R v. Boother et al., 2015 ONCJ 478

WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.— (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any newspaper or broadcast before such time as, in respect of each of the accused,

(c) he is discharged, or

(d) if he is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court File and Parties

Court File No.: Region of Durham 998 14 25207

Ontario Court of Justice

Between:

Her Majesty the Queen

Ms. A. Francis and Ms. A. Elbaz for the Crown

— And —

Kyle Boother, Zachary Joyce-Vautour, Dane Ramsay-Morris, and Marshall Brown

Mr. S. Proudlove for Kyle Boother Ms. M. Wyszomiersk for Dane Ramsay-Morris Ms. J. Hue for Zachary Joyce-Vautour Mr. M. Pierce for Marshall Brown

Heard: August 4, 7, 10–12, 17–18, & 20, 2015

De Filippis J.

Introduction

1In December 2013 members of the Durham Regional Police Service Drug Enforcement Unit conducted an investigation into cocaine trafficking in Durham Region. The investigation was named Project Bermuda. On the basis of information from two confidential sources, police conducted surveillance on Kyle Boother and came to believe he was trafficking in cocaine. This surveillance also caused investigators to suspect that Zachary Joyce-Vautour was an associate of Boother in the drug trade. In February, the police made a covert entry into a residence registered to Joyce-Vautour and found illicit drugs and a firearm.

2On June 2, 2014, the first of two authorizations to intercept private communications was granted. On July 29, 2014, 23 search warrants were executed in relation to this Project. Seizures made at the various locations included 1628 grams of cocaine, almost 18 kilograms of marijuana, as well as a variety of other drugs and drug paraphernalia. In addition, approximately $170,000, two restricted firearms, as well as air pistols, stun guns, a bullet proof vest, brass knuckles and various knives were located. Twenty four people were arrested.

3I case managed this matter and conducted numerous judicial pre-trials, both as a group and with individual counsel. I appreciate the professionalism of all counsel and the assistance of Mr. Lutz, on behalf of Legal Aid Ontario. Eventually a number of defendants resolved their matters by guilty pleas and/or withdrawal of charges and two preliminary hearings were held for "Bermuda 1 and 2". The present case proceeded with the four remaining accused in Bermuda 2.

4The Crown claims that Boother and Joyce-Vautour were busy drug dealers in Durham Region during the period covered by the Information. Much of the evidence, especially the intercepted communications, tracks their activities. It is alleged that Ramsey-Morris and Brown supplied Boother and Joyce-Vautour with cocaine. The evidence pertaining to Brown and Ramsay-Morris is clustered around two events; one on June 29, 2014 and the other between July 7–10, 2014.

5Counsel for Boother and Joyce-Vautour conceded committal for trial on certain counts. These are fair concessions by counsel, having regard to the evidence received and the test I must apply at a preliminary hearing. The counts upon which the Crown proceeded, with concessions and notes, are as follows:

• Count 2: Possession of Cocaine for the Purpose of Trafficking (Boother, Joyce-Vautour) — committal is conceded by Joyce-Vautour but contested by Boother

• Count 3: Possession of MDMA for the Purpose of Trafficking (63g) (Boother, Joyce-Vautour) — committal is conceded by Joyce-Vautour but contested by Boother

• Count 4: Possession of Marijuana for the purpose of trafficking (535g) (Boother, Joyce-Vautour) — committal is conceded by Joyce-Vautour but contested by Boother

• Count 5: Careless Storage of a Firearm (Boother, Joyce-Vautour)

• Count 6: Unauthorized Possession of a Restricted Firearm (Boother, Joyce-Vautour) — committal is conceded by Joyce-Vautour but contested by Boother

• Count 7: Unauthorized Possession of a Restricted Firearm (Boother, Joyce-Vautour) — committal is conceded by Joyce-Vautour but contested by Boother

• Count 9: Unlawful Possession of a Restricted Weapon (Revolver) (Boother, Joyce-Vautour) — committal is conceded by Joyce-Vautour but contested by Boother

• Count 10: Unlawful Possession of a Restricted Weapon (Revolver) while being Prohibited to do so under s.109(2) (Boother)

• Count 11: Possession of Proceeds of Crime Over ($6,000) (Boother, Joyce-Vautour) — committal on this count is conceded by Joyce-Vautour but contested by Boother

• Count 12: Traffic Cocaine (4.5oz) (Boother) — committal is conceded by Boother

• Count 13: Possession of Cocaine for the Purpose of Trafficking (4.5oz) (Joyce-Vautour) — committal is conceded by Joyce-Vautour

• Count 15: Possession of Cocaine for the Purpose of Trafficking (2oz) (Boother) — committal is conceded by Boother

• Count 17: Possession of Cocaine for the Purpose of Trafficking (2oz) (Boother)

• Count 21: Possession of Marijuana for the Purpose of Trafficking (2lbs) (Boother) — committal is conceded by Boother

• Count 23: Possession of Cocaine for the Purpose of Trafficking (2oz) (Boother)

• Count 39: Traffic Cocaine (9oz) (Brown)

• Count 40: Possession of Cocaine for the Purpose of Trafficking (9oz) (Boother) — committal is conceded by Boother

• Count #43: Conspiracy to Traffic Cocaine (Boother, Joyce-Vautour, Chamberlain) — committal is conceded by Boother but contested by Joyce-Vautour

• Count 44: Traffic Cocaine (9oz) (Boother, Ramsey-Morris)

• Count 45: Possession of Cocaine for the Purpose of Trafficking (9oz) (Joyce-Vautour)

• Count 46: Possession of Cocaine for the Purpose of Trafficking (17oz) (Boother, Joyce-Vautour) — Joyce-Vautour concedes committal but it is contested by Boother

• Count 47: Possession of MDMA for the Purpose of Trafficking (5g) (Boother, Joyce-Vautour) — The Crown concedes it has not established Possession for the Purpose of Trafficking

• Count 48: Possession of Marijuana for the Purpose of Trafficking (3oz) (Boother, Joyce-Vautour) — The Crown concedes it has not established Possession for the Purpose of Trafficking

• Count 49: Possession of Oxycodone for the Purpose of Trafficking (10 pills) (Boother, Joyce-Vautour) — The Crown concedes it has not established possession for the purpose of Trafficking

• Count 50: Possession of Proceeds of Crime Under ($1,050) (Boother, Joyce-Vautour) — committal is conceded by Joyce-Vautour but contested by Boother

• Count 55: Possession of Cocaine for the Purpose of Trafficking (4oz) (Joyce-Vautour)

• Count 66: Possession of Marijuana for the Purpose of Trafficking (2lbs) (Joyce-Vautour)

• Count 70: Possession of Cocaine for the Purpose of Trafficking (2oz) (Joyce-Vautour)

• Count 94: Careless Storage of a Firearm (410 Calibre shotgun) (Boother, Joyce-Vautour) — committal is conceded by Joyce-Vautour but contested by Boother

• Count 95: Unauthorized Possession of a Firearm (Boother, Joyce-Vautour) — committal is conceded by Joyce-Vautour but contested by Boother

• Count 96: Unauthorized Possession of a Firearm (Boother, Joyce-Vautour) — committal is conceded by Joyce-Vautour but contested by Boother

• Count 97: Unlawfully Possess a Loaded Firearm (Boother, Joyce-Vautour)

• Count 98: Unlawfully Possess a Firearm Knowing that it has been Obtained by the Commission of an Offence (Boother, Joyce-Vautour)

• Count 99: Possession of Marijuana for the Purpose of Trafficking (64g) (Boother, Joyce-Vautour) — Joyce-Vautour contests Possession for the Purpose of Trafficking

• Count 100: Possession of Cocaine for the Purpose of Trafficking (25g) (Boother, Joyce-Vautour) — committal for this count is conceded by Joyce-Vautour

• Count 101: Possession of Proceeds of Crime Under ($5,000) (Joyce-Vautour) — committal is conceded by Joyce-Vautour

• Count 110: Possession of Proceeds of Crime Under ($1,870) (Boother) — committal is conceded by Boother

• Count 111: Possession of Marijuana (7.9g) (Boother) — committal is conceded by Boother

