ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
BRANDON SPAULDING
Before Justice David A. Harris
Heard on August 24 & 25, November 25, December 5, 6 & 12, 2022 & January 11, 2023
Reasons for Judgment released on April 25, 2023
Meredith Gardiner and Kristina D. Mildred counsel for the Crown
Adam Weisberg and Mya Sengupta-Murray ………………. counsel for the defendant Brandon Spaulding
HARRIS J.:
INTRODUCTION
1Brandon Spaulding originally appeared before me in answer to an Information wherein he was charged with 109 counts. On the first day of trial Counsel advised me that they had agreed to consolidate these into 10 counts wherein he was charged that:
(10) between the 3rd day of December in the year 2020 and the 17th day of December in the year 2020 at the City of Ancaster in the said Region and elsewhere in the Province of Ontario without lawful excuse, did have in his care or control of an explosive substance to wit: grenades, contrary to Section 82(1) of the Criminal Code; and
(11) between the 3rd day of December in the year 2020 and the 17th day of December in the year 2020 at the City of Ancaster in the said Region and elsewhere in the Province of Ontario, did traffic in a substance included in Schedule I to wit: cocaine, contrary to Section 5(1) of the Controlled Drugs and Substances Act; and
(13) on or about the 29th day of January in the year 2021 at the City of Brantford in the said Region and elsewhere in the Province of Ontario without lawful excuse, did have in his care or control of an explosive substance, to wit: grenades contrary to Section 82(1) of the Criminal Code; and
(14) on or about the 29th day of January in the year 2021 at the City of Brantford in the said Region and elsewhere in the Province of Ontario, did possess 11 prohibited or restricted firearms, knowing that he was not the holder of a licence under which he may possess them, contrary to Section 92(1) of the Criminal Code; and
(25) on or about the 29th day of January in the year 2021 at the City of Brantford in the said Region and elsewhere in the Province of Ontario, did have in his possession 6 prohibited devices to wit: magazines knowing that he was not the holder of a licence under which he may possess them, contrary to Section 92(2) of the Criminal Code; and
(31) on or about the 29th day of January in the year 2021 at the City of Brantford in the said Region and elsewhere in the Province of Ontario, did possess a prohibited firearm together with readily accessible ammunition capable of being discharged in the said firearm and was not the holder of an authorization or licence under which he may possess the said firearm in the place, contrary to Section 95(1) of the Criminal Code; and
(32) on or about the 29th day of January in the year 2021 at the City of Brantford in the said Region and elsewhere in the Province of Ontario, did transfer or offer to transfer 11 prohibited or restricted firearms knowing that he was not authorized to do so, contrary to Section 99 of the Criminal Code; and
(43) on or about the 29th day of January in the year 2021 at the City of Brantford in the said Region and elsewhere in the Province of Ontario, did without lawful authority transfer 11 prohibited or restricted firearms contrary to Section 101 of the Criminal Code; and
(54) on or about the 29th day of January in the year 2021 at the City of Brantford in the said Region and elsewhere in the Province of Ontario, was without lawful excuse in possession of 3 firearms knowing that the serial number on them had been removed, contrary to Section 108(1)(b) of the Criminal Code; and
(68) between the 29th day of January in the year 2021 and the 2nd day of February in the year 2021 at the City of Brantford in the said Region and elsewhere in the Province of Ontario, unlawfully did traffic in a substance included in Schedule I to wit: cocaine, contrary to Section 5(1) of the Controlled Drugs and Substances Act.
2Counts 11, 14, 25, 32 and 68 are indictable offences. Crown counsel elected to proceed by indictment with respect to counts 10, 13, 31, 43 and 54.
3Mr. Spaulding waived the reading of the election and elected to be tried in the Ontario Court of Justice.
4Crown and Defence both consented to the trial taking place in the City of London.
5Mr. Spaulding entered pleas of not guilty and the trial began.
6Six days were scheduled for trial, being August 24, and 25, November 25, December 5, 6 and 12, all in 2022.
7On the first day, I was provided with an Agreed Statement of Facts. Crown counsel gave a short opening and called seven police officers who had conducted surveillance in this case.
8At the beginning of day 2, Counsel for Mr. Spaulding objected to the surveillance evidence being introduced, arguing that it was irrelevant evidence. I overruled him. I was satisfied that the evidence was relevant. After hearing the rest of the evidence, I am still of the same opinion.
9Crown counsel called three more surveillance witnesses and we closed for the day.
10In November, 2022, counsel for Mr. Spaulding brought an application to stay the charges on the basis that his right to be tried within a reasonable time, as guaranteed by section 11(b) of the Canadian Charter of Rights and Freedoms had been infringed.
11When we resumed the trial on November 25, it was agreed that we would continue to hear all of the evidence and hear submissions on the trial and only then hear the Charter application.
12Over the remaining four days, Crown Counsel called two Under-Cover Officers (UCO 1 and UCO 2) and a Police Agent. Mr. Spaulding testified for the Defence. I also heard portions of certain audio recordings and saw portions of various video recordings.
13The case was adjourned until January 11, 2023, for submissions on the trial and also on the Charter application. Following those submissions, the case was then adjourned until April 25, 2023, for judgement.
14I find Mr. Spaulding guilty of counts 11 and 68, both involving trafficking in cocaine.
15I find him not guilty of all other counts.
16The Charter application is dismissed.
17My reasons for all of this are as follows.
18During submissions, Crown Counsel asked me to dismiss Count 13 on the basis that there was no evidence before me that the alleged grenades referred to in that count were in fact an explosive substance.
19With respect to the remaining counts, most of the facts alleged in this case were not in dispute.
20In the Fall of 2020, the Ontario Provincial Police began investigating Sean Sutherland in what came to be known as Project Weaver.
21Ultimately the Police Agent, together with Under-Cover Officers arranged to purchase drugs and hand grenades from Mr. Sutherland.
22On November 19, 2020, UCO 2 and the Police Agent bought 6 grenades from Mr. Sutherland for $12,000.
23On November 24, 2020, the Police Agent, accompanied by an Under-Cover Officer, bought 6 grenades from Mr. Sutherland for $12,000 and 1 kg of cocaine for $65,000.
24On December 9, 2020, the Police Agent and UCO 2 and Mr. Sutherland met and discussed UCO 2 purchasing 100 grenades and a rocket launcher and other weapons.
25On December 13, 2020, UCO 2 and the Police Agent purchased 9 grenades from Mr. Sutherland for $17,500.
26Mr. Spaulding was not involved in any of these transactions.
27Mr. Spaulding was an employee of Mr. Sutherland. He worked in Mr. Sutherland’s cannabis shop.
28The Police Agent testified that he had seen him there 10 to 15 times and had interacted with him one or two times in the shop. On one or two other occasions, acting on Mr. Sutherland’s instructions, Mr. Spaulding had delivered shatter to the Police Agent at a gas station across the street from the shop. The Police Agent did not know Mr. Spaulding’s name at the time. Mr. Sutherland told him that he would be dealing with “the blonde kid”.
29Shatter is an extract, which is a type of cannabis concentrate produced using a combination of cannabis plant matter and solvents. It was a product commonly sold through cannabis shops at the time.
30These events involving Mr. Spaulding occurred before the Police Agent started working for the police and are not the subject of any charge before me.
31The charges against Mr. Spaulding arise out of three separate transactions.
32The first of these transactions (Counts 10 and 11) occurred on December 17, 2020.
33Following the December 9, 2020, meeting, the Police Agent had arranged with Mr. Sutherland for Mr. Sutherland to sell the agent .5 kg. of cocaine for $31,000. Mr. Sutherland would also sell 60 hand grenades to UCO 2 for $110,000.
