WARNING
The court hearing this matter directs that the following notice 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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,
(c) he or she is discharged, or
(d) if he or she 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 Information
Ontario Court of Justice
Toronto Region
Parties
Between:
Her Majesty the Queen
– and –
Richard Donison, Jabril Farah, Khalid Jama, Hakeem Mohamed and Adrian Scott
Preliminary Inquiry Ruling on Committal for Trial
Introduction
1The Crown seeks committal for trial for the above-named defendants on multiple counts set out in a 52 count replacement information dated June 17, 2019. These counts relate to alleged crimes including drug trafficking, possession of firearms, shootings and other offences on behalf of a criminal organization in which the five defendants and others were alleged to be members.
2The evidence taken at the preliminary inquiry includes the following: 594 intercepted telephone calls or text messages between March 23, 2018 and June 21, 2018, surveillance evidence, particularly in relation to the shootings of March 24 and April 30, 2018, opinion evidence in relation to firearms and ammunition, drug trafficking slang and coded language, drug trafficking organization, pricing and practices, real evidence seized from a variety of locations and evidence admitted pursuant to s. 540(7) of the Criminal Code.
The Committal Test
3The test for committal for trial has been essentially unchanged for many years and is accurately summarized in the Crown submission at paragraphs 34-38, 40-41. In short, the preliminary inquiry judge must answer the following question: "Is there a scintilla of direct or circumstantial admissible evidence available on each essential element of the offence such that a reasonable jury, properly instructed, could return a guilty verdict". Where multiple competing inferences or conclusions may be available on the evidence, the presiding judge must commit when one of the reasonable inferences favours the Crown. When assessing whether an inference is reasonable in a circumstantial case, the judge must not review the pieces of evidence in isolation but consider the effect of the totality of the evidence.
4I have applied the above principles to each count before me. I will not repeat the test when ruling on the specific counts.
Foundational Evidence
5Before assessing the counts in the information, two crucial pieces of evidence require assessment; the evidence of the identity of persons alleged to be participants in the intercepted telephone communications referred to above and the opinion evidence in respect of drug trafficking language therein.
6The identity of the participants in the intercepted communications is established by their admission in the communication, by direct evidence of the registration of the device and, or, by reasonable inference. It is obvious that the Crown's preliminary inquiry burden is met when there is some direct evidence on point or when a defendant's identity is one reasonable inference that can be drawn from the available evidence.
Voice Identification of Richard Donison
7The Crown alleges that Mr Donison had control over the mobile telephone numbers 647 926-4552 and 437 991-2903 during the period addressed in the information and that the intercepted calls on these numbers form part of the evidence against him in this proceeding.
8Telephone calls in which Mr Donison provides both numbers are made on multiple occasions in April and May 2018 when dealing with an insurer and a tow company. On several occasions Mr Donison identifies both numbers as his own and provides also the license plate number CDYJ 282 as the identifier for his motor vehicle.
9On arrest on June 21, 2018 of Mr Donison one mobile phone was seized. It proved to be 437 991-2903.
10Several pseudonyms are uttered by Mr Donison and/or he responds when they are used to address him in intercepted calls. These include "Jay" and "Crimez". I agree with the Crown's submission that Mr Donison has a distinctive voice that is recognizable on the intercepts provided to the court.
11There is ample evidence to conclude that Mr Donison was the user of the two numbers referred to above and that the two nicknames indicated are used in the intercepted discussions at issue.
Voice Identification of Jabril Farah
12The Crown alleges that telephone numbers 416 371-0504 and 437 990-4871 were under control of Mr Farah during the relevant period. Mr Farah was arrested on May 3, 2018 with 416 371-0504 in his possession. He was the named account holder for 437 990-4871 at the same time. In relevant calls and texts Mr Farah and known associates use the nickname "Jabs" to refer to him. This evidence meets the preliminary inquiry test for the identification of Mr Farah as a voice using the above numbers as a participant in the illicit alleged communications.
Voice Identification of Hakeem Mohamed
13The Crown alleges that Mr Mohamed was in control of 647 531-1022 during the relevant period. Mr Mohamed's use of that line to call his probation office on April 30, 2018, the seizure of the phone registered to that number on his arrest establish that fact. The nicknames "HK" and "Alex" are used by Mr Mohamed on numerous occasions including one occasion where he refers to a curfew on a known outstanding recognizance that bound him at the time. This evidence identifies Mr Mohamed as both the user of that phone line and as HK in relevant criminal conversations.
