Court of Appeal for Ontario

Date: 2019-07-15

Docket: C63230 & C65107

Judges: Watt, Tulloch and Lauwers JJ.A.

Between

C63230

Her Majesty the Queen Respondent

and

Randy McGean Appellant

AND BETWEEN

C65107

Her Majesty the Queen Respondent

and

Isaac Lucas Appellant

Counsel

Erec Rolfe, for the appellant Randy McGean in C63230

Brian Snell, for the appellant Isaac Lucas in C65107

James Clark, for the respondent in C63230 and C65107

Heard

June 25, 2019

Appeal Information

On appeal from the convictions entered on September 6, 2016, with reasons reported at 2016 ONSC 5572, and the sentences imposed on October 12, 2016 in C63230, and January 13, 2017 in C65107, by Justice Joseph R. Henderson of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

A. Overview

[1] The appellants, Randy McGean and Isaac Lucas, were charged and convicted of conspiracy to traffic heroin and conspiracy to traffic cocaine, among other related drugs and weapons charges. Mr. McGean received a sentence of 11 years on the conviction for conspiracy to traffic heroin, eight years concurrent on the conviction of conspiracy to traffic cocaine, and three months consecutive for each of the two breach of weapons prohibition order counts, followed by other concurrent sentences for the remaining convictions, for a global sentence of 11 years and six months. Mr. Lucas was sentenced to nine years on the conspiracy to traffic heroin, and seven years concurrent on the conspiracy to traffic cocaine, together with a victim surcharge for both.

[2] Both appellants appeal their conspiracy convictions. Mr. McGean appeals his conviction for conspiracy to traffic cocaine, but does not dispute the conviction for conspiracy to traffic heroin. Mr. Lucas challenges his conviction for the conspiracy to traffic heroin, but he does not dispute the fact that he was involved in the trafficking of both heroin and cocaine, nor does he dispute his conviction for conspiracy to traffic cocaine. Both appellants argue that the trial judge misapprehended the evidence, thus rendering the verdicts unreasonable.

[3] In addition to the conviction appeals, both appellants seek leave to appeal their respective sentences on the basis that the sentences were unreasonable.

B. Analysis

[4] We see no merit in either the conviction or sentence appeals.

(1) Mr. McGean's Conviction Appeal

[5] Mr. McGean submits that the trial judge misapprehended the evidence and, as a result, concluded that he was a member of the conspiracy to traffic cocaine.

[6] In R. v. Carter, [1982] 1 S.C.R. 938, at p. 947, the Supreme Court established a three-stage test for the co-conspirators exception to the hearsay rule. First, the trier of fact must find beyond a reasonable doubt on all the evidence that the conspiracy exists. Second, the trier of fact must find that the evidence that is directly admissible against the accused, which excludes hearsay statements by co-conspirators, proves, on a balance of probabilities, that the accused was a member of that conspiracy. Only if these first two stages are met can the trier of fact, at the third stage, consider the acts and declarations of a co-conspirator in furtherance of the conspiracy as evidence against the accused on the issue of the accused's guilt. Mr. McGean does not challenge the trial judge's finding that a conspiracy existed at stage one.

[7] Mr. McGean argues that the trial judge erred at stages two and three of his analysis of the co-conspirators exception to the hearsay rule. At stage two the trial judge misapprehended the evidence of a phone call between the appellant and Mr. Lucas, which was the only conversation involving Mr. McGean in the "Barrie deal," one of the two cocaine conspiracies. At stage three, Mr. McGean argues that the trial judge misapprehended the evidence with respect to the two cocaine conspiracies, and that the evidence did not support the trial judge's finding that he played a pivotal role in both transactions.

[8] We reject Mr. McGean's argument on stage two of the Carter test.

[9] In a call following the Barrie deal in which Mr. McGean and Mr. Lucas were discussing a recent purchase of cocaine, Mr. Lucas stated that he was loyal to Mr. McGean. Mr. McGean stated "yeah yeah" in response. The trial judge found, at para. 134 of his reasons, that Mr. McGean had acknowledged Mr. Lucas' pledge of loyalty and thus accepted that Mr. McGean was a member of the conspiracy.

[10] Contrary to Mr. McGean's argument, it was open to the trial judge to find that Mr. McGean had acknowledged Mr. Lucas' comments by stating "yeah yeah" as the pledge of loyalty was made in the context of a discussion about the quality of cocaine from the Barrie deal.

[11] Furthermore, this call was not the sole basis of the trial judge's conclusion that Mr. McGean was a member of the conspiracy in relation to the Barrie deal. At para. 136 of his reasons, the trial judge also found that the agreement between Mr. McGean and Mr. Lucas pursuant to which Mr. Lucas would act as Mr. McGean's enforcer formed part of the conspiracy in relation to the Barrie deal. This was not an unreasonable finding.