34It was originally planned that Mr. Sutherland would be delivering these items personally. This changed at the last minute however and Mr. Spaulding delivered the cocaine and the grenades to the Police Agent and to UCO 1 and UCO 2 and he received the money from them in payment.
35As per the Agreed Statement of Facts there is no issue that the alleged cocaine was in fact cocaine and that the 60 hand grenades constituted an "explosive substance" within the meaning of section 2 of the Criminal Code of Canada.
36The second transaction involving Mr. Spaulding (Counts 13, 14, 25, 31, 32, 43 and 54) occurred on January 29, 2021.
37The Police Agent and UCO 2 had arranged to purchase a grenade launcher and a number of firearms and other related items from Mr. Sutherland.1
38Again, it was understood that they would be dealing directly with Mr. Sutherland and no one else.
39However, on that day, Mr. Sutherland messaged Mr. Spaulding asking if he would be able to do him a favour. Mr. Spaulding agreed and met Mr. Sutherland at a carpool lot around 1:30 pm.
40Mr. Sutherland said he had dispensary supplies which he did not want to drive around with. He asked Mr. Spaulding to take the supplies with him and meet him at the cannabis shop later that day. Mr. Spaulding again agreed.
41At the carpool lot, Mr. Sutherland's and Mr. Spaulding's vehicle were parked next to each other. Mr. Sutherland carried a cardboard box and a black canvas bag from his vehicle to the trunk of Mr. Spaulding’s white VW. Mr. Spaulding then removed a black box from Mr. Sutherland’s vehicle and placed it in the trunk of the white VW.
42Mr. Spaulding drove home and left his white Volkswagen in his driveway. He did not check the contents of his trunk.
43Mr. Spaulding was asked by Mr. Sutherland to meet him at the cannabis shop that afternoon. He drove there around 4:30, parked next to Mr. Sutherland’s vehicle and entered the shop where he met Mr. Sutherland and Mr. Sutherland’s sister.
44In the meantime, the Police Agent was in a vehicle driven by UCO 3. They were accompanied by UCO 2 who was in a separate vehicle. They drove to the cannabis shop as directed by Mr. Sutherland and also parked there.
45Mr. Spaulding and Mr. Sutherland exited the shop a few minutes later and met with the Police Agent.
46Following some small talk. Mr. Sutherland directed Mr. Spaulding to open his trunk. The Police Agent provided money, $84,000, which was placed in Mr. Spaulding's trunk.
47The Police Agent then moved a black plastic box and a brown cardboard box and a black rifle bag from Mr. Spaulding’s trunk to UCO 3’s vehicle. He removed a number of firearms from the boxes and began sorting them.
48Some of these were left in UCO 3’s vehicle. Others were placed in UCO 2’s vehicle.
49As per the Agreed Statement of Facts there is no issue that the following firearms, prohibited devices and ammunition were seized in relation to this matter by the Ontario Provincial Police on 29 January 2021:
(1) A Ruger 9E 9mm handgun with serial #337-40092. This firearm was tested by DC Fayiz Ahamad of the Ontario Provincial Police and found to be a "Restricted Firearm" within the meaning of s. 84 of the Criminal Code;
(2) Two spring loaded detachable magazine cartridge boxes capable of holding more than (10) rounds of 9 mm centre-fire ammunition. Accordingly, these magazines are "Prohibited Devices" within the meaning of s. 84 of the Criminal Code;
(3) A Rock Island Armoury model M1911A1 FS 45 Auto semi-automatic handgun with serial #RIA 1565540. This firearm was tested by DC Charles Garcia of the Ontario Provincial Police and found to be a "Restricted Firearm" within the meaning of s. 84 of the Criminal Code;
(4) A Bersa Thunder 380 CC semi-automatic handgun with a removed serial number. This firearm was tested by DC Charles Garcia of the Ontario Provincial Police and found to be a "Prohibited Firearm" within the meaning of s. 84 of the Criminal Code;
(5) A Glock model 37 .45 calibre GAP fully automatic handgun with serial #GAE568. This firearm was tested by DC Charles Garcia of the Ontario Provincial Police and found to be a "Prohibited Firearm" within the meaning of s. 84 of the Criminal Code due to the addition of a Glock after-market fully automatic switch;
(6) Thirty rounds of .45 calibre GAP centre-fire ammunition. One round of this ammunition was test-fired by DC Charles Garcia of the Ontario Provincial Police and found to function properly and therefore meet the definition of "ammunition" within the meaning of s. 84 of the Criminal Code;
(7) A green TNW ASR 9 mm rifle with a sawed off barrel and a removed serial number. This firearm was tested by DC Fayiz Ahamad of the Ontario Provincial Police and found to be a "Prohibited Firearm" within the meaning of s. 84 of the Criminal Code;
(8) A black detachable spring loaded Glock style magazine capable of holding more than (10) rounds of 9 mm centre-fire ammunition. Accordingly, this magazine is a "Prohibited Device" within the meaning of s. 84 of the Criminal Code;
(9) A Masterpiece Arms model MPA 15SST Commercial Version .45 auto semi automatic rifle with serial #A6160. This firearm was tested by DC Charles Garcia of the Ontario Provincial Police and found to be a "Prohibited Firearm" within the meaning of s. 84 of the Criminal Code;
(10) A SPW GL .45 auto (30) round detachable box cartridge magazine. This magazine is capable of holding more than 5 cartridges of .45 auto centre-fire ammunition and is therefore a "Prohibited Device" within the meaning of s. 84 of the Criminal Code;
(11) A Ruger P89 9 mm handgun with serial #313-77385. This firearm was tested by DC Fayiz Ahamad of the Ontario Provincial Police and found to be a "Restricted Firearm" within the meaning of s. 84 of the Criminal Code;
(12) A stainless steel spring loaded detachable magazine box capable of holding (15) 9 mm cartridges. Accordingly, this magazine is a "Prohibited Device" within the meaning of s. 84 of the Criminal Code;
(13) A Ruger P95 9 mm handgun with serial #318-16327. This firearm was tested by DC Fayiz Ahamad of the Ontario Provincial Police and found to be a "Prohibited Firearm" within the meaning of s. 84 of the Criminal Code;
(14) A stainless steel spring loaded detachable magazine box capable of holding (15) 9 mm cartridges. Accordingly, this magazine is a "Prohibited Device" within the meaning of s. 84 of the Criminal Code;
(15) A Ruger P90 .45 calibre pistol with serial #661-99327. This firearm was tested by DC Fayiz Ahamad of the Ontario Provincial Police and found to be a "Restricted Firearm" within the meaning of s. 84 of the Criminal Code;
(16) A Glock model 17L 9 mm Luger semi-automatic handgun with serial #ED004US. This firearm was tested by DC Charles Garcia of the Ontario Provincial Police and found to be a "Restricted Firearm" within the meaning of s. 84 of the Criminal Code;
(17) A 33-RDS 9 mm {31) round detachable box cartridge magazine. This magazine is capable of holding more than 10 cartridges of 9 mm Luger centre-fire ammunition and is therefore a "Prohibited Device" within the meaning of s. 84 of the Criminal Code; and
(18) A Strachan Defence BA-37 37 mm single shot grenade launcher with a removed serial number together with (3) projectile grenades. This grenade launcher was tested by DC Pete Reintjes of the Ontario Provincial Police and found to be a "Prohibited Device" within the meaning of s. 84 of the Criminal Code.
50It was also agreed that at all relevant times, Mr. Spaulding did not have a licence to possess or acquire firearms in Canada.
51The third and final transaction involving Mr. Spaulding ((Count 68) occurred on February 2, 2021.