Voice Identification of Adrian Scott
14Mr Scott is alleged to be the user of 647 568-0363. In my view this is established by the available evidence. On March 23, 2018 it is apparent that Mr Scott uses that line to ask Mr Donison to pick him up at the Newmarket courthouse. The information for charges faced by Mr Scott established that he appeared in Newmarket to answer charges on that day. Other phone calls to that number in the relevant period address the recipient as Adrian. In multiple calls Mr Scott is addressed by the nickname "CP". He used a version of that nickname on his Instagram account.
Voice Identification of Khalid Jama
15The Crown alleges that Khalid Jama was a participant in a series of phone calls of importance. These are May 2, 2018 call session 7472 and May 5, 2018 call sessions 8046, 8050. On May 2, 2018 Mr Jama and "Verbz", the nickname for an alleged fellow gang member, Mowlid Mohamed. In that call "Verbz" addresses Mr Jama by his first name, Khalid. Mr Jama responds to this address. On May 5, 2018, Mr Jama asks Mr Donison which firearm was seized by the police in the search of Upti's on May 3, 2018. His interest and his lack of response when Mr Donison informs him that the seized firearm is "yours ones" may infer his involvement in the March 24, 2018 shooting. These calls are some evidence that the man in these intercepts speaking to Mr Donison is Mr Jama.
Expert Evidence: Detective John Margetson
16I qualified Detective Margetson, of the Toronto Police Service, as an expert to give opinion evidence with respect to the characteristics of street level trafficking, whether by individuals or by a network, methods of trafficking, including pricing and packaging, multiple persons trafficking in a defined urban neighbourhood, and coded and guarded language.
17The content of Detective Margetson's evidence is summarized on pages 10-14 of the Crown's submissions on committal. The scope of expertise described in the above paragraph enables the court to draw inferences from the direct evidence which might not otherwise have been available to me. The interpretation of coded and guarded language, or slang according the Detective's preference, is some evidence that meets the preliminary inquiry standard. Should there be meanings to words or phrases other than that given to them by the witness, I accord those words or phrases the interpretations based on the evidence which favour the Crown's cause. In all counts based, in whole or part, on intercepted communications the court will consider as some evidence the interpretation of the slang by Detective Margetson.
18I am uneasy with application of the bulleted portion of paragraph 27 of the Crown submission, based on the evidence of detective Margetson, which reads:
"Heroin/Fentanyl"
Intelligence reports show that fentanyl is being added to heroin at a high level to increase profits and potency of heroin. The present heroin market is so saturated with fentanyl that it is the rule rather than the exception for heroin to contain fentanyl.
19In my view this excerpt suggests that it is a rebuttable presumption that currently trafficked heroin is adulterated with fentanyl. While this may well accord with the best current police intelligence of the contraband drug market it is not evidence that the defendants before me have trafficked adulterated heroin with fentanyl. I decline to order committal for trial for counts involving fentanyl absent evidence of intercepted communications which contain appropriate admissions or evidence of the presence of fentanyl. The evidence of fentanyl adulterated heroin seized during the search of "Upti's" on May 3, 2018 is of course some evidence of the counts related to that event.
Rulings on Counts in the Information
20For convenience the court follows the order of groups of counts that the Crown employed in their submission.
Counts 36, 37, 38, 39 – Donison Drug Trafficking
21Counts 36, 37, 38, 39 in which Mr Donison is charged with trafficking in heroin, fentanyl, cocaine and Percocet during the period March 7 to June 20, 2018. There are multiple intercepts in respect of each count during the period March 23 to May 10, 2018 in which Mr Donison employs both of his identified mobile phone lines, 647 926 4552 and 437 991 2903 to traffic in heron, cocaine and percocets using the slang identified in the evidence of Detective Margetson. The slang words "down""a point" and variations on the word "dizzy" are used in respect of heroin. The slang expressions "hard""soft""up" and "siz" reference cocaine. The expressions "Ps""percs""p""perky" are some evidence that Mr Donison is trafficking in percocets. The language and context of the calls are evidence they are made while selling the controlled substances indicated above, and in some cases, fielding the complaints of dissatisfied buyers. Mr Donison stands committed for trial on counts 36, 38 and 39. I discharge him on count 37.