• Count 112: Possession of Cocaine for the Purpose of Trafficking (71.2g) (Boother) — committal is conceded by Boother

• Count 117: Possession of MDMA for the Purpose of Trafficking (16 capsules and 0.5g powder) (Ramsey-Morris) — The Crown concedes it has not established Possession for the Purpose of Trafficking

• Count 120: Fail to Comply (drugs) (Ramsey-Morris)

• Count 121: Fail to Comply (drugs) (Ramsey-Morris) — committal is conceded by Ramsay-Morris

• Count 125: Unlawful Possession of a Firearm (revolver) while being Prohibited by a s.109 order (Boother)

• Count 126: Unlawful Possession of a Firearm (shotgun) while being Prohibited by a s. 109 order (Boother)

• Count 127: Fail to Comply (cell phone) (Boother) — committal conceded by Boother

• Count 128: Fail to Comply (drugs) (Boother) — committal conceded by Boother

• Count 129: Fail to Comply (firearms) (Boother)

6The evidence in this case proceeded in accordance with subsections 540(7) and (9) of the Criminal Code. For the purposes of the preliminary hearing, and except as noted below, Defence counsel waived proof of the drugs and firearms seized, and conceded the expertise of P.C. Gillis to testify about trafficking enterprises, drug terminology, and prices. All but Ramsay-Morris also waive proof of voice-identification with respect to the intercepted communications.

7The bulk of the prosecution case was tendered through one officer, P.C. Davies. He took the court through the investigation, including the surveillance, wiretaps, and searches and seizures. The subsection 540(7) evidence was provided to the court in a bound volume of material as well as electronically. The latter contains hyperlinks to the source reports, intercepted communications, photographs, and other details. The evidence is voluminous. Pursuant to subsection 540(9), several police officers who are the source of some of the evidence tendered through P.C. Davies, were called for cross-examination by Defence counsel.

8In its written submissions, the Crown summarized the aforementioned evidence. Defence counsel had little to say about that because, for the purposes of the preliminary hearing, much of it is not in dispute. The issues in most of the contested counts concern the conclusions that a jury could draw from that evidence and questions of law. Defence counsel do not accept the Crown's submissions with respect to those matters and provided me with oral and written submissions.

9I have listed the counts in chronological order but I will review the evidence in relation to the separate events in the investigation. My review will focus only on the matters in dispute. Before doing so, it will be helpful to set out my understanding of legal principles common to all defendants. Other questions of law, affecting individual accused will be discussed later in these reasons.

The Nature and Scope of a Preliminary Hearing

10A preliminary hearing serves an important, but limited, purpose. I do not decide if the defendants are guilty of the offences and, generally speaking, it is not my role to assess credibility or weigh the evidence. Its primary purpose is to determine whether there is sufficient evidence to justify committing the defendants to trial. A secondary purpose is to allow the defendants an opportunity to discover the Crown's case.

11In R v Arcuri 2001 SCC 54, [2001] 2 S.C.R. 828, the Supreme Court of Canada once again considered the duties to be performed by a judge presiding at a preliminary inquiry. The Chief Justice stated (paragraphs 21–22 and 29–30):

The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a defence motion for a directed verdict, namely, "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty": Shephard, supra, at p. 1080…. Under this test the preliminary inquiry judge must commit the accused to trial "in any case in which there is admissible evidence which could, if it were believed, result in a conviction"…. The test is the same whether the evidence is direct or circumstantial….

The question that arises in the case at bar is whether the preliminary inquiry judge's task differs where the defence tenders exculpatory evidence, as is its prerogative under s. 541. In my view, the task is essentially the same, in situations where the defence calls exculpatory evidence, whether it be direct or circumstantial. Where the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial, regardless of the existence of defence evidence, as by definition the only conclusion that needs to be reached is whether the evidence is true. However, where the Crown's evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence (i.e. including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty.

In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge's task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of "limited weighing" never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.

12Throughout these reasons, when I use phrases such as "some evidence", "sufficient evidence", "reasonable interpretation" or "supports the conclusion", I am referring to the "Shephard test" described above.

Parties of an Offence

13The Criminal Code provides:

21. (1) Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

Conspiracy

14The word "conspiracy" has its root in two Latin words that mean "to breathe together". A conspiracy is an agreement between two or more persons to commit an illegal act or to achieve something lawful by illegal means. The basic elements of conspiracy are (i) an intention to agree; (ii) the completion of the agreement; and (iii) a common unlawful object. The offence is complete upon the agreement being made. Acts in furtherance of the conspiracy need not be proven but it must be shown the parties intended to act upon the agreement. Nevertheless, acts in furtherance may provide circumstantial evidence of the agreement. See: United States of America v. Dynar (1997) 1997 CanLII 359 (SCC), 115 C.C.C. (3d) 481 (SCC).

15A conspiracy is a continuing offence that terminates when the unlawful object is achieved, abandoned, or frustrated. Provided there is a continuing overall, dominant plan, there may be changes in methods of operation and personnel with varying degrees of involvement, or in proposed victims, without bringing the conspiracy to an end. The important inquiry is not as to the acts done in furtherance of the agreement, but whether there was, in fact, a common agreement to which the acts are referable and to which the accused are privy. Moreover, it is not necessary for the Crown to prove that each member of the conspiracy knows the details of the common scheme as long as each one is aware of its general nature and adheres to it: R. v. Root, (2005) 2008 ONCA 869, 241 C.C.C. (3d) 125 (OCA) at 141 (para. 68).

16The law with respect to proof of a conspiracy applies to the prosecution of all offences where it is alleged that two or more people are engaged in a common design; it is not necessary that they be charged with conspiracy: R. v. Koufis (1941) 76 C.C.C. 76 161 (SCC).

17The classic statement about proof of a conspiracy is R. v. Carter (1982) 1982 CanLII 35 (SCC), 67 C.C.C. (2D) 568. In that case, the Supreme Court of Canada set out a three-stage process: At the first stage, the Crown must establish the existence of the conspiracy charged — irrespective of membership — beyond a reasonable doubt. At the second stage, the Crown must establish the probable membership in the conspiracy of each accused, on the basis of evidence directly admissible against them. At the third stage, the Crown may rely upon the co-conspirators' exception to the hearsay rule which permits the words and acts in furtherance of the conspiracy of each probable member to be used against all probable members in determining whether membership has been established beyond a reasonable doubt.

18It is possible that on stage one a trier of fact may be satisfied as to the identity of one or all conspirators, but this is not necessary. The question at this stage is whether the Crown has proven, beyond a reasonable doubt, that the conspiracy alleged existed. At this point the hearsay exception does not apply. R v Barrow (1987) 1987 CanLII 11 (SCC), 38 C.C.C. (3d) 193 (SCC).

19At the second stage, the trier of fact must determine whether there is evidence directly admissible against the accused that s/he is probably a member of the conspiracy. This analysis is not undertaken in isolation, divorced from the case as a whole. Accordingly, while the acts and declarations of other alleged conspirators is not evidence directly admissible against a particular accused, such evidence can be relied upon to provide the context against which his/her acts and declarations can be interpreted.

20The three stage process set out in Carter describes the procedure at trial. It does not apply to a preliminary hearing. This is inevitable given the nature and scope of the hearing. In R v Rojas [1997] O.J. No. 3756 (OCGD), it was held that the judicial officer at a preliminary hearing must consider two questions; is there some evidence of the conspiracy alleged and is there some evidence a particular accused is a member of it? If both questions are answered in the affirmative, the accused must be committed to stand trial. See also R v Duenas [1992] O.J. No. 4022 (OCJ). As such, if there are competing reasonable inferences, one of which supports committal for trial, the case must go to the ultimate trier of fact. It follows, therefore, that at a preliminary hearing, stage three does not arise. Nevertheless, as indicated, such evidence can provide important context. Indeed, to ignore it can result in an artificial construct that hinders the search for truth.