52The Police Agent arranged to purchase 1 kg. of cocaine from Mr. Sutherland. Mr. Sutherland told the Police Agent to go to the cannabis shop and the Police Agent and an Under-Cover Officer went there. Mr. Sutherland was not present however and it was Mr. Spaulding who met them and gave them a bag containing 1.154 kg of cocaine. In return the Police Agent gave Mr. Spaulding a shaving bag containing $56,000.
53Again, as per the Agreed Statement of Facts there is no issue that the alleged cocaine was in fact cocaine.
54Mr. Spaulding agrees that all of these events occurred.
55He also agrees that he had the necessary mens rea with respect to the two charges of trafficking in cocaine.
THE ISSUE IN THIS CASE AND THE BURDEN OF PROOF
56The only issue before me is whether Mr. Spaulding had the necessary mens rea with respect to the remaining charges. Did he know that he was trafficking in grenades and firearms?
57In that regard, Mr. Spaulding testified that he had no idea that he was delivering any firearms or grenades to anyone.
58Accordingly, the principles in R. v. W (D)2 are applicable.
59If I believe Mr. Spaulding’s evidence, I must find him not guilty.
60Even if his evidence leaves me with a reasonable doubt regarding any essential element of the alleged offence, I must find him not guilty. So, if the evidence leaves me with a reasonable doubt that Mr. Spaulding knew that he was delivering firearms or grenades, I must acquit him.
61Finally, even if his evidence does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must acquit.
62In determining this, I must keep in mind that Mr. Spaulding, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities".3
63This is a tough standard, and it is so tough for very good reason. As Cory J said in R. v Lifchus:
The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted.4
CIRCUMSTANTIAL EVIDENCE
64Much of the evidence in this case was circumstantial.
65Crown counsel has asked me to draw a number of inferences based on this evidence.
66The Supreme Court of Canada stated in R. v. Griffin that:
The essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty.5
67Counsel for Mr. Spaulding drew my attention to two decisions where guns were involved.
68In R. v. Taylor, the Ontario Court of Appeal stated that:
The Crown's case against Blair and Taylor was entirely circumstantial. In these circumstances, the trial judge was obliged to consider the possibility that they knew of and participated only in the smuggling of the alcohol, and not the smuggling or presence of the firearms. She was required to be satisfied beyond a reasonable doubt that the only reasonable conclusion available on the whole of the evidence was that Blair and Taylor knew or were willfully blind about the firearms. As the Supreme Court confirmed in R. v. Charemski, 1998 819 (SCC), [1998] 1 S.C.R. 679, at paras. 3 and 4, even where the Crown's case rests entirely on circumstantial evidence, "[t]he Crown must adduce some evidence of [the accused's] culpability for every essential definitional element of the crime for which the Crown has the evidential burden" (emphasis in original).6
69I note that in the present case Crown counsel expressly stated that they were not arguing willful blindness or recklessness.
70Code J. of the Superior Court of Justice stated in R. v. Humphrey, that:
147 In order to satisfy the Crown's burden of proof beyond reasonable doubt in a circumstantial case, it is often said that the inference of guilt must be the only reasonable inference from the primary facts. In the present case, this means that the Crown cannot succeed unless the only reasonable inference from the facts is that the accused knew that one or more of the guns was present in his car.
148 The first step in a circumstantial case is to determine what primary facts have been proved. The second step is to determine what rational non-speculative inferences flow from the primary facts.7
71Finally, I note the comments of Doherty J.A. in R. v. Morrissey, that:
A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation.8
CREDIBILITY AND RELIABILITY
72The case against Mr. Spaulding depended largely upon my assessment of his evidence and that of the Crown witnesses.
73In that regard I note the differences between credibility and reliability. Credibility relates to a witness's sincerity, whether he is speaking the truth as he believes it to be. Reliability relates to the actual accuracy of his testimony. In determining this, I must consider his ability to accurately observe, recall and recount the events in issue. A credible witness may give unreliable evidence9. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt.10
74Finlayson J.A. stated in R. v. Stewart that:
I am not satisfied, however, that a positive finding of credibility on the part of the complainant is sufficient to support a conviction in a case of this nature where there is significant evidence which contradicts the complainant's allegations. We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they are adults or children, may convince themselves that inaccurate versions of a given event are correct and they can be very persuasive. The issue, however, is not the sincerity of the witness but the reliability of the witness's testimony. Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record.11
75At this point I will say that while my decision with respect to the credibility of the witnesses is based, in part, on their demeanour while testifying, I am well aware that a finding of credibility should never be based on demeanour alone, especially where there are significant inconsistencies and conflicting evidence on the record.12 The credibility and reliability of a witness must be "tested in the light of all the other evidence presented"13.
76I also stress that while I am satisfied that I may rely on the demeanour of the witnesses as a factor in assessing their credibility, I consider it to be of very little, if any, assistance in assessing the reliability of their evidence.
77In assessing the credibility and the reliability of Mr. Spaulding and the other witnesses I have considered all of the following factors.
INCONSISTENCIES
78Crown counsel pointed out alleged inconsistencies in Mr. Spalding’s evidence.
79Counsel for Mr. Spaulding pointed out alleged inconsistencies in the evidence of certain Crown witnesses.
80In assessing the credibility of a witness, it is appropriate to examine the inconsistencies between what the witness said and what other witnesses said.14 Inconsistencies on minor matters or matters of detail are normal and do not generally affect the credibility of a witness. But one or more inconsistencies involving material matters can justify concluding that the witness is neither credible nor reliable. In determining this, it is necessary to look to the totality of the inconsistencies.15
81Crown counsel pretty much argued that any inconsistencies on the part of the Crown witnesses fell into the first category while the inconsistencies on the part of Mr. Spaulding fell into the latter one. Counsel for Mr. Spaulding argued the exact opposite. I was satisfied that many of the inconsistencies on the part of all of the witnesses fell into the first category.
82I will say more below about any inconsistencies which impacted on my assessment of the reliability and credibility of any particular witness.
MOTIVE TO FABRICATE
83Counsel for Mr. Spaulding argued that the Police Agent had a motive to fabricate evidence against Mr. Spaulding. He was being paid a great deal of money for his involvement in this case.
84Crown counsel argued that he had no motive to fabricate the allegations against Mr. Spaulding or anyone else. He will be paid the same amount regardless of the outcome of this trial.
85The absence of any motive to fabricate an allegation is a proper matter for consideration in the course of the fact-finding process.16 It is, however, only one of the factors to be considered by me. I cannot simply conclude that because there is no apparent reason for a witness to lie, the witness must be telling the truth. Rather, I must assess the credibility and reliability of the witness’ evidence in the light of all of the other evidence17. Nor can I automatically equate a lack of evidence of motive to fabricate to the proved absence of motive to fabricate.18
86In this case I was not satisfied that the Police Agent had a motive to fabricate. On the other hand, in light of the law as set out in the preceding paragraph, I was not satisfied that he did not.
87Mr. Spaulding certainly had a motive to fabricate in that he did not want to be convicted of these offences.
88The Ontario Court of Appeal has made it clear that an accused’s interest in being acquitted may be considered as one factor when weighing his testimony. However, it is impermissible to assume that he will lie to secure his acquittal. This flies in the face of the presumption of innocence and creates an almost insurmountable disadvantage for the accused.19
89Arbour J.A went on to write:
The accused is obviously interested in being acquitted. In order to achieve that result he may have to testify to answer the case put forward by the prosecution. However, it cannot be assumed that the accused must lie in order to be acquitted, unless his guilt is no longer an open question. If the trial judge comes to the conclusion that the accused did not tell the truth in his evidence, the accused's interest in securing his acquittal may be the most plausible explanation for the lie. The explanation for a lie, however, cannot be turned into an assumption that one will occur.20
PRIOR CRIMINAL RECORD
90Counsel for Mr. Spaulding stressed the fact that the Police Agent had a criminal record.