[12] Mr. McGean's argument that the second stage of the Carter test was not met fails.

[13] We also reject Mr. McGean's argument on stage three of the Carter test.

[14] The focus of stage three of the Carter test is a determination of the ultimate issue of guilt: Carter, at pp. 944, 947. At this stage, the statements of the co-conspirators are admissible against the accused provided that those statements were "made in furtherance of the conspiracy": Carter, at p. 947; R. v. Bogiatzis, 2010 ONCA 902, 285 C.C.C. (3d) 437, at para. 35, quoting R. v. Chang (2003), 173 C.C.C. (3d) 397 (Ont. C.A.), at para. 120. Statements by co-conspirators that are not made in furtherance of the conspiracy are inadmissible against the accused: Chang, at paras. 120-121. If the "in furtherance" requirement is met, the statements of the co-conspirators are admissible against the accused. The trier of fact must then determine in step three whether these statements, taken together with all the other admissible evidence, are sufficient to prove beyond a reasonable doubt that the accused was a member of the conspiracy: Carter, at p. 947.

[15] The trial judge found, at para. 157 of his reasons, that the statements of Mr. McGean's co-conspirators were admissible against Mr. McGean and conducted his stage three Carter analysis on this basis. Mr. McGean does not challenge this admissibility finding in his stage three submissions. Nor does Mr. McGean submit that the "in furtherance" requirement under stage three that concerns admissibility was not met. Instead, the focus of Mr. McGean's stage three submissions is that the trial judge misapprehended the evidence in determining the ultimate issue of guilt.

[16] The Crown alleged three broad conspiracies involving the appellants and several others. Two conspiracies involved the purchase of a kilogram of cocaine. The third involved the purchase of a kilogram of heroin. The evidence consisted of police surveillance and intercepted private communications. The defence called no evidence.

[17] A significant amount of evidence adduced at trial demonstrated that Mr. McGean was a member of the conspiracy to traffic cocaine. The trial judge found that Mr. McGean was an instrumental part of the conspiracy to traffic cocaine. The trial judge found that Mr. McGean made the final decisions regarding what to purchase, the price to pay, and how and when to receive and distribute the product. In our view, this finding was supported by the evidence. He relied on this evidence to conclude that the Crown had proved Mr. McGean's guilt beyond a reasonable doubt. When considered in totality, the evidence painted a clear picture of Mr. McGean at the top of an ongoing conspiracy to purchase and distribute cocaine. Thus we see no reason to interfere with the trial judge's findings on the ultimate issue of guilt.

(2) Mr. Lucas' Conviction Appeal

[18] Mr. Lucas submits that the trial judge rendered an unreasonable verdict on the conspiracy to traffic in heroin because the evidence was only consistent with him being a low-level dealer. There was no evidence to show that he entered into any agreement to purchase a large amount of heroin or that the small amounts of heroin he sold came from the September 24, 2013 purchase that formed the basis of the conspiracy that the trial judge found to exist. Furthermore, Mr. Lucas contends that the trial judge framed the scope of the conspiracy in an overly broad manner by including the distribution of heroin as part of the conspiracy.

[19] We disagree.

[20] It is settled law that there is no requirement that all members of a conspiracy play an equal role: R. v. J.F., 2013 SCC 12, [2013] 1 S.C.R. 565, at para. 54; R. v. Root, 2008 ONCA 869, 241 C.C.C. (3d) 125, leave to appeal refused, [2009] S.C.C.A. No. 282, at para. 68. Furthermore, it was open to the trial judge to infer Mr. Lucas' membership in the heroin conspiracy from his own actions. As the Supreme Court held in J.F., at para. 52, "where a person, with knowledge of a conspiracy…, does…something for the purpose of furthering the unlawful object, with the knowledge and consent of one or more of the existing conspirators, this provides powerful circumstantial evidence from which membership in the conspiracy can be inferred."

[21] In this case, the trial judge reasonably inferred Mr. Lucas' membership in the heroin conspiracy from his role as an enforcer for Mr. McGean. The trial judge found that the agreement between Mr. Lucas and Mr. McGean, pursuant to which Mr. Lucas would act as Mr. McGean's enforcer, extended to the heroin conspiracy: at paras. 143, 161. The trial judge was thus entitled to infer that Mr. Lucas was a member of the heroin conspiracy because he knew of the heroin conspiracy and acted as an enforcer for the purpose of furthering its unlawful object with the consent of one of the principal conspirators, namely Mr. McGean.

