CITATION: R. v. Drecic, 2011 ONCA 118
DATE: 20110210
DOCKET: C51254
COURT OF APPEAL FOR ONTARIO
Moldaver, Cronk and Lang JJ.A.
BETWEEN
Her Majesty The Queen
Respondent
and
Zavisa Drecic
Appellant
P. Andras Schreck, for the appellant
Croft Michaelson, for the respondent
Heard and released orally: February 1, 2011
On appeal from conviction entered by Justice John McMahon of the Superior Court of Justice, dated October 8, 2009.
ENDORSEMENT
[1] On September 22, 2009, the appellant was arraigned before McMahon J. of the Superior Court of Justice on an indictment charging him with trafficking in cocaine in association with a criminal organization, trafficking in GHB, and trafficking in cocaine. He pleaded not guilty to the criminal organization charge and guilty to the other counts.
[2] On October 8, 2009 the appellant was found guilty on the criminal organization count. That count was tried by McMahon J., sitting without a jury. The trial was conducted on the basis of a statement of facts. No viva voce evidence was called. The appellant appeals from his conviction on that count.
[3] In our view, this appeal is largely fact driven. It does not raise any novel or unsettled points of law. In particular, the existing jurisprudence from this and other courts establishes that the “in association with” requirement of s. 476.12(1) of the Code will be made out so long as there is a connection or link between the underlying offence and the criminal organization in question. Contrary to the position put forward by the appellant, the criminal organization does not have to be “directly involved” in the underlying offence or play a “direct and integral role in it”. The appellant fairly concedes that the following observation made by Justice Nordheimer in R. v. Bodenstein (unreported July 13, 2010 (ON. S.C.)) is an accurate statement of the law:
In other words, if membership in the organization is part of the reason why the offence is undertaken or if membership in the organization assists in the commission of the offence, then it can be fairly concluded the offence was undertaken in association with the organization.
[4] Here, the evidence supports the trial judge’s conclusion that the appellant trafficked drugs in association with the Hells Angels. The appellant and Mr. Atwell were full patch members of the Hells Angels. The appellant assisted Atwell in the purchase of large quantities of drugs on several occasions. Unbeknownst to the appellant, Atwell was acting as a police agent at all material times.
[5] The trial judge found that the drugs purchased by Atwell were for further distribution and trafficking for profit. He further found that the appellant was the middle man who facilitated Atwell in obtaining these drugs from his [the appellant’s] reliable source. The evidence supports those findings.
[6] The trial judge next considered the nature of the relationship between Atwell, the appellant and the appellant’s drug supplier, who was not himself a member of the Hells Angels. In this regard, he found that the appellant, as a full patch member, introduced Atwell to his supplier. According to the trial judge, because of the appellant’s position as a Hells Angels member, he was able to warrant to his supplier that Atwell, who was also a Hells Angel, was reliable. Likewise, he was able to warrant to Atwell that his supplier was reliable. In other words, membership in the Hells Angels was the catalyst that brought the parties together and it played an integral role in the ensuing drug transactions. As the trial judge found:
Rules of the club ensure that when members deal with each other or third parties there will be no rip offs. All of these benefits were at play in the various drug transactions conducted by Mr. Drecic.
[7] In our view, the findings upon which the trial judge concluded that the requisite link had been made out were reasonable inferences available to him on the evidence. We see no basis for interfering with them.
[8] Finally, no issue can be taken with the trial judge’s finding that the Hells Angels Motorcycle Club is a criminal organization. The evidence in that regard is overwhelming.
[9] Accordingly we would dismiss the appeal from conviction.
Signed: “M. J. Moldaver J.A.”
“E. A. Cronk J.A.”
“S. E. Lang J.A.”