91The Supreme Court of Canada and the Ontario Court of Appeal have stated that:
The fact that a witness has been convicted of a crime is relevant to his trustworthiness as a witness. Obviously, convictions for offences involving dishonesty or false statements have a greater bearing on the question whether a witness is or is not likely to be truthful, than convictions for offences such as dangerous driving or assault. The probative value of prior convictions with respect to the personal trustworthiness of the witness also varies according to the number of prior convictions and their proximity or remoteness to the time when the witness gives evidence. A jury might well be justified in concluding that a conviction, even for a serious offence committed many years before, was of little if any value in relation to the credibility of a witness if he had since that time lived an honest life.21
92The Police Agent has been convicted of a number of offences involving dishonesty.
93His record began in Youth Court where between 2000 and 2002 he was found guilty of 4 thefts, one fraud, two break and enters, one possession of drugs, and three breaches of court orders. The longest sentence was 8 months secure custody.
94As an adult, he was convicted between 2004 and 2013 of 5 thefts, two robberies, one disguise with intent, 5 break and enters, 5 breaches of court orders, one obstruct police, one mischief, one extortion, one escape custody, and one trafficking in stolen property.
95The most recent conviction occurred in December 2013. It was for robbery and drew the longest sentence imposed on him, imprisonment for 5 years, over and above 10 months of pre-sentence custody.
96Counsel for Mr. Spaulding went further arguing that I should instruct myself in accordance with R. v. Vetrovec.22
97Crown counsel and I both agreed with this.
98While his criminal record ends in 2013, the Police Agent made it clear that he continued to live a criminal lifestyle right up until the time that he signed on with Project Weaver. It was this criminal lifestyle that made it possible for him to do business with the likes of Mr. Sutherland.
99Accordingly, while I may act on his unconfirmed evidence, I note that it is dangerous to do so and that I should look for other independent evidence to confirm the material parts of the Police Agent’s evidence.
100Clearly, Project Weaver was set up with these issues in mind. The Police Agent was never alone with any of the suspects during the investigation. He was always accompanied by an Under-Cover Officer. Further, the Police Agent and the Under-Cover Officers wore bodypacks designed to record any conversations with these suspects. Certain transactions were videorecorded as well.
101I also note that very little if any of the Police Agent’s evidence is controversial here. He and Mr. Spaulding were in agreement with respect to much of what they both had to say. To that extent, Mr. Spaulding corroborated much of what the Police Agent said. That of course works both ways, and it is equally valid to say that the Police Agent corroborated much of what Mr. Spaulding said in court.
102So, what aspects of the Police Agent’s evidence did counsel for Mr. Spaulding take issue with?
103Counsel for Mr. Spaulding made much of the Police Agent saying that Mr. Sutherland told him that Mr. Spaulding was his right-hand man. However, at the time that the Police Agent gave this evidence, a discussion took place between both counsel and myself wherein everyone agreed that this was hearsay and not evidence that Mr. Spaulding was actually Mr. Sutherland’s right-hand man.
104Counsel argued that there was no evidence that Mr. Sutherland had in fact said this to the Police Agent. The statement was false and I should hold that false statement against the Police Agent in assessing his credibility. I note however that there is no evidence that Mr. Sutherland did not say this. So, I have no evidentiary basis for a finding that the Police Agent lied about this.
105I will also have more to say shortly about other comments made by the Police Agent which clearly suggest that neither Mr. Sutherland nor the Police Agent considered Mr. Spaulding to be Mr. Sutherland’s right-hand man.
106In addition, counsel argued that the Police Agent was clearly wrong when he described Mr. Spaulding as “keeping six” or acting as a look-out during the January 29, 2021 transaction.
107I disagree. After watching the video, I believed that Mr. Spaulding might or might not have been acting as a look-out. The Police Agent was only providing his interpretation of what he saw, which may or may not have been correct. That however does not impact his overall credibility.
108In any event, I am not certain how much I should read into Mr. Spaulding “keeping six” at that time. I will say more about this later during my discussion of the events of January 29.
109Finally, counsel questioned the evidence from the Police Agent as to the initial visibility of firearms during the January 29 transaction. Again, I will say more about this below during my discussion of those events.
110Counsel for Mr. Spaulding also questioned the credibility and reliability of UCO 2. I will address this shortly during my discussion of the events of December 17, 2020.
111Before I get to those events however, I will address two arguments made by Crown Counsel about Mr. Spaulding in general. These are as follows.
MR. SPAULDING WAS PREPARED TO COMMIT ILLEGAL ACTS IN RETURN FOR MONEY
112Crown counsel argued that I should consider the fact that Mr. Spaulding was prepared to engage in various levels of illegal activity in return for financial gain.
113He worked at the clothing store “The Link” for less than minimum wage while being paid “under the table”.
114He left there to work in Mr. Sutherland’s cannabis shop where he made a little more money but was still paid “under the table”. Although he and others described the cannabis business as being in a legal grey zone, he acknowledged that the business was illegal.
115He then began delivering cocaine to customers of Mr. Sutherland. He was paid extra for this. He recognized that this was serious criminal activity with serious legal consequences if he was caught, but he did this because he needed the money to support his family.
116Crown counsel argued that I should reject Mr. Spaulding’s testimony that he would deliver cocaine, but not guns. She stated in her written submissions at paragraph 16 that:
He gave no reasoned or principled explanation for why he would make such a distinction – because there wasn’t one. Instead, his actions on 17 Dec 2020, 29 January 2021 and 2 Feb 2021 are consistent only with his willingness to engage in whatever serious criminal activity Sean Sutherland is willing to pay him for.
117I disagree with that statement.
118To suggest that there can be no reasoned or principled explanation for distinguishing between delivering cocaine and delivering guns is clearly wrong.
119Anyone could easily draw a distinction between the morality of trafficking in cocaine and the morality of trafficking in firearms or grenades.
120In addition, the legal consequences if one is caught trafficking in firearms or grenades is likely greater than for trafficking in cocaine.
121Finally, there are also financial issues.
122The Police Agent demanded and received more money from the Ontario Provincial Police after grenades were added to the mix.
123Mr. Spaulding testified that he was paid his usual $150 fee for delivering the cocaine on December 17, 2020. He received nothing over and above his usual salary for the events of January 29, 2021. He was not challenged on this let alone shaken on cross-examination.
124There was no evidence that Mr. Spaulding received additional payments as a result of his involvement with what turned out to be firearms and grenades.
125I also note that I must be very careful not to treat any of this as evidence of propensity on the part of Mr. Spaulding23.
MR. SPAULDING WAS MR. SUTHERLAND’S TRUSTED AGENT
126Crown counsel correctly pointed out that the Ontario Court of Appeal has repeatedly stated that where an accused is alleged to be in possession of an illicit item of significant value, it may be open to the trier of fact to infer that such a valuable quantity of drugs or weapons or other illicit item(s) would not be entrusted to anyone who did not know the nature of the contents of the package.24 :
127Counsel for Mr. Spaulding argued that it is a prerequisite to the application of the “trusted agent” line of reasoning that the person delivering the items in question be a completely “blind” courier with no knowledge that they are engaged in any wrongdoing whatsoever.
128I disagree with that sweeping statement.
129However, I also disagree with Crown counsel’s argument that I must infer that, based on the facts of this case, Mr. Spaulding must have known that he was delivering weapons rather than cocaine or cannabis products.
130I am satisfied that there is ample evidence that Mr. Spaulding was trusted by Mr. Sutherland.
131He was entrusted on numerous occasions with valuable drugs and with very large sums of money.