21Counsel for Ramsay-Morris cautions that this contextual analysis can blur the distinction between the three steps in Carter. I agree that this danger is real. Accordingly, it is prudent to keep in mind what Martin J.A. said many years ago in Baron and Wertman (1976) 1976 CanLII 775 (ON CA), 31 C.C.C. (2D) 525 (OCA):

The governing rule of evidence is not in doubt, although its application in a particular case often raises questions of great difficulty. The rule is based upon a principle of agency. If A and B have agreed to achieve a common unlawful purpose, then by their agreement each has made the other his agent to achieve that purpose, with the result that the acts and declarations of A in furtherance of the common design are not only A's acts and declarations but, in law, are also B's acts and declarations ... It only comes into play, however, where there is evidence fit to be considered by the jury that the conspiracy between A and B exists. It is clear that where the fact in issue to be proved is whether a conspiracy exists between A and B, A's acts, or declarations implicating B cannot be used to prove that B was a party to the conspiracy, in the absence of some other evidence admissible against B to bring him within the conspiracy.

Kyle Boother

22Boother contests his committal for trial for several counts on the basis that the Crown has called no evidence to put him in possession of the contraband. The Code defines possession as follows:

4 (3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

23It is well established that personal possession requires both knowledge and control: R v Beaver 1957 CanLII 14 (SCC), [1957] S.C.R. 531 (SCC). Constructive possession is complete where a person has knowledge of the item and knowingly keeps the object in any place for his benefit or that of another person: R v Morelli 2010 SCC 8, [2010] 1 S.C.R. 253 (SCC). However, for subsection (b) to apply, there must be some measure of control on the part of the person or he must otherwise be a party to the offence of the person actually in possession pursuant to section 21: R v Terrence 1983 CanLII 51 (SCC), [1983] 1 S.C.R. 357 (SCC).

Counts 2 to 11 and 125 – Re Contraband Found at 177 Nonquon Drive

24On February 4, 2014, a general warrant was executed at 177 Nonquon Road, Unit 312. Within a bedroom, officers located a safe in the closet and documents in the name of Zachary Joyce-Vautour. Located in the safe and within the unit was 104g of cocaine, 63g of MDMA, 535g marijuana, a .32 cal Smith and Wesson revolver, 5 rounds of ammunition and $6,000. The revolver was found in the safe along with the 5 rounds of ammunition.

25The Crown claims this unit was used as a stash house by Boother and Joyce-Vautour. This submission is based on the following surveillance and other evidence:

• On December 31, 2014, Boother is observed attending 177 Nonquon Road. He picks up 2 males at this address. One of the males returns to 177 Nonquon Road with Boother. They are observed bringing a television into the building. (Chambers/Campbell)

• On January 3, 2014, Boother is observed meeting with several people. Later in the evening he is observed at 177 Nonquon Road entering onto the third floor. (Corner/Campbell/Wesseling)

• On January 7, 2014, Boother is observed with Joyce-Vautour. Both are observed engaging in what could be interpreted to be drug transactions with various individuals. Boother and Joyce-Vautour are observed meeting at 177 Nonquon Road and attending unit 312. (Campbell/Graham/Smith/MacKintosh/Davies/Wesseling)

• On January 8, 2014, Boother was observed attending 177 Nonquon Road with two other males. Boother later left 177 Nonquon Road. Boother was observed returning to 177 Nonquon Road. (MacKintosh/Campbell/Smith/Davies/Wesseling)

• On 24 January 2014, Mr. Boother attends at 177 Nonquon and sits in his car, from 17:21 through 17:31 until which time Mr. Joyce-Vautour attends in his vehicle, and leads Mr. Boother into the address. They stayed inside for roughly twenty-five minutes. (Campbell/Corner/Mackintosh)

• On January 27, 2014, Boother was observed going to 177 Nonquon Road. Boother and Joyce-Vautour were observed leaving 177 Nonquon Road later in the evening and they were observed meeting several people before returning to 177 Nonquon Road. (Corner/Campbell/Davies/Connolly)

• On January 29, 2014, Joyce-Vautour's vehicle was observed parked in the front visitor lot of 177 Nonquon Drive. Joyce-Vautour was observed exiting the front door of 177 Nonquon Drive. (Heron/Campbell)

• On January 30, 2014, Boother and Joyce-Vautour were observed leaving 177 Nonquon Road together and they were observed engaged in what a jury could conclude were drug related transactions. They both returned to 177 Nonquon Road, unit 312. Several individuals were observed attending the apartment for short periods of time. (Campbell/MacKintosh/Davies/Connolly)

• There is a rental agreement for 177 Nonquon Road, Apt. 312, in the name of Zackary Joyce-Vautour with the date of birth of October 15, 1993. The lease indicates that he is renting the residence from January 1, 2014 to December 31, 2014

• A Ministry of Transportation database check on Joyce-Vautour shows that his address was updated on January 7, 2014 to 177 Nonquon Road, Apartment 312, Oshawa.

• On February 4, 2014, the day of the covert entry, Joyce-Vautour was observed entering 177 Nonquon Road. In the early hours of February 5, 2014, an Analysis Report indicated that Boother's Altima BTAT 498 arrived at 177 Nonquon Road at 5:50am. Based on the analysis report, at 5:54am Boother's telephone number (905-447-1938) was hitting a cell tower at 177 Nonquon Road. (Connolly/Gawne/Campbell/MacKintosh)

• The revolver found in the safe is a "firearm" as defined by s.2 of the Code and a "prohibited firearm" as defined in s.84 Code. Boother and Joyce-Vautour did not have firearm licences. Joyce-Vautour did not have valid registration for the revolver which was seized at 177 Nonquon Road, Apt 312. At the time, Boother was bound by a s.109 Order prohibiting him from possessing any firearm for 10 years. (Exhibit 8).

26I am of the view that a reasonable jury, properly instructed, could not find that Boother possessed the contraband found at 177 Nonquon, unit 312. In coming to this conclusion I note that Joyce-Vautour is the registered tenant for the property and is the only one seen in possession of, or using, a key to the unit. Boother is never seen entering the unit without Joyce-Vautour letting him in. The aforementioned evidence suggests that, as of February 2014, Boother and Joyce-Vautour are associated and could be involved in the drug trade. Months later, the wiretap evidence presents compelling evidence that Boother and Joyce-Vautour conspired to traffic cocaine. However, this evidence is not sufficiently proximate in time and place to link Boother to Joyce-Vautour's culpability for the items found on February 4. The claim that the apartment unit in question is a stash for the joint benefit of the two men is speculative; there is no reasonable basis to conclude that Boother had control of the contraband or is otherwise a party to any related offences that may have been committed by Joyce-Vautour. Boother is discharged with respect to counts 2 to 11 and 125.

Count 17 & 23 - Possession of Cocaine for the Purpose of Trafficking

27Boother challenges committal for these two counts on the basis that the Crown has not demonstrated that the substance is cocaine or that the amount involved demonstrates that it is for the purpose of trafficking. I reject this submission.

28With respect to count 17, I note the following evidence:

On June 16, 2014, McGown texts Boother "got 2 if u want em" and Boother replies "ya can we go lower tho". McGown texts "I wish I could what did I charge u for the last 2" (session 4). Boother replies "15 a pop". McGown replies "ya man I gotta stay at that". Boother replies "kk u ready". McGown replies "yaw her u at". Boother replies "Corral". McGown texts "Sail?" (Session 1), McGown texts "here and in a bit of a rush" (Sessions 2–9 & 15).

