Mulligan's guilt on counts #2 and #3. The evidence of guilt in this case is overwhelming.
167Counsel referred the Court to many cases during the course of their submissions. They have all been considered in the preparation of these reasons and I thank both counsel for their research. (R. v. Mapara, 2005 SCC 23; R. v. Richardson, 2003 CanLII 3896 (ON CA); R. v. Niemi, 2006 CanLII 13949 (ON CA); R. v. Magno, [2012] ONSC 4001; R. v. Mota, (1979) 46 C.C.C. (2) 273 (OCA); R. v. Shirose, 1997 CanLII 3462 (ON CA); R. v. Yanover, 1985 CanLII 3619 (ON CA); R. v. N.Y., [2008] O.J. No. 2228 (Ont. SCJ); R. v. Barnes, [2007] 72 W.C.B. (2d) 733 (Ont. SCJ); R. v. Oliynyk, [2005] BCSC 881; R. v. Colin Simpson, [2007] ONCA 793; R. v. Chang, 2003 CanLII 29135 (ON CA).)
Conclusion
168Findings of guilt are registered on all four counts.
Sufficiency of Reasons for Judgment
169The original trial time estimate by counsel in this matter was just 4 hours (Transcript September 17/12 p. 34). It has taken 5 court days to get to the final judgment in this matter. During the course of this trial, all of the witnesses' evidence, Exhibits filed, and submissions made, have been carefully reviewed and assessed. It is not necessary or reasonable for me to review all of the evidence in any more detail than I have in these focused reasons for judgment. It must be understood that busy trial court Judges must deliver both oral and written reasons in hundreds of trial matters every year and we are required to do so in a timely fashion. Judgment writing time is not factored into trial time estimates. The OCJ Judges do not get judgment writing weeks like the SCJ Judges. In Halton, the fastest growing Region in Canada, judgment time is being eroded by the increasing trial case load and the pile up of long, split-up trial continuations.
170This Court is aware of appellant authority governing the sufficiency of reasons by trial Courts and has been guided accordingly. See R. v. Vuradin, 2013 SCC 38; R. v. S. (T.), [2012] ONCA 289; R. v. H. (J.M.), 2011 SCC 45; R. v. Drabinsky, [2011] 107 O.R. 93 (OCA); R. v. Dinardo, 2008 SCC 24; R. v. R.E.M., 2008 SCC 51; R. v. Walker, 2008 SCC 34; R. v. Gagnon, 2006 SCC 17; R. v. Braich, 2002 SCC 27; R. v. Sheppard, 2002 SCC 26.
Released: October 24, 2013
Signed: "Justice L.M. Baldwin"