132I assume that Mr. Sutherland trusted him not to turn on Mr. Sutherland if he was caught by police in possession of large quantities of cocaine. Mr. Spaulding could have had a strong motive to cooperate with police if he was staring in the face of a long jail sentence.
133On December 17, 2020, Mr. Sutherland entrusted him with the case containing the grenades and on January 29, 2021 he entrusted him with the bags containing the firearms.
134I note however that he did not involve Mr. Spaulding in any of the preliminary negotiations with the Police Agent and the Under-Cover Officers.
135He did not involve Mr. Spaulding at all in the first three transactions with them.
136He only involved Mr. Spaulding in the December 17 transaction at the last minute. Up until then, the Police Agent expected to be dealing with Mr. Sutherland again.
137I heard no evidence as to why Mr. Sutherland would have made this last-minute change of plans and involved Mr. Spaulding in this particular transaction.
138I also note other evidence which suggests that Mr. Sutherland may not have seen Mr. Spaulding to be anything other than a reliable delivery boy.
139Even prior to Project Weaver he never introduced Mr. Spaulding to the Police Agent by name. He referred to him as “the blonde kid”.
140Mr. Sutherland never spoke to the Police Agent about Mr. Spaulding during Project Weaver.
141On December 17, Mr. Sutherland messaged the Police Agent that he was sending “his driver” in his place. They should look for the blonde kid in the blue Ford Fusion.
142Even as of January 29, the Police Agent knew Mr. Spaulding as “Homeboy”.
143The police Agent testified that he himself had called Mr. Spaulding “a lackey”, somebody who does someone else’s dirty work.
144These are strange ways to refer to a “right hand man” or a “trusted agent”. It is more consistent with how one might refer to a “lackey” or a “delivery boy”.
145So, while I accept that Mr. Sutherland trusted Mr. Spaulding, I do question just how far that trust went.
146Crown counsel also argued that the fact that the cargo was grenades makes this case different from the firearms and drug cases because it is not only the value of the grenades that creates a reasonable inference that they would not have been entrusted to Mr. Spaulding’s care if he had not known what they were. It is the dangerous and explosive nature of the grenades themselves.
147If Mr. Spaulding did not know the true nature of his cargo, he could unknowingly engage in unsafe handling practices that might result in the grenades exploding.
148I asked Crown counsel to address certain concerns that I had about this argument.
149I fear I failed to make clear my particular concern.
150I fully understood that grenades are explosives and as such they can explode.
151I was however concerned about the absence of any evidence as to what actions could cause them to explode.
152Is it like in the movies where the pin is pulled out and the handle released as the grenade is thrown or is it possible to detonate one or more grenades simply by dropping the case on the ground?
153There is no evidence before me that the latter scenario is even possible. There is also no evidence regarding the first scenario.
154Crown counsel also argued that there was no evidence that Mr. Spaulding was ever instructed not to handle the case.
155I agree but note that there was no evidence to the contrary either. Nobody asked him either question.
156Further, the evidence was clear that he did not handle the case either when it was being placed in his vehicle or when it was being removed. This is in contrast with the fact that he personally handed over the bag containing the cocaine.
157I find that the trusted agent principle has more traction with respect to the January 29 transaction. Mr. Sutherland allowed Mr. Spaulding to see that they were trafficking firearms. He was clearly trusting Mr. Spaulding to not turn him in.
158However, I again note that Mr. Spaulding was not involved in any of the discussions leading up to this transaction either.
159Similarly, whatever arrangement the parties agreed to, did not call for him to be involved at all.
160Again, I heard no evidence as to why Mr. Sutherland may have changed his plans and involved Mr. Spaulding.
161I will now examine the evidence relating to the specific transactions.
THE TRANSACTION OF 17 DECEMBER 2020
162UCO 2 testified that, during this transaction, he asked Mr. Spaulding “where’s my grenades” and Mr. Spaulding gestured towards the rear of his vehicle where the grenades were in fact located.
163If I accept this evidence, the case is for all intents and purposes, over.
164This evidence would establish that Mr. Spaulding knew that he was delivering grenades.
165There is however a serious problem with the evidence of UCO 2.
166As I pointed out earlier, steps had been taken to provide corroboration for most of the things that the Police Agent did in this case. This included equipping the Under-Cover Officers and the Police Agent with body packs that would record everything that was said in their presence.
167The problem from the Crown’s perspective is that the statement “where’s my grenades” does not turn up on the audio recording on UCO 2’s body pack.
168UCO 2 suggested during his testimony that the statement occurred where the transcript reads “unintelligible”
169The problem with this explanation is that a comparison with the audio record from the Police Agent’s body pack reveals something else being said at that point.
170This body pack also did not contain a recording of UCO 2 asking about grenades.
171The Police Agent and UCO 1 both testified. Neither mentioned hearing UCO 2 refer to grenades.
172Mr. Spaulding testified but did not mention hearing any reference to grenades coming from anyone.
173Counsel for Mr. Spaulding suggested that UCO 2 was lying.
174I do not accept that.
175UCO 2 made a reference to this statement in his notes a few hours later. At that point he would not know what had been successfully recorded and what had not. Had he been lying, he should have anticipated that this would be revealed once anyone listened to the recording.
176Further, he was a very experienced officer who should have been more concerned about maintaining a reputation for truthfulness than about nailing down this one point with respect to Mr. Spaulding. I point out here that he had no idea who Mr. Spaulding was at that time. Mr. Sutherland was the target of the investigation.
177So, I do not accept that UCO 2 was lying.
178I am however satisfied that he very well might have been mistaken.
179Crown counsel argued that it is possible that his words simply were not picked up by either body pack. I am not prepared to give credence to that suggestion in the absence of evidence as to how viable it might be.
180I am mindful of the admonition from The Ontario Court of Appeal that I should “avoid speculative reasoning that invokes "common-sense" assumptions that are not grounded in the evidence or appropriately supported by judicial notice”.25
181Crown counsel argued that at one point on the body pack evidence, the Police Agent says to UCO 2 “Uh pop the trunk sixty of ‘em in that trunk buddy”
182They argued that there was no other reason for the Police Agent to say “sixty of em in that trunk buddy” unless UCO 2 asked about his grenades. In turn, Mr. Spaulding responded by cocking his head back towards the trunk of the car where the grenades were.
183I see three problems with this suggestion.
184Firstly, if the Police Agent had in fact heard these important words spoken, why did he not testify to that? I am satisfied that he did not testify to this because he did not hear those words spoken.
185Two, I find it incredible that the three words that might have made the Crown’s case simply were not picked up on any of the three body packs present at the time and were not heard by either the Police Agent or the other Under-Cover Officer who was there.
186Finally, if the words were not picked up on any of the three body packs present at the time and were not heard by either the Police Agent or the other Under-Cover Officer who was there, why would I assume that Mr. Spaulding had heard them?
187That then leaves the question as to whether I am satisfied that the other evidence proves beyond a reasonable doubt that Mr. Spaulding knew that he was trafficking in grenades.
188This requires me to look closely at the evidence of Mr. Spaulding.
189Crown counsel argued that Mr. Spaulding’s claim that he believed the black case in his trunk contained a shipment of shatter and that he had no reason to think it was anything else was patently incredible, for a number of reasons.
190Firstly, there was no evidence that any shatter shipment had ever before been picked up like this in a random, vacant lot in a residential neighbourhood and no reason was given as to why the delivery would happen like that.
191However, there was no evidence to the contrary. Nobody asked Mr. Spaulding about this. I am not going to presume what he might have said had he been asked. Neither am I going to infer anything as a result of his failure to explain something that he was not asked about.
192Secondly, there was no reason to conceal the shatter shipment. The police were clearly not targeting such transactions at the time.