Counts 40, 41, 42 – Mohamed Drug Trafficking
22Counts 40, 41, 42 reference charges of trafficking of heroin, fentanyl and cocaine against Mr Mohamed in the March 7 to June 20, 2018 period. Evidence of intercepted communications led by the Crown points to sales of the contraband drugs alleged during the period April 19 to June 19, 2018. The heroin was referred to as "down", the cocaine as both "hard" and "soft". The evidence of the language and context of the intercepted discussions meet the preliminary inquiry test for committal in respect of counts 40 and 42. I discharge him on count 41, trafficking in fentanyl.
Counts 43, 50, 51, 52 – Scott Drug Trafficking
23Mr Scott has conceded committal on counts 43, in which he is individually charged with traffic cocaine, and counts 50, 51 and 52 in which he is charged with trafficking heroin, fentanyl and cocaine jointly with Mr Donison. For reasons given previously, I discharge him on counts 51.
Counts 44, 45, 46 – Donison and Farah Joint Trafficking
24Counts 44, 45 and 46 allege that Mr Donison and Mr Farah jointly trafficked in heroin, fentanyl and cocaine during the period March 7 to June 20, 2018. In respect of the heroin charge the intercepted communications led by the Crown reveal conversations between Mr Donison and Mr Farah and third parties between March 23 and April 30, 2018 discussing sales of "dizz""down" and "dizzy".
25In respect of the cocaine charge, between March 23 and April 30, 2018 Mr Donison and Mr Farah speak together on intercepted communications regarding selling "hard". Mr Donison arranges sales between Mr Farah and third parties. There is discussion regarding "Upti's" on March 23 and 30, 2018 that suggest Upti's is a stash house for controlled substances concerned for these men and others. I commit them both on counts 44 and 46, but discharge on count 45.
Counts 47, 48, 49 – Donison and Mohamed Joint Trafficking
26Counts 47, 48 and 49 allege that Mr Donison and Hakeem Mohamed jointly trafficked in heroin, fentanyl and cocaine during the period March 7 to June 20, 2018. Evidence of intercepted communications between both men, and with others, during the April 13 and June 15, 2018 period is replete with the use of the slang "down""B""a ball" and "soft" in a context which is clearly that of a transaction. Mr Scott also speaks to Mr Donison about the inferior quality of the cocaine he purchased from the two men. This call, session 2146 on April 25, 2018 is also evidence of the existence of a criminal organization. I discharge the two on count 48 and commit on counts 47 and 49.
Counts 50, 51, 52 – Donison and Scott Joint Trafficking
27Counts 50, 51 and 52 allege joint trafficking in heroin, fentanyl and cocaine, by Mr Donison and Mr Scott between March 7 and June 20, 2018. The Crown relies on communications intercepted between March 29 and June 1 which include some evidence of transactions for "diz""balls" and "soft". These calls supply evidence to the required standard for committal for counts 50 and 52. I discharge on count 51.
Conspiracy Charges
Count 34 – Conspiracy to Traffic Cocaine
28Count 34 alleges a conspiracy to traffic cocaine between Mr Donison, Farah and Mohamed in the period March 7 to June 20, 2018. Intercepted communications from May 1, 2018 point to coordination between the three men of sales of "up" to an individual on that day. Another May 1, 2018 intercept references an arrangement for Mr Mohamed and Mr Farah make drug deals for him while he attends the Newmarket courthouse. A call on June 17, 2018 is evidence of an arrangement to fund drug inventory between Mr Donison and "Alex", apparently Mr Mohamed. The above is some evidence of both an intention and an agreement to traffic in cocaine. I commit all three men on that count.
Count 35 – Conspiracy to Traffic Oxycodone
29Count 35 alleges that between March 7 and June 20, 2018 Mr Donison and Mr Farah conspired to traffic in oxycodone. The Crown called evidence of communications intercepted on May 3, 2018 wherein the two men agree to sell 3 "percs" to an individual. This is some evidence of the indicated charge.
The Shootings
March 24, 2018 Shooting
30The evidence in relation to the counts associated to the shooting on the above date is found in multiple communication intercepts, surveillance video, shell casings found at the scene and evidence of a firearm seized on May 3, 2018. The counts relating to this shooting are: 2, 3, 5, 6, 7, 8, 9, 10.