Later that day, Boother arrives at the Sail parking lot at 665 Laval Drive in Oshawa and enters McGown's motor vehicle. This meeting is videotaped by police. (Hudson/Campbell)

An audio probe inside McGown's car captured the following conversation: McGown says "no listen. I picked up two of the different things and the prices weren't even like noticeably different. Different and the quality wasn't there." McGown says "the man…half a brick…show me the rate and then he showed me the rate and it's fucked up." Boother says "no I re-pop this shit and crumble it in my hand so that it's still has that….shines all through it, it looks sick. It pretty much looks the same as how you gave it to me." McGown says…people that I'm….charging like 17…there's nothing around." Boother says people say 18 to 20 right now for the actual rock and I would pay that. I can't find anybody." McGown says "I'll give you have a zip for a crazy price." Boother says "give me a shout if anything else pops up, I'll take anything you can get your hands on." (Session 11)

29With respect to count 23, I note the following evidence:

On June 20, 2014, McGown texts Boother "got 2 on deck." Boother responds "can u go 14". McGown replies "maybe on the ones after these". Boother calls McGown and says that he's on his way to meet McGown. (Sessions 69, 70, 72 & 83)

Later that day, Boother is observed in the parking lot of Sail in Oshawa. He entered the passenger seat of McGown's vehicle and exited McGown's vehicle two minutes later. This meeting was videotaped (Smith)

30The expert evidence supports the conclusion that one ounce of cocaine costs between $1200 and $1600. This is the context for McGown's statement that he has "2 for 15 a pop". The expert witness also testified that a "zip", "brick", and "rock" refer to cocaine. This gives meaning to the discussion between the parties about "17" and "18"; they speak of the fact that there's nothing around so McGown is charging 17 and Boother says that people are charging 18 to 20 right now and he would pay that. The expert evidence is that these are consistent with the prices for an ounce of cocaine.

31A reasonable jury properly instructed could conclude, given the text messages, audio probe, and clandestine meetings that on June 16 and 23, the parties talking about the market for cocaine and that Boother purchased two ounces of cocaine on each occasion. This amount is consistent with the intent to traffic, a finding that is bolstered by the conversation recorded in the motor vehicle.

Count 44 – Trafficking Cocaine

32This count relates the events of July 7–8, 2014. It is a substantive act in furtherance of the conspiracy alleged against Boother and Joyce-Vautour. As Boother has conceded that count, there should also be a committal for trial on this count. In any event, this order is appropriate, as will be explained later in these reasons.

Counts 46 through Count 50 - Possession of drugs for the purpose of trafficking and proceeds of crime

33These counts relate to the events on July 10, 2014 when police stopped a taxi and seized 17oz of cocaine, five grams of MDMA, three ounces of marihuana, 19 Oxycodone pills, and $1,050.00. Boother argues that the evidence does not demonstrate his possession (specifically, 'control'). In addition, while he concedes that the quantity of cocaine and the related intercepts establish possession of that drug for the purpose of trafficking, he argues that this cannot be said with respect to the other drugs seized. The latter point is conceded by the Crown. Boother acknowledges that if his argument succeeds, he could nevertheless be committed to stand trial for attempt or conspiracy to possess.

34The relevant evidence – also applicable to other counts to be considered, is as follows:

On July 9, 2014, Boother says "do 4 and a baby, into a 9, and then do the other one, just a half a zone onto each zone." Joyce-Vautour says "you're going to front that off as raw?" Boother says "yeah". Joyce-Vautour says "just 2, listen". Boother asks "you're taking some?" Joyce-Vautour says "no, no, no, the other day, I got 2 for 3…Boother says "I know, you made 3 bands in a day…I want a cut, did you take my Benzo?" Joyce-Vautour says "I already had enough." Boother says "you took my Benzo." Joyce-Vautour explains that "I got a full block for 17, I got one for 13, I turned it into 4, I sold a half ounce for 6, and I gave BIZ a zip for 6, I paid $100 for 2 and a half ounces." Boother says "I'm going to hang up on you now, just do what I said to do". Boother says "you know you have to piece me out on Biz though, every time he sees you, shoot me 50 bucks, you're taking my workers out there, hold on, we'll do it better than that, go to Public Mobile tomorrow, take my number back and get a phone on that, and then just everybody that links it, just switch them over to your phone, and then you'll see the Weed Man's gonna call and then just get me the Weed Man, like to get my life back in order, I need that nigga back in my life." Boother says "everybody else that hollers for the torque and shit, you can just give me a piece. " Joyce-Vautour says "but yeah I'm going in 3 weeks." Boother says "start giving Mitch everything from now, you have to start making him do everything from now, so he gets used to it. I don't even know if I could trust Mitch to do shit for me." Boother says "you're sending everything up north to me cuz I want that shit up here so if you hold it down there, I can someone to fly it up here." Joyce-Vautour says "good luck, you're gonna have the program in Bancroft, no one's going up to Bancroft, who's going up to Bancroft for a half ball?" Boother says "are you stupid, you can have it in that sense but it'd be coming through me though. I want everything else up here." Joyce-Vautour says "yeah but Mitch isn't gonna go to Bancroft 3 times a week." (Session 5673)

Boother texts Joyce-Vautour and says "K so do 6 to 12 and 3 to a 4 and a baby and link me ps #". Joyce-Vautour says "good thing I made 9 last night lol all thst woulda taken me all day." Joyce-Vautour texts Mahmood and says "are you still up to that 12 hours for $200? Remember u were telling me and Mitch…to Bancroft." (Sessions 5825, 5856, 5860 and 5865)

Joyce-Vautour calls Mahmood. Mahmood says "he can do it at 9 o'clock tonight, says he can come to Joyce-Vautour at 10 o'clock for 125 each way, would pick Joyce-Vautour up tomorrow." Joyce-Vautour says "he's going to call him back and see if that's ok with him." Joyce-Vautour calls Boother and says "Yash says he can bring him up after 10 o'clock, will be there by 12." Ramsey-Morris calls Joyce-Vautour and says "he was making sure Joyce-Vautour. got back good yesterday." Joyce-Vautour says that he is going "out those" ways at 10." (Session 5887, 144, and 5927)

The expert witness testified that Benzocaine is a common cutting agent used to dilute cocaine to add volume, thereby increasing profits. A "half ball" is an amount of cocaine equal to 1.7g

On July 9, 2014, Joyce-Vautour and Yassir Mahmood were followed to Bancroft. (Chambers/Ashworth/Wesseling/Smith/Davies/MacKintosh)

On July 10, the cab driven by Mahmood, with Joyce-Vautour as a passenger, pulled into a mock RIDE set up the OPP. Joyce-Vautour and Mahmood were both arrested and transported to Bancroft station. During a search of the vehicle officers seized the aforementioned drugs and cash. Joyce-Vautour and Mahmood were released from the police station and travelled back to Durham.

Later that day, the wiretap evidence shows Boother, Mitchell Chamberlain and Joyce-Vautour discussing the arrests. Boother calls Chamberlain. Chamberlain says "I don't understand, there's no reason why they can't answer their phones." Boother says "I know, I think you guys should get out of the house and move that thing from in the house too, just in case." Chamberlain says "alright, alright." Boother says "well, you don't really know what's happening, right? If that were the case, they would be going back to his crib to fly his door 100 percent." Chamberlain says "okay, okay, I'm just gonna gather that stuff up, what do you want, the bush or what?" Boother says "I don't know, just put it wherever dog. I'm not out there, just do whatever you feel to do, keep it safe, I don't know." (Session 294)

Boother calls Chamberlain and says "yo, his phone is off and Yash's phone on." Chamberlain says "yeah, I know, I just tried to call." Boother says "so they could have arrested JV and let Yash go, and Yash isn't answering his phone." Chamberlain says "it's not adding up at all, one of them should answer their phones, but how would they be stopped, just Yash being an idiot and driving crazy, you know? I'm gonna kill him. I already dashed the shit." Boother asks "where you at?" Chamberlain says "I'm at the crib". Boother says "my whole life is down the drain, and JV's fucked right now." Chamberlain asks "…Jay took more than just piff, yeah?" Boother says "he was pretty much bringing half a brick up here, down the drain, he's fucked right now. Who knows what's happening with him if that's the case." Chamberlain asks "what should I do? Should I take all this stuff to my mom's crib?" Boother says "yeah, I think so. I don't know, bring the press with you, if that's possible too." Boother says "…try and do something…I have to make my money back, you know." (Session 302)

Brown calls Boother and Boother tells him "I just lost everything bro." Boother says "he was running a thing up here for me. I dropped all my paper on something to bring up there and he got stopped by a ride program." Brown says "was he in a cab?" Boother says "yeah he was taking my cab up north." Boother says "…they told them get out of the car, you're under arrest. There was like 17 things in the car, plus piff and whatever else, money and shit…" Boother says "…my shit's all seized, everything I owned was seized, except for my little piece of change that just got took." Boother calls Brown and tells him that "I just lost everything bro…JV...was running a ting up here for me. I dropped all my paper on something to bring up here and he got stopped by a ride program." "There was like 17 things in the car, plus piff and whatever else…" Boother says "there was half a bird (p. 86)" Boother says "my shit's all seized, everything I owned was seized (Sessions 328, 329, and 330)