193I note however that Mr. Spaulding testified upon Re-examination that if the police stumbled upon a transaction involving so much shatter, they would seize it. They would also seize the money.
194There is also the fact that this transaction involved .5 kg. of cocaine and the evidence was clear that the police were certainly enforcing the law with respect to that
195Thirdly, Crown counsel made much of the fact that Mr. Spaulding “testified that he saw two men put a “black looking suitcase” in his trunk. Not a box, or a bin. A suitcase – luggage.”
196That is not however how Mr. Spaulding described the case when he was talking to the Police Agent. On the body pack recording he can be heard saying “it’s a big fucking box in the back”.
197That was how he viewed it in the heat of the moment.
198He only described it as “a black suitcase” when he was testifying in court about something that had been described by other witnesses and shown in a photograph to be a black case or suitcase. I do not read much into the fact that Mr. Spaulding adopted this language in his testimony.
199Crown counsel argued that there was no reason for Mr. Spaulding to be nervous about the big box in the back if he truly believed that it contained dispensary supplies.
200This ignores his explanation that the case was big and might draw unwanted attention at a time when such attention might lead to the discovery of the large amount of money and the cocaine. I am satisfied that this combination provided a powerful reason to be nervous and to want to get out of there.
201The Police Agent testified that even without the grenades there was plenty to be nervous about here.
202I am considering the fact that two men put the case in his car and that two men lifted it out.
203While I can infer that the case might have been too heavy for one man, I am not certain that I can infer that it definitely was too heavy for a single person to lift.
204Mr. Spaulding conceded that one man should be able to carry a 20 to 25 pound suitcase by himself.
205He also testified that the two people handling the case could be a result of the case being awkward.
206Crown counsel made much of Mr. Spaulding suggesting that the box contained twenty pounds of shatter.
207Counsel for Mr. Spaulding argued that Mr. Spaulding did not fully commit to the weight of the box being twenty pounds. Rather, he made a rough calculation or estimate of about how much shatter he believed might be in the case only after the fact. By then he knew how much money was being paid. With this knowledge, he settled on “twenty plus pounds” or “around twenty pounds”. Prior to receiving the money, he did not know how much shatter would be in the box.
208I also note that Mr. Spaulding testified that he was not even thinking about that at the time. All that he was thinking about was that he was trafficking .5 kg. of cocaine and was holding cash totaling $141,000 in a public place.
209Crown counsel argued that the accused’s credibility is further undermined by his claim that he never knew the amounts of money he was supposed to be receiving from customers.
210Actually, his evidence to that effect is corroborated by the other evidence in this case that made it clear that on the occasions where he received money Mr. Spaulding never counted the money that he received. One would certainly expect him to do that if he was concerned with receiving a specific amount.
211I note that throughout the above arguments Crown counsel was parsing everything into small bits rather than looking at the whole picture. I cannot do this. I must look at all of the evidence as a whole before I can determine what inferences I can draw from these facts.
THE TRANSACTION OF 29 JANUARY 2021
212Crown counsel argued that there are a number of aspects of Mr. Spaulding ’s evidence regarding this transaction that should raise questions in my mind.
213According to Mr. Spaulding, it was his day off. Why did he need to get involved at all? Mr. Sutherland could have just as easily dropped the dispensary supplies directly at the cannabis shop. Alternatively, Mr. Spaulding could have taken them there himself rather than tie himself up for more of the day.
214Counsel for Mr. Spaulding pointed out that Mr. Spaulding testified that Mr. Sutherland messaged him to ask if he would be able to do Mr. Sutherland a favour and that Mr. Spaulding agreed to do that.
215I note that Mr. Spaulding was relying on Mr. Sutherland for his only income at the time. I also accept that it would not be unusual for an employee to “agree” to give up part of a day off when asked by their employer to do so as a favour.
216Mr. Spaulding also testified that was scared of Mr. Sutherland because he had seen him beat someone up. Mr. Sutherland knew where Mr. Spaulding and his family lived, and Mr. Spaulding knew that Mr. Sutherland associated with serious people.
217Another questionable act was that in approaching the meeting place with Mr. Sutherland, Mr. Spaulding engaged in what could well be considered to be a counter-surveillance maneuver.
218Just prior to getting to the car-pool lot, he turned and went up a street about 100 to 200 metres before stopping on the side of that road. He then made a U-turn and headed back the way he had just come from. The surveillance officer described Mr. Spaulding as being “nose to nose” with the officer as a result.
219Why would Mr. Spaulding do this if he were simply picking up dispensary supplies?
220Crown counsel argued that in determining the weight to be given to Mr. Spaulding’s evidence in relation to the events on 29 January 2021, I must consider the manner in which the evidence was adduced. He never provided an account of what happened from his recollection. Instead, counsel played an excerpt of the video and then asked Mr. Spaulding for his comments on it. As a result, there is no evidence that he had any reliable independent recollection of the events.
221I might have given more credence to this argument except that Mr. Spaulding had already seen the video a number of times and heard the other witnesses testify at some length about the events. Any question of Mr. Spaulding’s independent recollection was already in play before he took the stand.
222Further, the issue here in my mind is his credibility not his ability to recall.
223Crown counsel argued that Mr. Spaulding’s actions when he arrived at the cannabis shop were inconsistent with his supposed purpose in going there.
224He testified that he believed when he got to the shop, they were going to unload the dispensary supplies from his trunk and take them into the shop.
225However, when he arrived at the dispensary, he parked beside Mr. Sutherland’s vehicle. He then went inside without taking any of the supplies with him.
226As I stated earlier, Mr. Spaulding’s actions in the parking lot were at times consistent with someone who was “keeping six” or looking out. I qualify that statement by saying that I cannot be certain that he was doing that.
227Mr. Spaulding testified that he was not ‘keeping six”.
228More significantly, I cannot be certain as to what exactly was motivating Mr. Spaulding if indeed he was doing this.
229Once Mr. Spaulding saw that the Police Agent was there along with two other people (he testified that he did not recognize UCO 2 from the December 17 transaction), he should have at the least suspected that something was happening.
230If that “something” was anything like what happened between Mr. Spaulding and the Police Agent on December 17, it would be something that was very illegal.
231He would not however necessarily conclude that that this would involve firearms.
232In any event, under those circumstances it would have been quite understandable for Mr. Spaulding to look around in an effort to see if anyone might be watching them.
233Crown counsel argued that Mr. Spaulding’s words and behaviour, belie his claim that he was shocked and scared.
234No one invited him over to the vehicle to participate further in the transaction. He took it upon himself to attend close up to the back of the vehicle where he would have had a clear view of the firearms.
235No one attempted to engage him in conversation but he chose to comment about one of the guns.
236Crown counsel further argued that Mr. Spaulding could have left at any time. It was his day off. He had an easy excuse to leave as soon as he could. He did not do that. In fact when he finally walked away from the others, rather than leaving the area completely, he went to chat with Bhaven Gill elsewhere in the parking lot and then went into the shop.
237While Crown counsel argued that Mr. Spaulding’s words and actions clearly belied his claim that he was extremely nervous at that time, counsel for Mr. Spaulding argued the opposite. Frankly, I cannot say with any certainty which view is correct.
238It is uncontested that Mr. Spaulding himself put a big box that turned out to contain firearms into his trunk.
239Crown counsel argued that there is no direct evidence this box or the firearms within it were covered or concealed in any way such that he would not have been able to see them.
240However, there was no direct evidence that they were not covered.
241At one point, the Police Agent seemed to suggest that as soon as the trunk of Mr. Spaulding’s car was opened, the Police Agent could see firearms inside of a box.