31The evidence led by the Crown supports the following narrative: Intercepted communications on March 25th and following days indicated that Mr Farah and Mr Jama believed that members of a hostile criminal organization attended an apartment building known as Scarlett Manor on March 24, 2018. Scarlett Manor is a large, multi-story building in the Weston Rd, Lawrence Avenue West neighbourhood where the crimes alleged in this information took place and the men charged reside or frequent. It is also part of the territory of the SSW-G2M organization. The evidence establishes that one of these men was known to have previously seriously injured "Verbz", a member of the organization.
32Surveillance video revealed that on the night of March 24, 2018, Mr Farah and Mr Jama made two trips in a van within a short period of time from an apartment building situated at 5 Bellevue Crescent, a short distance from Scarlett Manor. Mr Jama lived in this building. The two men drove off in a van registered to Mr Jama. He drove while Mr Farah sat in the front seat passenger.
33Contemporaneous video showed 2 unknown men leaving Scarlett Manor and then entering a light-coloured sedan located in the building's parking lot. After Mr Farah and Mr Jama left 5 Bellevue the second time, the van driven by Mr Jama pulled up in front of this sedan. At least one muzzle flash can be seen in the immediate area of the front passenger window. Adjacent was the seat occupied by Mr Farah. The van then sped off in the direction of 5 Bellevue. Mr Farah and Mr Jama are then filmed in the elevator at 5 Bellevue. In the elevator Mr Farah appears to enjoy re-enacting the shooting. Later intercepts of discussions between Mr Farah and Mr Donison confirm that Mr Farah was the shooter on March 24, 2018 and that Mr Jama was a party to the shooting.
34Communication intercepts the next day also record Mr Farah asking Mr Donison to procure more "teeth". He also described the shooting itself, with description of his role and that of Mr Jama. The Crown alleges that the meaning of the expression "teeth" is ammunition. This is an entirely reasonable inference in this context.
35There is additional evidence to support the Crown's position regarding the identity and respective roles of the two men. Mr Farah can be identified in the March 24, 2018 elevator video footage at 5 Bellevue at the relevant time. His face is bathed in shadow in the elevator video. However, he is clearly wearing the North Face jacket with blue logo and trim matching the jacket seized from him on arrest May 3, 2018 at Upti's. Contemporaneous video surveillance in the 5 Bellevue lobby clearly demonstrate Mr Farah's face and the identical apparel. Mr Jama is clearly present based on the video surveillance.
36Several shell casings were found in the location of the shooting on March 25, 2018. Forensics analysis ultimately confirmed that they were ejected from a 9mm Trojan STI 1911 handgun seized when Mr Farah was arrested and Upti's searched on May 3, 2018.
37The evidence described above is adequate to establish Mr Jama's knowing participation in the Scarlett Manor shooting on March 24, 2018. Additional evidence can be found in Mr Jama's communications with Mr Donison on May 5, 2018 following Mr Farah's arrest and the search of Upti's. In these intercepts a reasonable inference can be drawn both that Mr Jama had a guilty specific interest in finding out whether the handgun seized was the one employed on March 24, 2018 and that he participated to avenge the earlier attack on an associate.
38Two other issues arise out of the submissions of counsel. Mr Farah's counsel properly concedes committal in respect of all charges against his client arising out of this shooting save the charges of attempt murder and the charges in relation to a criminal organization, counts 2, 3, and 5. In my view the authorities are clear that the discharge of a firearm at persons is evidence of an intention to kill. There is ample evidence available to the reasonable, well-instructed jury to convict Mr Farah of the discharge of a firearm at two unknown persons on the date alleged. I commit him on all the counts related to this shooting. I will provide my reasons for committal on the criminal organization related counts later in this ruling. It is uncontroversial that no one in this proceeding had legal authorization to possess the firearm involved.
39Counsel for Mr Jama contends that the available evidence does not allow the inference that her client was a party to the shooting. I disagree. While no inculpatory utterances relevant to the shooting by Mr Jama are intercepted prior May 5, 2018, the surveillance record and the fact of his control of the vehicle used in the shooting strongly suggest that he was a willing participant with foreknowledge of these crimes. The events occur within a tight time framework, suggesting strongly that the two men drove directly to and from their mission with criminal focus. The driver placed the vehicle in a position to carry out the attack and sped away immediately afterwards. On this evidentiary record, a jury may find that Mr Jama's willing participation is the only rational inference.
40It little matters that there is no evidence Mr Jama physically handled, pointed, or discharged the firearm. The evidence of Mr Jama's participation is some evidence that he was a party to the crimes referenced in counts 2, 3, 5, 6 and 7.