Joyce-Vautour calls Boother and he explains what happened when he was stopped and tells Boother that "I'll do something. I'll get it back for you man." Boother says "how are you going to get it back for me though?" Joyce-Vautour tells Boother what he had with him when he was stopped "I had everything, I had 2 ounces of weed, I had percs, I had molly, I had work…" and Boother says "I know what you had man". Joyce-Vautour says "all I was trying to do was do you a favour and then this comes on me like this, I'll get it back to you, don't worry, I promise you I'll get it back to you." Joyce-Vautour tells Boother "there's 17 ounces there, I would have been looking at 5 years, I'm not joking. I just seen my life flash in my eyes". Joyce-Vautour says "I can be doing 5 to 10, that's half a brick, bro, that's not a game, that's no joke. (Session 6218)

Boother asks Joyce-Vautour "have you talked to Mitch yet?" Boother tells Joyce-Vautour "I already talked to him, I told him to, he cleared the house, everything's gone from your house, so don't worry about that…I even got Mitch to clear out the press." Joyce-Vautour says "where's the press?" Boother says "it's at his Duke's house for now." (Session 6218)

Joyce-Vautour calls Chamberlain and says "everything is gone. I just got like half a brick bro." Chamberlain says "I have everything, I'm at my mom's". Joyce-Vautour tells Chamberlain "now I owe Kyle [Boother] like 14 racks." Chamberlain says "I know he called me…I took everything." (Session 6220)

Chamberlain calls Joyce-Vautour and Joyce-Vautour tells him that Boother "just asked me to go buy more drugs and cut them and bring them up to, I'm like no, I'm sleeping dog, are you stupid?" Chamberlain says "yeah, it's not even smart…he's not thinking." Joyce-Vautour asks Chamberlain to "bring the press back. I'm not going to your house every time I need to use it." Chamberlain says "I'll bring it back but I'm not bringing the other thing back." (Session 6313)

The expert witness testified that "work" is a term used to describe drugs for sale, "half a brick" refers to half a kilogram of cocaine, and a "rack" is $1000.00.

35The evidence supports the conclusion that Joyce-Vautour was in the act of delivering a large quantity of cocaine to Boother when stopped by police near Bancroft. The intercepted communications also show that Joyce-Vautour did so under direction by Boother. On this basis, a reasonable jury, properly instructed could find that Boother was in joint and constructive possession of the cocaine. Having regard to the amount of cocaine involved as well as the wiretap and expert evidence, the jury could convict him of possession for the purpose of trafficking. This evidence suggests Joyce-Vautour was also delivering the $1050.00 in cash to Boother. However, there is insufficient evidence to show that Boother had knowledge of the other drugs in the actual possession of Joyce-Vautour. Accordingly, he is discharged with respect to those counts.

Counts 94 to 98, 126 and 128 – Re Contraband Found at Simcoe Street

36These counts relate to items seized by police pursuant to a search warrant at 446 Simcoe Street, unit 3, in Oshawa, on July 20, 2014. Officers seized the following items: A 410 shotgun in the living room, behind the couch. The gun was loaded and the safety was off. Shotgun ammunition was located in a back pack in the main bedroom. A bullet proof vest, 23 grams of cocaine, a scale, 64 grams of cannabis and a black baretta replica air pistol were seized in plain view from the living room.

37The shotgun meets definition of "firearm" in the Code. (Exhibit 7). As noted earlier, Boother and Joyce-Vautour did not have firearm licences and the former was bound by a section s.109 order prohibiting him from possessing any firearm for 10 years (Exhibit 8).

38A lease with Joyce-Vautour's name was located in the apartment at the time of the execution of the search warrant. He concedes committal for most of the charges. Boother challenges such an order on the basis that the Crown has failed to demonstrate his possession of the contraband. I reject this submission.

39Boother attended 446 Simcoe Street on several occasions in June 2014. The source of this information comes from surveillance officers and a tracking device placed in Boother's car and monitored by police. (Campbell/MacKintosh/Davies). Moreover, the evidence I have already reviewed with respect to counts 46 to 50 (the seizure of drugs in the taxi near Bancroft) supports the conclusion that Boother and Joyce-Vautour were engaged in a joint venture to traffic cocaine.

40The wiretaps related to the Bancroft event suggest that Boother is the dominant player in this conspiracy; that is, that Boother, under house arrest, directed Joyce-Vautour to obtain cocaine, "cut it", and transport it to him. A realistic interpretation of the post-arrest intercepted conversation between Boother and Chamberlain is that the former told the latter to move all the drugs, including the "the thing" and the cocaine press. In addition, he told Chamberlain that his whole life is down the drain as all his cocaine had been seized from Joyce-Vautour on the latter's arrest. The Crown alleges that Chamberlain did as he was told and that the "the thing" Boother is talking about is the shotgun found 10 days later at the search of Joyce-Vautour's residence. I accept that this is one rational interpretation.

41I find that a reasonable jury, properly instructed could find that Boother was in joint and constructive possession of all the contraband found at 446 Simcoe, unit 3. If follows, that he must also be committed to stand trial for possession of a firearm while prohibited and failure to comply with a recognizance by possession of weapons. However, as will be explained below, there is no evidence that the firearm is a "prohibited" one. Moreover, there is nothing to show that either man knew that the firearm was obtained by the commission of an offence or that Boother was a party to the careless storage of it. Accordingly he is discharged with respect to these counts. Lastly, the evidence does not justify a finding that the 64 grams of marihuana was possessed for the purpose of trafficking. In that regard, Boother is ordered to stand trial for the charge of possession.

Zachary Joyce-Vautour

Count 43 – Conspiracy to Traffic Cocaine

42Boother concedes that there is sufficient evidence to justify his committal for trial on the charge that, along with Joyce-Vautour and Chamberlain, he conspired to traffic cocaine between July 7–29, 2014. Joyce-Vautour contests committal on the basis that the Shephard test has not been met. I reject this submission. The relevant evidence with respect to the conspiracy to traffic cocaine and the members of it has been reviewed above with respect to related counts involving Boother. I highlight the following intercepted communications that especially implicate Joyce-Vautour:

Boother calls Joyce-Vautour and tells him that he needs him to meet Ramsey-Morris to buy 9oz of cocaine and to bring it up to Bancroft. Boother instructs Joyce-Vautour to cut the cocaine ("put a Cuban on every one. Two into a Cuban": as per the expert report, a "Cuban" means 7grams) — Boother tells Joyce-Vautour that "Juve (Ramsey-Morris) is coming to you and then you are coming to me." Joyce-Vautour says that "he is making a half brick". (Session 5213)

Boother tells Joyce-Vautour to "holla at Juve". Boother then texts Juve's number to Joyce-Vautour. The latter calls Boother and tells him that "I'll talk to Juvie and maybe I'll make that today, and I'll come up in the morning." (Sessions 5262 and 5483)

Joyce-Vautour calls Ramsey-Morris and asks "where do you want to meet?" Ramsey-Morris tells Joyce-Vautour to meet him in Ajax at the high school parking lot. (Session 5517)

On July 8, 2014: Joyce Vautour calls Boother to confirm that he met with Ramsey-Morris and they discuss cutting the cocaine. The next day, Boother and Joyce-Vautour discuss the cocaine, how to cut it and how to bring it up to Boother in Bancroft. They talk about how to cut it with benzocaine. Boother tells Joyce-Vautour "I want a cut, did you take my benzo?" Joyce-Vautour replies "I already had enough" Boother tells Joyce-Vautour "I'm going to hang up on you right now, just do what I said to do." Sessions 5551, 5673

On July 10, after the arrest in Bancroft, Joyce-Vautour calls Chamberlain and says "everything is gone. I just got like half a brick bro." Chamberlain says "I have everything, I'm at my mom's". Joyce-Vautour tells Chamberlain "now I owe Kyle like 14 racks." Chamberlain says "I know he called me…I took everything." (Session 6220)

On July 10, 2014, Chamberlain calls Joyce-Vautour and asks if he's safe and that Boother is flipping out. Joyce-Vautour says "he wants me to go buy more drugs and cut them and bring them up, I'm like no, I'm sleeping dog, are you stupid." Chamberlain says "he's not thinking." Joyce-Vautour tells Chamberlain "just bring the press back. I'm not going to your house every time I need to use it." Chamberlain says "I'll bring that back, but I'm not bringing the other thing back." (Session 6313)

Count 5 - Careless storage of firearm

43Joyce-Vautour argues that since the firearm found during the covert on February 4, 2014 was located in a locked safe, there is no evidence to justify an order to stand trial on a charge of careless storage of the firearm. I agree and he is discharged accordingly.