242Crown counsel argued that this evidence was uncontested and constituted direct evidence that Mr. Spaulding would also have seen the firearms when he placed the box in his trunk.
243That is inaccurate.
244The Police Agent was cross examined extensively on his evidence as to the items he saw, and removed from, Mr. Spaulding’s trunk.
245He was cross-examined on the question of the order in which items were removed from Mr. Spaulding’s trunk.
246His evidence on all of this was far from clear following that cross-examination.
247Counsel for Mr. Spaulding correctly pointed out that this evidence was given by a Vetrovec witness and was not corroborated by anyone else.
248Mr. Spaulding testified that he was not aware of any firearms prior to Mr. Sutherland popping the trunk of Mr. Spaulding ’s vehicle
249I was not satisfied that the Crown had established that Mr. Spaulding must have seen the firearms prior to his trunk being opened in the cannabis shop parking lot.
250As I noted earlier, I find that the trusted agent principle is a factor to be considered in my assessment of this transaction. Mr. Sutherland allowed Mr. Spaulding to see that they were trafficking firearms. He clearly trusted Mr. Spaulding to not turn him in.
251Finally, counsel for Mr. Spaulding argued that Mr. Spaulding would not have left his vehicle parked right outside his house had he known that it contained numerous firearms and a grenade launcher.
EVENTS FOLLOWING THE WEAPONS TRANSACTIONS
252Mr. Spaulding did not walk away from the scene of the firearms transaction, but he never again was involved in another weapons transaction.
253On February 2, 2021 he completed the second cocaine transaction with the Police Agent.
254On February 4, 2021, the Police Agent purchased six firearms from Mr. Sutherland for $43,750. Mr. Spaulding was not involved in this.
255One week after January 29, Mr. Spaulding took steps to terminate his relationship with Mr. Sutherland.
256On February 5, 2021, Mr. Spaulding told Mr. Sutherland that he wanted to quit, and return the dispensary products stored in his home and the money he still had from the February 2 cocaine transaction.
257He completed some dispensary deliveries that day and became concerned he was being followed. He drove around his neighborhood to confirm he was not being followed but decided to use the possibility as a further reason to quit the dispensary.
258He packed the dispensary supplies and money into his vehicle.
259Mr. Sutherland came to the area of Mr. Spaulding’s subdivision and told Mr. Spaulding that it looked like he was in fact being followed. Mr. Spaulding was alarmed and drove away from his subdivision at speed.
260Mr. Spaulding dropped off the money and dispensary supplies as directed.
261Mr. Spaulding’s account of February 5, 2021 was corroborated by the evidence of the surveillance officers watching him that day.
262Mr. Spaulding did no further work for Mr. Sutherland following that day.
263On February 10, 2021, the Police Agent purchased five firearms from Mr. Sutherland for $34,000. Again, Mr. Spaulding was not involved in any way.
THE RULE IN BROWNE v. DUNN
264Counsel for Mr. Spaulding argued that Crown counsel violated the Rule in Browne v. Dunn.26
265I disagree.
ANALYSIS AND CONCLUSION
266The only issues before me are whether Mr. Spaulding knew that he was trafficking in grenades on December 17, 2020 or that he was trafficking in firearms on January 29, 2021.
267I have set out above, in paragraphs 45 through 263, all of the factors that I took into account in determining whether I was satisfied that the Crown had proven these things beyond a reasonable doubt.
268As I stated earlier, I was not satisfied that there was any reliable direct evidence with respect to either transaction.
269With respect to the other factors, some of them supported the Crown position that I might draw the inference that Mr. Spaulding knew that he was trafficking something other than cannabis shop products.
270On the other hand, some of them supported the exact opposite conclusion.
271Finally, there were factors that could lead me to go either way.
272After considering all of these factors in their entirety, I was satisfied that Mr. Spaulding might well have known that he was trafficking in something more serious than cannabis products.
273I was not however satisfied beyond a reasonable doubt that he did have that knowledge.
274I was certainly not satisfied beyond a reasonable doubt that the only rational inference that I could draw, based on the evidence before me, was that he knew that he was trafficking in firearms or grenades.
275I note again that Crown counsel expressly stated in their submissions that they were not arguing that willful blindness or recklessness were applicable in this case.
276Accordingly, I find him not guilty of counts 10, 13, 14, 25, 31, 32, 43 and 54.
277I did find him guilty of the two counts of trafficking in cocaine being counts 11 and 68.
278That then leaves me with the need to provide my reasons for dismissing the Charter application. Those reasons are as follows.
THE SECTION 11(b) CHARTER APPLICATION
279Mr. Spaulding’s right to a trial within a reasonable time is guaranteed by section 11(b) of the Canadian Charter of Rights and Freedoms.
280The Supreme Court modernized the framework for dealing with unreasonable delay in its seminal decision, R v Jordan.27
281There, the court established a ceiling for delay of 18 months for provincial court matters. Ultimately, if the total delay from the date the Information was sworn to the actual or anticipated end of the trial, minus any defence delay, exceeds the ceiling, then the delay is presumptively unreasonable.
282To rebut the presumption, the Crown must establish that exceptional circumstances exist barring which the delay is unreasonable and the matter is stayed.
283Conversely, if the total delay, minus the defence delay or any period attributable to exceptional circumstances falls below the presumptive ceiling, the onus falls to the applicant to establish that the delay is nevertheless unreasonable. Such cases, however, will rarely result in a stay of proceedings.
284The Ontario Court of Appeal in R v Coulter, set out the steps that are to be taken in applying the Jordan framework:
(1) calculate the total delay, which is the period from the laying of the charge to the actual or anticipated end of trial – that is, the end of evidence and argument;
(2) subtract defence delay, including delay that is waived, from the total delay, which results in the “Net Delay”;
(3) compare the Net Delay to the presumptive ceiling;
(4) if the Net Delay exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances, otherwise a stay will follow. Exceptional circumstances fall under two categories: discrete events and particularly complex cases;
(5) subtract delay caused by discrete events from the Net Delay leaving the “Remaining Delay”;
(6) if the Remaining Delay exceeds the presumptive ceiling, the Court must consider whether the case was particularly complex, such that the time the case has taken is justified and the delay is reasonable; and
(7) if the Remaining Delay falls below the presumptive ceiling, the onus is on the applicant to show that the delay is unreasonable.28
285Where, after deducting defence caused delay, the total delay still exceeds the Jordan ceiling, it falls to the Crown to show that the delay is reasonable due to the presence of exceptional circumstances.
286These circumstances “lie outside the Crown’s control” in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) the Crown cannot reasonably remedy the delays emanating from those circumstances once they arise.29
287To rely upon exceptional circumstances, the Crown must show that it took reasonable steps to avoid and address the problem where possible – in particular, it took these steps before the total delay exceeded the ceiling. Reasonable steps can include accessing case management processes, streamlining evidence or trial issues with the assistance of the defence, coordinating pre-trial applications or resorting to any other procedural means.30
288The Supreme Court’s comments in R. v. Jordan, supra respecting discrete exceptional events are crucial to my analysis:
The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625). Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events).31
289Crown counsel argued that we should not even embark upon this process. Rather I should summarily dismiss the application on the basis that Mr. Spaulding and his counsel did not comply with the Rules of the Ontario Court of Justice.
290Those Rules required that such an Application be heard at least 60 days prior to the first day of trial.
291That was not done here.
292In fact Counsel for Mr. Spaulding stated at the Judicial Pre-trial on 23 Feb 2022 that there would be no Charter applications.
293Then, on 24 August 2022, in response to my question, counsel repeated that there were no Charter applications.
294The first indication that this application would be brought came only a short time before the trial was to resume with its third day of evidence.