41No party contests the evidence that none of the parties has lawful authority to possess a restricted weapon. The evidence relating to the acts of pointing and discharging a firearm are obvious and self explanatory. As indicated above, I will discuss later in this ruling my views on counts related to criminal organization.
April 30, 2018 Shooting
42There is evidence upon which a reasonable, properly instructed jury could convict Mr Farah of the counts related to the above shooting. Counsel for Mr Farah has appropriately conceded committal on counts 11, 12, 13, 14, 15 and 16.
43During his flight from the April 30, 2018 shooting Mr Farah lost his mobile phone. Count 17 involves evidence of multiple intercepted communications between Mr Donison, Mr Mohamed, Mr Farah and others in the search for Mr Farah's lost mobile phone. Their concern was obviously that the phone contained evidence implicating Mr Farah, and his associates, criminal offences not limited to the shooting. Mr Donison and Mr Mohamed were coordinating a concerted the search for the phone by multiple parties. The rich evidence of relevant intercepts is corroborated by surveillance video of the area of the shooting. Both Mr Donison and Mr Mohamed must be committed on this count.
Firearm Seizures and Related Counts
44Counts 18 through 22 relate to the seizure of Glock 9mm handgun with a magazine capable of holding more than 10 cartridges from a fire extinguisher cabinet on April 16, 2018. The evidence is that Mr Donison stored the weapon in this location because it was immediately adjacent to his apartment at 33 King St in the Lawrence Avenue and Weston Road area. It was discovered during a routine check by a fire safety inspection company worker. The following day Mr Donison's telephone calls reported the seizure to Mr Farah and Mr Mohamed. The calls were intercepted and form part of the evidence against him. Earlier, on April 7, 2018, Mr Donison had confirmed his address during a telephone call with a crack purchaser. On May 16, 2018 Mr Donison and Mr Scott had a full and frank discussion regarding his responsibility for the loss. Of course, Mr Donison had no authority to possess such a weapon, the magazine was a prohibited device and he was subject to a lifetime ban on possessing firearms. He stands committed on all related charges.
45Count 23 alleges that Mr Scott transferred ammunition between March 25 and March 30, 2018. There is evidence that Mr Scott possessed no authority for such a transfer. The evidence before the court consists of intercepted telephone calls from Mr Farah to Mr Donison and then between Mr Donison and Mr Scott beginning the day after the March 24, 2018 shooting. On March 25, 2018, Mr Farah asked Mr Donison for more "teeth". Mr Donison had no difficulty understanding what "teeth" meant. Given that "teeth" is not referenced in the drug nomenclature supplied by Detective Margetson, in context it is a reasonable inference that "teeth" refers to ammunition for the handgun Mr Farah fired at persons unknown the previous night. Mr Donison's response was to tell Mr Farah that he would ask "CP" about it. Intercepts later that day disclose Mr Donison asking Mr Scott for "teeth". The two men then arranged to meet the following day, March 26, 2018. There is evidence that the two men spoke several times on March 27, 2018 and that the transfer took place on that day. there is further evidence that the means and location of the transfer were confirmed by police surveillance. There is sufficient evidence to commit Mr Scott for trial on this count.
Upti's – The Stash House
46On May 3, 2018 Toronto Police searched 1693 Weston Road, invariably referred to as "Upti's" in the course of this matter. The evidence is replete with multiple indications that Upti's was a stash house used by the SSW-G2M. That evidence consists of voluminous intercepted communications and surveillance. The discovery at Upti's of the handgun which was used in the March 24 and April 30, 2018 shootings further cements the link between that premises and some of the individuals charged.
47I am mystified by suggestions that the word "Upti's" has a number of commonplace meanings which have no criminal association. It is not the commonplace, or any, definition of this word that gives it potential significance to a trier-of-fact in a future proceeding. It is the evidence that the defendants and their associates consistently use "Upti's" to refer to a location which is used to store and deal drugs and stash weapons which gives it importance.
Counts 24, 25, 26, 27 – Restricted Firearm Possession
48Counts 24, 25 and 26 allege that Mr Donison, Farah, Jama and Mohamed had possession of the restricted firearm, namely the Trojan firearm used in the two shootings featured in this prosecution. The Crown has suggested amending the language of count 24 to provide for the presence of readily accessible ammunition. This suggestion accords with the evidence. Count 26 references the defaced serial number on this handgun. The is ample evidence in multiple intercepted communications in the period May 3 to May 4, 2018 to establish knowledge and infer both joint and constructive possession of this firearm on the part of Mr Donison, Mr Farah and Mr Mohamed on or about May 3, 2018.