Counts 45 and 46 - Possession for the purpose of trafficking in cocaine

44Joyce-Valuator submits that the cocaine referred to in these counts is the same and there should only an order to stand trial for one of the counts. Count 45 refers to nine ounces of cocaine allegedly obtained from Ramsey-Morris. The evidence shows that cocaine was later "cut" by Joyce-Vatour to produce 17 ounces. This was seized by police near Bancroft. The larger diluted amount of cocaine is reflected in count 46. I agree that there should be an order to stand trial for one count only. The better charge, given the evidence, is count 46.

Counts 55 and 70 – Possession for the purpose of trafficking in cocaine

45Joyce-Vatour contests committal for trial for counts 55 and 70 on the basis that the Crown has failed to prove the nature of the substance. The Crown alleges that these counts relate to purchases of cocaine on July 14 and 23, by Joyce-Vautour, from McGown, for resale. The amount involved is two ounces on each occasion. I accept that this is a reasonable interpretation and that the trier of fact could convict accordingly.

46The relevant evidence is as follows:

On July 14, 2014, McGown calls Joyce-Vautour and tells him that "he was just putting an order in, did he want that other 2 or more than that?" Joyce-Vautour says "that he wanted 4 if he had them." McGown says "let me see if I can get it, my homey's gonna come by in a bit, so I'll give you a shout and we'll linkup, but you're good to go for tonight?" Joyce-Vautour says "yeah". (Session 348)

McGown calls Joyce-Vautour and says "he should probably be good for that, he was waiting on his boy, he was coming from down town and waiting for rush hour so he would probably come see him around 8–8:30". Joyce-Vautour says "sounds good". Joyce-Vautour texts McGown and says "what time he was thinking and is it before 9?" McGown texts Joyce-Vautour and says "ya soon". "Half an hour ish". McGown calls Joyce-Vautour and tells him that "he will pick him up behind the bar in 10 minutes." (session 362, p.109) McGown calls Joyce-Vautour and says that "he is here." Joyce-Vautour says that "he'll be right out". (Sessions 354, 356, 358, 359, 362 and 364)

On July 14, 2014, McGown met with Joyce-Vautour at 446 Simcoe Street, Oshawa in McGown's car. (Corner/Davies).

A probe in McGown's vehicle captured their conversation: Joyce Vautour tells McGown that he can tell he's doing good, buying a new truck during the drought. McGown tells Joyce-Vautour that he used to get the big bricks but he is lucky if he can get 9 now. He tried so hard to get his hands on 2 and ½ bricks…

The expert evidence is that "a brick" refers to a kilogram of cocaine, 9 refers to 9 ounces of cocaine

On July 23, 2014, McGown sends a text message to Joyce-Vautour "Whatz up". Joyce-Vautour replies "just chillin u around for 2?". McGown says "Hopefully soon ill call u". Joyce-Vautour says "whats up im in courtice but goin home soon." (Sessions 419, 421, 422 and 455)

McGown calls Joyce-Vautour and says "when did you wanna link up?" Joyce-Vautour says "whenever you're available today" McGown says "yea, yea. I'm good to go, good to go. I'll give you a call in like half an hour and I'll come see you." Joyce-Vautour says "alright man, sounds good." McGown says "alrite buddy. Oh just two right?" Joyce-Vautour says "yeah" McGown says "alrite buddy" Joyce-Vautour says "alrite man". (Session 452)

McGown calls Joyce-Vautour and says "he's here". Joyce-Vautour says to give him a few minutes (Session 455)

Count 66 – Possession of marihuana for the purpose of trafficking

47The evidence with respect to this charge is contained in a series of wiretaps, on July 24, 2014 between Joyce-Vautour, McGown and Saltarelli. The Crown alleges that the intercepted communications show that McGown and Saltarelli agreed to supply Joyce-Vautour with two pounds of marihuana. The next day Joyce-Vautour and McGown are seen to meet. The Defence contests committal for trial on the basis that the product being discussed has not been proven. I need not review this evidence in any detail. It will suffice to point out that the parties are obviously engaged in coded discussions about products, weights, and prices. The expert evidence interpreting the conversations constitutes sufficient evidence upon which a trier of fact could conclude that the product is two pounds of marihuana and that this was purchased for purpose of trafficking.

Re Contraband found at Simcoe Street

48The evidence with respect to the search warrant at 446 Simcoe Street, unit 3 has already been reviewed. Joyce-Vautour concedes he must be committed to stand trial for the offences with respect to the drugs found, careless storage of a firearm, and unauthorized possession of a firearm. He contests committal for trial on charges of possession of a prohibited firearm and possession of a firearm obtained by the commission of an indictable offence (counts 97 and 98).

49I agree with the Defence position. The Firearm Report tendered as evidence establishes that the shotgun is classified as a non-restricted firearm. It does not meet the definition of prohibited firearm in section 95, or as defined in section 84. In addition, there is no evidence that the shotgun was obtained by the commission of an offence.

Dane Ramsey-Morris

50The charges against Ramsey-Morris involve two discrete events: It is alleged that between July 7 and 8, 2014 he supplied Joyce-Vautour with nine ounces of cocaine to be given to Boother (count 44). He contests this charge. It is agreed that if he is committed to stand trial, a similar order must also be made with respect to failure to comply (count 120). Ramsey Morris is also charged with possession of 16 capsules of MDMA for the purpose of trafficking (count 117). On consent, Ramsey-Morris is committed to stand trial on possession only and, therefore, failure to comply (count 121).

51The case against Ramsay-Morris hinges on the wiretap evidence. His counsel argues that the Crown has failed to prove that he is the person speaking. In any event, it is also submitted that no jury properly instructed could convict him of the charges. In this regard, Defence counsel claims there is insufficient evidence to show that he conspired with Boother and Joyce-Vautour to traffic in cocaine or otherwise a party to the offences in which they are implicated. I will deal first with the law relating to voice identification.

52Generally speaking, opinion evidence is admissible if given by a properly qualified expert about a matter that is not within the knowledge of laypersons. However, in some cases, lay opinion evidence may also be received. Voice identification may be proven by a non-expert witness, including a police officer, who can demonstrate familiarity with the voice in question such that s/he is in a better position than the trier of fact to identify the voice: R v. German (1947), 1947 CanLII 76 (ON CA), 89 C.C.C. 90. R v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393; R. v. Rowbotham, 1988 CanLII 147 (ON CA), [1988] O.J. No. 271 (OCA); R. v. Williams (1995) 1995 CanLII 695 (ON CA), O.J. No. 1012 (OCA).

53Defence counsel submits that the lay opinion evidence about voice identification given by P.C. Naccarato is inadmissible and that a voir dire should have been held to determine this issue. Reliance is placed on R v Leaney, supra and R v Berhe 2012 ONCA 716, 113 O.R. (3d) 137 (OCA). In Berhe, it was held that non-expert recognition evidence based on a photograph or videotape is admissible if the witness has a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator. In that case, the trial judge admitted such evidence without a voir dire to determine the issue. The Court of Appeal noted that it was not clear that, had a voir dire been held and the judge learned that the recognition evidence was based on a single dated interaction, the witness' recognition evidence would inevitably have been admitted. Accordingly, a new trial was ordered.