[22] Moreover, there was additional evidence supporting the trial judge's conclusion that Mr. Lucas' role was more than that of a low-level dealer. As the trial judge found at para. 124 of his reasons, on September 29, 2013, Mr. Lucas asked Mr. McGean for permission about what to do with the heroin in his possession and who he should give it to. Mr. McGean told him to give it to another conspirator, Mr. Hook. Mr. Lucas then called Mr. Hook and asked him how he should prepare the product. Mr. Hook told him to break it down using vitamin C. We agree with the Crown that these comments suggested a joint venture and that Mr. Lucas was a member of a broader agreement to distribute.

[23] Furthermore, the evidence that the trial judge considered did link the heroin in Mr. Lucas' possession to the September 24, 2013 purchase. As the trial judge found at para. 121 of his reasons, on the day before the purchase, Mr. Lucas and Mr. Hook had discussed the need to break down the heroin they planned to purchase with vitamin C and vinegar. Only six days later, Mr. McGean directed Mr. Lucas to speak to Mr. Hook about the heroin in Mr. Lucas' possession. Mr. Hook then instructed Mr. Lucas on the same method of breaking down the heroin that Mr. Hook and Mr. McGean had previously discussed. This was compelling evidence linking Mr. Lucas to the agreement to purchase heroin on September 24, 2013.

[24] Finally, we reject the argument that the trial judge framed the conspiracy overly broadly by including distribution as part of the conspiracy. As the Crown submits, trafficking includes distribution and distribution was central to the trafficking charge. The definition of "traffic" contained in s. 2(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 makes this clear.

(3) Sentence Appeals

[25] We also dismiss both sentence appeals.

(a) Mr. McGean's Sentence Appeal

[26] There is no basis to interfere with the sentence that Mr. McGean received.

[27] Mr. McGean's first argument is that the trial judge erred in finding that the amount of heroin trafficked was one kilogram. He submits that there were other reasonable inferences from the circumstantial evidence and that the trial judge's finding that the quantum was one kilogram thus violated the principles governing inferences from circumstantial evidence set out in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000.

[28] We reject this argument.

[29] As Villaroman states, at para. 56, it remains for the trier of fact to determine whether a proposed alternative inference is reasonable enough to raise a doubt. The trier of fact is entitled to reject a proposed alternative inference that is based on speculation, not logic and experience: Villaroman, at para. 37.

[30] In this case, the trial judge reasonably rested his finding on quantum on the evidence that the $80,000 to $90,000 pricing that Mr. McGean and Mr. Hook discussed in their conversation a day before the purchase fit with the price for one kilogram of heroin: at para. 122. While the appellant submits that the pricing figure could relate to the value of the sales that the quantity being discussed was worth, the trial judge was entitled to reject this proposed alternative inference as speculative. The appellant also relies on Mr. Hook's statement to him that they could return "17 of them" if the quality is poor and asserts that this was inconsistent with the quantum of heroin being one kilogram. As the defence called no evidence, neither Mr. Hook nor Mr. McGean provided any explanation for what this reference to "17 of them" could mean. The reference to "17 of them" could reasonably be understood as a reference to returning a portion of the heroin if the quality was poor, which is not inconsistent with a one kilogram quantum. Accordingly, the trial judge was entitled to conclude that this proposed alternative inference did not raise a reasonable doubt.

[31] Mr. McGean's second argument is that his sentence should be reduced if this court set aside his cocaine conspiracy conviction. Our dismissal of the conviction appeal renders this argument moot. In the result, the sentence appeal is dismissed except that the victim surcharge imposed by the trial judge is set aside.

(b) Mr. Lucas' Sentence Appeal

[32] Similarly, we would not interfere with the sentence that Mr. Lucas received. Mr. Lucas' first argument is dependent on this court overturning the heroin conspiracy conviction. We have declined to interfere with the heroin conspiracy conviction. This ground of appeal thus fails.

[33] Mr. Lucas' second argument is that the sentence was excessive because his involvement in the heroin conspiracy was at a low level. We reject this argument. The trial judge expressly recognized that Mr. Lucas' role in the conspiracies was not as significant as Mr. McGean's. He specifically stated that Mr. Lucas' involvement in the heroin conspiracy was that of a "lower level distributor." As a result, the trial judge imposed a sentence on Mr. Lucas that was two years and six months lower than the sentence Mr. McGean received. The trial judge detailed several aggravating factors that justified a sentence above the low end of the sentencing range. He emphasized that Mr. Lucas had a lengthy criminal record, trafficked multiple hard drugs in large quantities, and his drug offences were commercial operations that required planning and deliberation. There is no basis for this court to reweigh those factors or to interfere with the trial judge's exercise of discretion.

C. Disposition

[34] Accordingly, the conviction appeals are dismissed. Leave to appeal sentence is granted to both Mr. McGean and Mr. Lucas, but the sentence appeals are also dismissed. The victim surcharges ordered by the trial judge are set aside for both.

David Watt J.A.

M. Tulloch J.A.

P. Lauwers J.A.