49I disagree with the Crown submission that there is sufficient evidence to commit Mr Jama to trial on these three charges. There is no evidence that Mr Jama visited Upti's at any time, let alone on or about May 3, 2018. In the first intercepted call between Mr Donison and Mr Jama on May 5, 2018, Mr Donison volunteered that the police seized a handgun during the search. The second intercepted call, in which Mr Jama asks which gun was found by the police, likewise contains no admission by him from which his joint possession can be construed. The only reasonable conclusion that can be drawn is that Mr Jama was ignorant of which weapon had been hidden. The last portion of evidence to which the Crown refers is a call between Mr Donison and Mr Farah, in which the latter states that he got the gun from Khalid's uncle and later told Mr Jama that he was going to buy it. This is also not capable of inculpating Mr Jama.
50The only evidence at this preliminary connecting Mr Jama to the handgun in question relates to the events of March 24, 2018. No reasonable inference of possession can be drawn from evidence dating after that matter. I discharge him on counts 24, 25 and 26.
51Count 27 references that on or about May 3, 2018, Mr Donison possessed a restricted weapon while prohibited. The evidence described in relation to this count is summarized above in relation to counts 24 through 26. The 540(7) materials filed contained evidence of the relevant prohibition. He stands committed on this count.
Counts 28, 29, 30, 31 – Possession for Purpose of Trafficking
52Count 28 references a charge of possession oxycodone for the purpose of trafficking. The evidence consists of multiple intercepted calls between Mr Farah and Mr Donison on May 3, 2018 in which the two men arrange the sale of the drug to an individual named "Dutch".
53Counts 29, 30 and 31 find Mr Donison, Mr Farah and Mr Mohamed charged with possession for the purpose of trafficking of heroin, fentanyl and cocaine. During the May 3, 2018 police search of Upti's .67 grams of heroin adulterated with fentanyl, 6.23 grams of cocaine and a cutting agent were seized. The importance of Upti's to the criminal activities of the three men is based on dozens of intercepted calls. Numerous intercepts confirm they accessed and used Upti's to store drugs and firearms. They often met each other at Upti's. They dealt drugs in the immediate vicinity of Upti's. The intercepts confirm that all three men had keys to Upti's. They all knew that firearms were stored at Upti's. In my view there is evidence that the firearm and the drugs were in joint possession of the three men.
Criminal Organization
Definition and Legal Framework
54Criminal Code s. 467.1(1) states:
"criminal organization" means a group, however organized, that
(a) is composed of three or more persons in or outside Canada; and
(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.
55The Crown asks for committal on a variety of charges alleged to have been committed "for the benefit of, at the direction of, or in association with a criminal organization". (Counts: 1, 2, 3, 4, and 11). It is their submission that the persons committing the crimes do so to advance their illegal traffic in narcotics and that the crimes of violence associated with their activity, the offences connected to the shootings on March 24 admit April 30, 2018 are committed to preserve a monopoly over the neighbourhood drug trade and protect or avenge their local associates.
The March 24, 2018 Shooting and Criminal Organization
56The narrative in this matter begins with the shooting on March 24, 2018. There is ample evidence that the shooting was carried out for a criminal associate named "Verbz", a nickname for Mowlid Mohamed. Mr Mohamed was apparently run over by a "Somali youth" and member of a rival gang centred in the Dixon neighbourhood to the north-west of Lawrence/Weston Road. There is some evidence that Mr Jama saw or was informed of the presence of this person in Scarlett Manor on the day of the shooting and communicated it to Mr Farah.
57"Verbz" is not mentioned in many contexts other than the March 24, 2018 attack except in the following meaningful instances. On March 27, 2018 "Verbz" called Mr Donison and, while Mr Donison, Mr Farah and Mr Mohamed were on the line, asked an associate named "Gully" to convince a woman named Sadia not to give evidence against him in a criminal matter. On April 22, 2018 Mr Donison Mr Farah and "Verbz" celebrated "Verbz" birthday with a phone call. On May 2, 2018 Mr Jama and "Verbz", both incarcerated in the Toronto South Detention Centre, were linked on a conference call with Mr Donison, Mr Farah and Mr Mohamed. In that call "Verbz" and Mr Jama appear to great each other with warm familiarity. All this communication, particularly the request to interfere with a justice participant, permit the inference that "Verbz" was a valued criminal associate.