54In R v Parsons (1977), 1977 CanLII 55 (ON CA), 17 O.R. (2d) 465 (OCA), it was held that a voir dire is not a necessary precondition to the admissibility of lay opinion evidence about voice identification. In Williams, supra the Court of Appeal held that there are no mandatory factors which must be addressed before evidence of voice identification can be considered by the trier of fact. This does not mean that any witness can give such an opinion; the case law makes it clear that such a person must be in a better position than the trier of fact to identify the voice.

55In the present case, the authorization to intercept private communications was granted on June 2, 2014. An expansion order was granted 11 days later. PC Naccarato described his role in implementing the wiretap authorization and the software program that records the intercepted communications, with date, time, and place. Civilian monitors summarize the wiretaps and P.C. Naccarato listened to those he considered important, having regard to other evidence being collected by investigators. He testified he became familiar with, and identified, four voices among the 19,000 wiretaps he reviewed.

56P.C. Naccarato testified that Ramsey-Morris was intercepted 76 times. He reviewed 46 of those intercepted private communications and compared them to a videotaped interview between the defendant and P.C. Corner. P.C. Naccarato testified that he recognized the voice in question on each of the 46 wiretaps to be the same and that all matched the voice of Ramsey-Morris in the interview.

57The officer conceded he has never spoken to Ramsey-Morris and that his voice identification is also dependent on the link to the surveillance evidence at the Dennis O'Connor schoolyard as well as the references to "Juve" in the wiretaps themselves. P.C. Davies testified that the attribution of Juve as the nickname for Ramsey-Morris comes from investigators in a separate, earlier, drug investigation that targeted the defendant and others (he was acquitted of all charges arising from that investigation). P.C. Davies could not recall the details of his conversation with the previous investigative team.

58The following intercepted communications and surveillance reports are relevant to the voice identification of Ramsey-Morris:

On June 5 at 7:43 PM, Boother received an incoming call from a man using cell number 647-655-4881. They agreed to meet in half hour. At 8:13 PM, a surveillance team, following Boother, observed him to meet with Ramsey-Morris. This meeting was videotaped. P.C. Naccarato compared a still photograph from that video with a police "mugshot" of Ramsey-Morris and found them to be the same person. Police investigated cell number 647-655-4881 and found that this phone was assigned to Public Mobile Inc. with no known subscriber name attached.

On July 7 at 2:26 PM, Boother informed Joyce-Vautour that "juve is coming to you". In subsequent telephone calls Boother revealed Juve's cell number. Joyce-Vautour confirmed he would speak to Juve. This cell number — 647-655-4881— is the one previously associated with Ramsey-Morris. Joyce-Vautour contacted a man using this number on July 7 and July 8.

On July 8, communications between Boother and Joyce-Vautour are intercepted several times. They contain references to "Juve" and Boother directs Joyce-Vautour to a meeting. The latter eventually confirms he is "in the school parking lot". At this time, he is observed to arrive at Dennis O'Connor School in a taxi. P.C. Wesseling, part of the surveillance team, testified he saw Ramsey-Morris enter that cab.

59Defence counsel submits that P.C. Naccarato's voice identification is driven – and tainted - by the surveillance evidence. The latter is grounded in the evidence of P.C. Wesseling. If his observations are not valid, that undermines the voice identification. Counsel adds that the "Juve evidence" is inadmissible hearsay because it is not credible and trustworthy.

60P.C. Naccarato is not a voice expert. He generally described the basis for his opinion about the voice in question. The officer's testimony is deserving of some weight for the trier of fact to consider. See R v Pinch 2011 ONSC 5484 at para 86. He compared 46 intercepted conversations with a post arrest statement. This voice comparison is also linked to surveillance evidence and a nickname associated with Ramsey-Morris. The linkage of an intercepted communication with surveillance evidence is a recognized means to establish the identity of the speaker; R. v. Rumbaut, [1998] N.B.J. No. 381. Moreover, I accept that there is some evidence from which the trier of fact could find that that Ramsey-Morris is Juve. The conclusory statement by P.C. Davies to this effect is bolstered by the wiretaps themselves and surveillance evidence. Taken together, this constitutes sufficient evidence upon which a reasonable jury, properly instructed, could conclude that it is Ramsey-Morris speaking on the wiretaps in question.

61Defence counsel submits that there is nothing in the conversations and actions attributed to Ramsey-Morris to show that he supplied cocaine to Joyce-Vautour, for Boother. Counsel concedes that there is some evidence of a conspiracy between Boother and Joyce-Vautour but nothing to show that "Juve is the back end" so as to make Ramsey-Morris a member of the conspiracy. In this regard, it is pointed out that Ramsey-Morris does not talk about drugs and his meeting in the schoolyard is meaningless. I do not accept these submissions. The expert evidence in this case supports the reasonable inference that the language used by the parties is coded drug talk, with particular reference to nine ounces of cocaine. The meeting in the schoolyard should be seen against that background and, thereby, becomes sinister.

62My conclusion that there is a reasonable basis for the voice identification means Ramsey-Morris must be committed to stand trial with respect to count 44. There is compelling evidence that Boother and Joyce-Vautour conspired to distribute cocaine and 17 ounces of this drug was seized near Bancroft on July 10. The cocaine in question had been "cut" by Joyce-Vautour so as to increase the amount from the nine ounces he had originally received. The intercepted communications from July 7 to 8 and the clandestine meeting between Joyce-Vautour and Ramsey-Morris is sufficient evidence upon which a reasonable jury, properly instructed, could conclude that Ramsey-Morris was the source of the nine ounces cocaine. Those wiretaps also support the conclusion that Ramsay-Morris provided the cocaine to Joyce-Vautour at the direction of Boother. This evidence, including the related expert testimony interpreting the intercepted conversations, has been reviewed with respect to the co-defendants. I find the following events to be especially relevant with respect to Ramsay-Morris:

Boother confirms that Joyce-Vautour is coming the next day and advises that Juve is supposed to come and check him. Boother tells Joyce-Vautour how to "turn the ones into two". When the latter asks "an extra zip on the nine", Boother responds, "no, no, no, throw an extra Cuban on to everyone into two, so make it like one and a Cuban." Boother explains that Juve is coming to Joyce-Vautour and then "you have to come to me". Joyce-Vautour confirms he will make "half a brick". (Session 5231)

Boother tells Joyce-Vautour to "holler at Juve" and provides him with cell number 647) 655-4881. (Session 5262)

Joyce-Vautour calls Ramsey-Morris. The latter asks if Joyce-Vautour "wanted some too or just for him". Joyce-Vautour replies "just for him". Ramsay-Morris advised that he is just waiting for this guy and he'll call him in an hour or two. They agree to meet the next day, July 8. (Session 5271)

Joyce-Vautour and Ramsey-Morris arrange to meet, as previously agreed. The former will arrive in a taxi driven by Yash. Both parties know Yash. This person is later identified as Yassar Mahmood. (Sessions 5492, 5516, and 5517)

Ramsey-Morris is observed to meet Joyce-Vautour in the taxi at Dennis O'Conner school.

On July 10 a taxi driven by Yassar Mahmood is stopped near Bancroft. Joyce-Vautour is a passenger. He is in possession of 17 ounces of cocaine.

Marshall Brown

63Brown is charged with trafficking in nine ounces of cocaine on June 29, 2014 (count 39). Defence counsel submits that "the evidence does not meet the Sheppard test". In particular, he points out that there may be "drug talk and a meeting" but asks, "Is this enough"? The answer to this question is found in a contextual analysis of Brown's conversations and actions, including other evidence implicating Boother as an active drug dealer. The relevant intercepted communications, expert opinion, and surveillance evidence has already been reviewed. The following evidence is especially relevant:

June 7–8, 2014:

Brown calls Boother and tells him, "I have the thing still". Boother replies "is it proper" "I want the fireball. I don't want no bullshit". Brown replies "as I told you I don't have the thing, don't have the fire." (Session 355)

Brown calls Boother and says "I got a…still, but the prices are high. Boother asks what the prices are like. Brown says 16, 5 for one. Boother says "he will probably take a pack". Brown says that "he has that on deck right now". (Session 380)

The expert described the words "proper" and "fire" as being good quality cocaine. A "pack" refers to 9 ounces of cocaine.