295Crown counsel argued that this was a calculated move made deliberately by counsel for Mr. Spaulding.
296I do not agree with that.
297I am not however satisfied with counsel’s explanation of his reasons for changing his mind and bringing the Application after all. He should have complied with the Rules and he has not provided satisfactory reasons as to why it would be in the interests of justice to grant an order permitting the Application to be brought despite the absence of compliance.
298However, in my light of my following Reasons for dismissing the Application, it is unnecessary for me to decide whether I could or should summarily dismiss the Application and I will not do so.
299Instead, I will go through the process set out by the Court of Appeal.
300Mr. Spaulding was charged on March 9, 2021.
301I heard final submissions on January 11, 2023.
302The total delay is therefore 674 days.
303Counsel for Mr. Spaulding concedes that 41 days can be attributed to defence delay
304That leaves a net delay of 633 days.
305That exceeds the presumptive ceiling by 86 days.
306Crown counsel argued that I should attribute more days to defence delay on the basis that had this application been brought in a timely manner, any earlier dates that had come available since date-setting could have been canvassed thereby reducing the delay. Unfortunately, as even Crown counsel conceded, this is hypothetical. We cannot know with any certainty what might have happened had the Rules been complied with.
307I am however satisfied that the Crown has established that the Covid 19 pandemic qualifies as an exceptional circumstance in this case.
308I note the comments of the Local Administrative Justice here in London, Carnegie J. who stated in R. v. Gregory that:
This case and the ability of counsel to move the case forward and set dates was impacted by the Covid 19 pandemic. In the present pandemic context, it is not realistic or rationale to simply place court unavailability into the category of unjustifiable institutional delay. I adopt the reasoning from R. v. Simmons, where back in 2020, in the early months of the pandemic, Nakatsuru J stated: “Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensued. A lack of resources was not the cause. Rather, COVID-19 was. It has had a system- wide impact of unprecedented proportions, never seen before in our lifetime.” (R v. Simmons 2020 ONSC 7209 at para. 70) As such, there is now a glut of authority recognizing the pandemic as a discrete event. An emerging subset of this COVID 19 discrete event authority includes an acknowledgement that setting dates for substantive proceedings now takes longer due to the COVID 19 created backlog. As was acknowledged by Wright J in R v Ajgirevitch, the ripple effect of the COVID 19 related backlog continues to slow down the administration of justice. (R. v. Ajgirevitch, 2022 ONCJ 237 at para. 45)32
309Counsel for Mr. Spaulding advanced the same arguments here as were argued before Wright J. in R. v. Ajgirevitch:
44 The Applicant submits that the pandemic did not affect this case - that the setting of the trial dates occurred after both Court closures, and the scheduled trial dates come after almost full reopening.
45 I disagree. The Applicant's submission would have COVID-19 treated like a single event impacting a single discrete case or day of Court. It is not a single closure of the Courts or a specific lost day. It is an exceptional circumstance that continues to ripple through the Courts.33
310I am of the same mind as Wright J.
311I also agree with his comments in R. v. G.S. where he stated that:
Courts are understandably struggling with an evidentiary absence tied to the difficulty in assessing the specific differences in delay caused by the rescheduling of so many matters. But having found that the pandemic is an exceptional circumstance which had an impact on this specific case, in my view it would be an absurd result to then fail to deduct any periods of time on the basis that the Crown has not proven the impact to some level of statistical accuracy.34
312In both cases he decided that it was appropriate to deduct 90 days as a realistic estimate of the impact of COVID-19 on the scheduling of trials.
313I have done the same here.
314That leaves a remaining delay that falls below the presumptive ceiling by 4 days.
315Alternatively, I was satisfied that this case was sufficiently complex to justify a delay that exceeded the presumptive ceiling by 86 days.
316Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified.35
317Counsel for Mr. Spaulding argued that by the start of this trial, this case was not complicated at all.
318I must however consider the complexity of the case “as a whole” and examine the entirety of the prosecution.
319Mr. Spaulding was one of 14 persons charged on 9 March 2021 at the conclusion of Project Weaver.
320The Crown was required to disclose to counsel for Mr. Spaulding everything that that the Police Agent had done as part of the project, whether those things involved Mr. Spaulding or not.
321This included all of the Police Agent’s debriefing statements, notes, bodypack recordings and bodypack transcripts for each of the incidents that Mr. Spaulding and his then co-accused Mr. Sutherland were alleged to be involved in, as well as the Under-Cover Officers’ debriefing statements. There were also video recordings.
322The Agreed Statement of Facts eliminated the need for any expert witnesses to testify with respect to the firearms and explosives and drugs or to prove continuity of the numerous exhibits but up until that agreement there were a significant number of experts needed.
323Disclosure in this case was extensive and voluminous.
324Up until the first day of trial, Mr. Spaulding still faced 109 charges against him alone.
325All of these factors fall into the hallmarks of complex cases enumerated in R. v. Jordan.36
326Fortunately for us, Crown counsel and counsel for Mr. Spaulding between them came to agreements that reduced the impact of these complications.
327For all those reasons, I was satisfied that this case was sufficiently complex to justify a delay that exceeded the presumptive ceiling by 86 days.
328In summary, I would have dismissed the application on either basis.
Released: April 25, 2023
Signed: Justice David A. Harris
Footnotes
- For the purpose of simplicity, I will hereafter refer to these items collectively as firearms or guns.
- R. v. W. (D), 1991 93 (SCC), [1991] S.C.J. No. 26 (S.C.C.).
- R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 (S.C.C.) at para. 242.
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- R. v. Slatter, supra at para 59.
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- R. v. Czibulka, 2004 22985 (ON CA), [2004] O.J. No. 3723 (Ont. C.A.) per Rosenberg J.A. at para. 44; R. v. L.L., supra at para 44; R. v. O.M., supra at para 107.
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- R. v. B. (L.), supra, at para. 7.
- R. v. Brown (1978), 1978 2396 (ON CA), 38 C.C.C. (2d) 339 (Ont. C.A.) per Martin J.A., at p. 342 quoted in R. v. Corbett, R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670 at para. 113.
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- R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at paras. 31 to 36.
- See R. v. Amare, 2014 ONSC 4119, [2014] O.J. No. 5225 (Ont. S.C.J.) per Hill J at para. 110 and following, affirmed 2015 ONCA 673; R. v. Bains, 2015 ONCA 677, [2015] O.J. No. 5191 (Ont. C.A.) at para 157; R. v. Buchanan, (2020), 2020 ONCA 245, 150 O.R. (3d) 209 (Ont. C.A.) at para 61; R. v. Zamora, [2021] O.J. No. 2885 (Ont. C.A.) at para 35.
- R. v. J.C., 2021 ONCA 131, [2021] O.J. No. 1048 (Ont.C.A.) per Paciocco J.A. at para. 58.
- Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.).
- R v Jordan, 2016 SCC 27
- R v Coulter, 2016 ONCA 704 at paras 34-41
- R. v. Jordan, supra, at para 51
- Ibid, at paras 69-71; R. v. Cody, supra, at paras 44-46, 48, 54
- R. v. Jordan, supra, at para. 75.
- R v. Gregory, an unreported decision of Carnegie J of the O.C.J. at London November 14, 2022 at para 43
- R. v. Ajgirevitch, 2022 ONCJ 237 per Wright J. at paras. 44 and 45.
- R. v. G.S., [2022] O.J. No. 4198 (Ont. C.J.) per Wright J at para. 62. See also: R. v. Balasubramaniam, [2023] OJ No 218 (Ont. C.J.) per Downes J.; R. v. Ivarone, [2023] O.J. No. 778 (Ont. C.J.) per Leitch J.
- R. v. Jordan, supra, at para. 77.
- Ibid.