58In the intercepts from May 3, 2018 Mr Donison called Mr Farah to warn him that the police were looking for him and asked him in coded language if the handgun was in Upti's. Mr Farah responded that the handgun was in a location within Upti's where "Verbz" had previously done something, unintelligible on the audio of the intercepted communication. In addition to being evidence of Mr Farah's guilty knowledge of the firearms whereabouts, this is additional evidence that the March 24 revenge shooting by Mr Farah with the assistance of Mr Jama was not a personal quarrel of Mr Farah's but was associated with avenging a criminal associate. "Verbz" had access to Upti's. It is a reasonable inference that "Verbz" was therefore a trusted SSW-G2M member and the shooting of March 24, 2018 was not a mere act of friendship but was carried out to avenge an attack on a co-worker. Additional evidence of the criminal organization's interest in the March 24 reprisal shooting can be found in the speedy and thorough report to Mr Donison the next day by Mr Farah.
59A criminal organization need not have a name, an insignia, a formal chain of command or a secret handshake. Its affairs need not be conducted with intelligence, sophistication or competence. But one of its main purposes must be the facilitation of criminal acts. After the March 24 shooting, Mr Donison hastened to have ammunition resupplied to Mr Farah by Mr Scott. That evidence suggests the existence of an organizational division of labour. Were Mr Farah a sole actor, Mr Donison would have been unlikely to see immediate resupply as his responsibility. The communications intercepted in the aftermath of the March 24 shooting betray Mr Farah and Mr Donison's concern for potential reprisal. Reprisal on behalf of the organization invited a repost against it.
60The above evidence permits the reasonable inference that the shooting on March 24, 2018 by Mr Farah and Mr Jama was both for the benefit of, and in association with a criminal organization composed of, at very least, Mr Donison, Mr Farah, Mr Mohamed, Mr Jama and "Verbz". The conclusion that Mr Farah and Mr Jama carried out the March 24, 2018 shooting "for the benefit of, at the direction of, or in association with" the SSW-G2M organization are reasonable inferences based on the evidence in this inquiry.
The April 30, 2018 Shooting and Criminal Organization
61In the immediate aftermath of the April 20 shooting Mr Donison, Mr Mohamed and unnamed others were frantically searching for the mobile phone lost by the shooter, Mr Farah, in his flight from the scene. Mr Donison and Mr Mohamed had been in the immediate vicinity prior to the shooting. The concerted attempts to locate the phone suggest that they were reacting to the threat the contents of the phone posed to their collective enterprise as much as to any legal peril that threatened Mr Farah if the phone was seized by the police. The focused, coordinated and collective search for Mr Farah's mobile phone on April 30, 2018 is some evidence of the existence of a criminal organization.
62There is considerable evidence that the April 30 shooting took place to enforce the exclusion of competing drug traffickers from the Lawrence West/ Weston turf. Much of that evidence consists of intercepted post-offence telephone calls by Mr Farah to Mr Mohamed. In these calls it would appear that "Dixon Youths" were the targets and that their presence in the neighbourhood was the cause.
Territorial Control and Organization
63The SSW-G2M demonstrated an intention and ability to react to perceived territorial transgressions by other criminal organizations. The intercepted communications in the March-June 2018 period are replete with statements by Mr Donison regarding his aggressive treatment of rival traffickers found on SSW-G2M territory. In a March 23, 2018 intercept, Mr Donison, Mr Farah and "Verbz" discuss an attack on competitors the "Scarlett guys" the previous summer. On March 29, 2018 Mr Donison speaks of checking out potential "ops", or competitors, who are at the back of the Waryaa, a convenience store adjacent to the April 30, 2018 shooting which is a gathering point for SSW-G2M members.
64In intercepts on April 3 and June 12, 2018 intercepts Mr Donison and other members discuss a film being shot in the neighbourhood without their permission. The inference that can be made of these discussions is that the speakers assume the authority to permit or deny the use of their territory for such purposes.
65In intercepted communications the members of the organization identify buyers who have bad debts and discuss measures taken to deal with them.
66Intercepted communications indicate SSW-G2M members took pains to identify both potential police informants and suspected undercover officers.