June 16–17, 2014:

Boother calls Brown and asks "if he thinks he can get him fire, he'll pay extra dollar for it." Brown tells Boother that "he can't find what Boother is looking for". Brown says that "he has something though, says this one he can do for 15, a one." Boother says "alright". (Session 900)

June 23, 2014:

Boother calls Brown. Brown says "he has a nice thing he wants Boother to look at". Boother asks "is it like the one? The way you're saying it doesn't sound like the one". Brown says "if it's not the one it's pretty close, says it's the closest one to the one". (Session 1393)

June 29, 2014:

Brown calls Boother and says "this one is the one you know." Boother asks if it's "the one?". Brown says "the problem is it's probably like 1801 right now." Boother says if you could go 17 I'll buy them all". Brown says "1701?" Boother says "yeah I'll take the whole thing." Brown says "alright I'll give it to you for 1701." Boother says "where are you at?" Brown says "I'm gonna come link you right now". (Session 1807)

The expert testified that this conversation is about the price of an ounce of cocaine: Brown will sell one ounce of cocaine to Boother for $1800 but Boother wants it for $1700.

Boother calls Brown and asks "what's on deck right now?" Brown says "pack". Boother says "okay and how much of it pow….how much of it is shake?" Brown says "I don't even know I'm gonna have to go see right now." Brown says "it's the proper thing". Boother says "are you gonna drop it more?" Brown says "I don't know. Let me do the math and get back at you and see if I can drop it more". (Session 1816)

The expert testified that in this conversation, Brown is talking about 9 ounces of cocaine when he says a "pack". When Boother says "pow" it means powder cocaine and "shake" means the cutting agent that is added to the cocaine.

June 29, 2014:

A surveillance team follows Boother to 80 Dundas Street East, apt. 1404, Brown's residence. Boother enters the building lobby. The elevator door opens and Brown waves at Brown to enter. He does and the parties enter Unit 1404. Not long after, Boother come out of apartment 1404.

64A reasonable jury, properly instructed, could come to the conclusion that Brown delivered nine ounces of cocaine to Boother on June 29.

Disposition

Kyle Boother

65On consent, Boother is committed to stand trial on these counts:

• Count 12: Traffic Cocaine (4.5oz)
• Count 15: Possession of Cocaine for the Purpose of Trafficking (2oz)
• Count 21: Possession of Marijuana for the Purpose of Trafficking (2lbs)
• Count 40: Possession of Cocaine for the Purpose of Trafficking (9oz)
• Count 43 – Conspiracy to Traffic Cocaine
• Count 100: Possession of Cocaine for the Purpose of Trafficking (25g)
• Count 110: Possession of Proceeds of Crime Under ($1,870)
• Count 111: Possession of Marijuana (7.9g)
• Count 112: Possession of Cocaine for the Purpose of Trafficking (71.2g)
• Count 126: Unlawful Possession of a Firearm (shotgun) while Prohibited by a s. 109 order
• Count 127: Fail to Comply (cell phone)
• Count 128: Fail to Comply (drugs)
• Count 129: Fail to Comply (firearms)

66In addition, I order Boother to stand trial on these contested counts:

• Count 17: Possession of Cocaine for the Purpose of Trafficking (2oz)
• Count 23: Possession of Cocaine for the Purpose of Trafficking (2oz)
• Count 44: Traffic Cocaine (9oz) (Boother, Ramsey-Morris)
• Count 46: Possession of Cocaine for the Purpose of Trafficking (17oz)
• Count 50: Possession of Proceeds of Crime Under ($1,050)
• Count 95: Unauthorized Possession of a Firearm
• Count 96: Unauthorized Possession of a Firearm
• Count 99: Possession of Marijuana (64 grams) – Not Possession for the Purpose of Trafficking, as charged

67I direct that Boother be discharged on these contested counts:

• Count 2: Possession of Cocaine for the Purpose of Trafficking
• Count 3: Possession of MDMA for the Purpose of Trafficking (63g)
• Count 4: Possession of Marijuana for the Purpose of Trafficking (535g)
• Count 5: Careless Storage of a Firearm
• Count 6: Unauthorized Possession of a Restricted Firearm
• Count 7: Unauthorized Possession of a Restricted Firearm
• Count 9: Unlawful Possession of a Restricted Weapon (Revolver)
• Count 10: Unlawful Possession of a Restricted Weapon (Revolver) while being Prohibited to do so under s.109(2)
• Count 11: Possession of Proceeds of Crime Over ($6,000)
• Count 47: Possession of MDMA for the Purpose of Trafficking (5g)
• Count 48: Possession of Marijuana for the Purpose of Trafficking (3oz)
• Count 49: Possession of Oxycodone for the Purpose of Trafficking (10 pills)
• Count 94: Careless Storage of a Firearm (410 Calibre shotgun)
• Count 97: Unlawfully Possess a Loaded Firearm
• Count 98: Unlawfully Possess a Firearm Knowing that it has been obtained by the commission of an Offence
• Count 125: This is the same charge as count 10: charge laid twice

Zachary Joyce-Vautour

68On consent, Joyce-Vautour is committed to stand trial for these counts:

• Count 2: Possession of Cocaine for the Purpose of Trafficking (XXX)
• Count 3: Possession of MDMA for the Purpose of Trafficking (63g)
• Count 4: Possession of Marijuana for the purpose of trafficking (535g)
• Count 6: Unauthorized Possession of a Restricted Firearm
• Count 7: Unauthorized Possession of a Restricted Firearm
• Count 9: Unlawful Possession of a Restricted Weapon (Revolver)
• Count 11: Possession of Proceeds of Crime Over ($6,000)
• Count 13: Possession of Cocaine for the Purpose of Trafficking (4.5oz)
• Count 46: Possession of Cocaine for the Purpose of Trafficking (17oz)
• Count 50: Possession of Proceeds of Crime Under ($1,050)
• Count 100: Possession of Cocaine for the Purpose of Trafficking (25g)
• Count 101: Possession of Proceeds of Crime Under ($5,000)
• Count 94: Careless Storage of a Firearm (410 Calibre shotgun)
• Count 95: Unauthorized Possession of a Firearm
• Count 96: Unauthorized Possession of a Firearm

69In addition, I order Joyce-Vautour to stand trial for these contested counts:

• Count 43 – Conspiracy to Traffic Cocaine
• Count 47: Possession of MDMA for the Purpose of Trafficking (5g) – committed to stand trial for possession – Not Possession for the Purpose of Trafficking
• Count 48: Possession of Marijuana for the Purpose of Trafficking (3oz) – committed to stand trial for possession – Not possession for the purpose of trafficking
• Count 49: Possession of Oxycodone for the Purpose of Trafficking (10 pills) – committed to stand trial for possession – Not Possession for the Purpose of Trafficking
• Count 55: Possession of Cocaine for the Purpose of Trafficking (2oz)
• Count 66: Possession of Marijuana for the Purpose of Trafficking (2lbs)
• Count 70: Possession of Cocaine for the Purpose of Trafficking (2oz)
• Count 99: Possession of Marijuana (64g) – Not for the Purpose of Trafficking

70I direct that Joyce-Vautour be discharged on these contested counts:

• Count 5: Careless Storage of a Firearm
• Count 45: Possession of Cocaine for the Purpose of Trafficking (9oz)
• Count 97: Unlawfully Possess a Loaded Firearm
• Count 98: Unlawfully Possess a Firearm Knowing that it has been Obtained by the Commission of an Offence

Dane Ramsay-Morris

71On consent, Ramsay-Morris is ordered to stand trial for count 12: Fail to Comply (drugs). In addition, I order Ramsay-Morris to stand trial for these contested counts:

• Count 44: Traffic Cocaine (9oz)
• Count 117: Possession of MDMA for the purpose of trafficking (16 capsules) – committed to stand trial for possession not possession for the purpose, as charged.
• Count 120: Fail to Comply (drugs)

Marshall Brown

72I order that Brown stand trial for count 39: Traffic Cocaine (9oz)

Released: September 4, 2015

Signed: "Justice J. De Filippis"