Membership and Organization Structure
67In the March 24 to June 20th period Mr Donison, Mr Farah, Mr Mohamed and Mr Scott are frequently involved in the sale of contraband drugs. Mr Donison is the key connection in the intercepted communications regarding trafficking in evidence at the preliminary inquiry. As we have seen, however, there is other evidence establishing common involvement and interest in the shootings of March 24 and April 30, 2018. Together with the other evidence called at the preliminary inquiry, this is powerful evidence that the four men above act in concert as a criminal organization for their common enrichment, or "for the benefit of" in the language of s. 467.12 through drug trafficking. They are appropriately committed on count 1.
68The existence of a criminal organization is confirmed by evidence of several features, though in my view the trafficking network described in the evidence, the firearms/acquisition distribution process for this organization and the acts of violence committed on its behalf suffices to establish the existence of a criminal organization and its membership in this matter to the committal standard. In addition to the evidence cited above, there is considerable evidence that this criminal organization took pride in its "brand" and sought to take care of its incarcerated members.
Adrian Scott and Criminal Organization Membership
69Counsel for Mr Scott concedes committal on the drug trafficking counts against his client but contends that there is no evidence he did so "for the benefit of, at the direction of, or in association with a criminal organization". He points to the content of a May 14, 2018 intercepted communication as evidence that Mr Scott acts as individual criminal. In this conversation, Mr Scott contends with Mr Donison regarding his proposed upcoming visit to the Lawrence Avenue West/Weston Road neighbourhood. Mr Donison seems to demand that Mr Scott's visit requires permission from the organization. He suggests that Mr Scott is a stranger to the neighbourhood. In my view, this communication, when viewed in isolation from the rest of the evidence, supports the inference suggested by counsel.
70Identifying a competing reasonable inference that supports the defence position is not the test for committal for trial at a preliminary inquiry. There is much evidence that supports the contention that Mr Scott was a member of the criminal organization featured in this prosecution.
71The evidence, discussed in relation to counts 50, 51 and 52, that Mr Scott actively trafficked in unlawful drugs, has relevance to this count. In his intercepted telephone discussions with Mr Donison on March 27, April 15 and June 1, 2018, the two men coordinate sales of drugs to multiple customers at different location and discuss collection of monies owed. In my view this is some evidence of trafficking in association with a criminal organization.
72Some evidence that Mr Scott was member a member of the criminal organization is evidenced by the contents of his Instagram account introduced by way of s. 540(7). A Toronto Police Service detective was accepted as a follower of this account on November 22, 2107. Mr Donison and Mr Mohamed have convivial photographs posted to the account. Mr Scott posted a photograph on October 20, 2017. This photograph has the hashtag #SSWR, which is alleged in the 540(7) materials to stand for "South Side Weston Road). One photograph of Mr Scott sharing a moment with Mr Mohamed was captioned "You don't know what I'll do for the gang" this photograph was posted to the account August 11, 2017.
73In addition to the above evidence of Mr Scott's relationship to the criminal organization, there is the evidence, referred to previously, of Mr Scott as a source of weapons and ammunition to the organization. I have already referenced the communications of March 25, 2018 regarding the resupply of "teeth", or ammunition, to Mr Farah by way of Mr Donison.
74Following the seizure of Mr Donison's firearm from the fire extinguisher cabinet on April 16, 2018 he reported the loss to Mr Scott. Mr Scott responded by chastising Donison for loss of the weapon. In my view a reasonable interpretation of the rest of the discussion consists of Mr Scott telling him that the cost of replacing the firearm was "on your part", that is, Mr Donison's responsibility. Were Mr Scott simply a trafficker in firearms and Mr Donison simply his customer there would be no reason for this frank, negative assessment of Mr Donison's conduct in leaving the firearm where is could be discovered. There would be no reason to tell Mr Donison that he bore the cost of replacement. This discussion makes sense if Mr Scott is speaking as a fellow member of the criminal organization complaining of the loss of a valuable tool of their trade.
75In intercepted calls between May 10 and May 16, 2018, Mr Donison and Mr Scott repeatedly discussed provision of more firearms for the organization.
76The evidence recounted above compels the conclusion that there is some evidence that Mr Scott is a member of the SSW-G2M and requires his committal on counts 1 and 5.
Conclusion
Judge Michael Block Ontario Court of Justice September 18, 2019