Court File and Parties

Court of Appeal for Ontario Date: 2023-05-08 Docket: C68110

Tulloch, Benotto and Trotter JJ.A.

Between: His Majesty the King, Respondent and Stephen Tello, Appellant

Counsel: Anil Kapoor and Cameron Cotton-O’Brien, for the appellant Jennifer Conroy and Amber Pashuk, for the respondent

Heard: November 28-29, 2022

On appeal from the conviction entered on December 13, 2017 by Justice Kenneth L. Campbell of the Superior Court of Justice, sitting with a jury, and from the sentence imposed on April 20, 2018 by Justice Kenneth L. Campbell, with reasons reported at 2018 ONSC 2259.

Trotter J.A.:

Overview

[1] As a result of an RCMP investigation into large-scale drug importing, the appellant was charged with the following offences: (1) conspiracy to import at least 1,000 kilograms of cocaine (Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”), s. 6(1) and Criminal Code, R.S.C. 1985, c. C-46, s. 465(1)(c)); (2) trafficking in cocaine (CDSA, s. 5(1)); (3) possession of the proceeds of crime (Criminal Code, s. 354(1)); and (4) trafficking in cocaine (CDSA, s. 5(1)).

[2] A jury found the appellant guilty of all offences. He was subsequently sentenced to 15 years’ imprisonment. The appellant appealed his convictions and sentence. At the hearing, his appeals were dismissed with reasons to follow. These are those reasons.

Factual Background

Introduction

[3] In 2013, the RCMP commenced an investigation called “Project Harrington” which was focused on the importation of cocaine into Canada through Nova Scotia. An undercover officer, who throughout these proceeding was known as UCO Joe, infiltrated a target group, posing as someone who was able to provide transportation (i.e., a boat) for importing drugs.

[4] The investigation and the trial were principally focused on a conspiracy involving the appellant to import at least 1,000 kilograms of cocaine from South America (Count 1 on the Indictment). In the course of email exchanges and in-person meetings between those involved in the conspiracy, the appellant twice played a role in trafficking cocaine (Counts 2-4).

The Principal Players

[5] The investigation was initially focused on two individuals – Gary Meister and John Meshkati. In March 2014, UCO Joe was introduced to Mr. Meister through a police agent. Mr. Meister gave UCO Joe a BlackBerry with PGP (“Pretty Good Privacy”) encryption software through which thousands of messages were routed through an offshore server. In August 2014, Mr. Meshkati was murdered, but the investigation continued.

[6] In October 2014, the appellant contacted UCO Joe via a PGP message. The appellant and UCO Joe would go on to discuss the importation of cocaine from South America. Over the course of the next four months, UCO Joe was introduced to Mathew Fleming and Michael Dibben, who were also charged as co-conspirators. As discussed below when dealing with the sentence appeal, Mr. Fleming and Mr. Dibben pleaded guilty.

Initial Contact Between the Appellant and UCO Joe

[7] As indicated above, the appellant first contacted UCO Joe on October 20, 2014, using the handle “101lock”. It is apparent from this exchange that the appellant thought he was contacting Mr. Meister, or the “old man”, as UCO Joe called him. UCO Joe explained that he was Mr. Meister’s “partner” who had “TP”, which meant transportation. The appellant asked whether UCO Joe could help him transport cocaine via sea cans from Venezuela.

[8] On November 13, 2014, UCO Joe received a message from a different handle – “xms.480”. The author of messages from this handle confirmed that he was “lock” and referred to Mr. Meister as the “old guy”.

[9] The identification of the appellant as “101lock” and “xms.480” was contested at trial. The Crown on appeal has correctly submitted that there was overwhelming evidence that the appellant was the user of these two handles. This is reflected in the jury’s verdicts. The appellant’s grounds of appeal do not directly focus on this issue, other than in the context of the sentence appeal, where he submits that the trial judge erred in finding that the appellant was the author of all messages sent from these two handles.

The Investigation Unfolds

[10] After their initial introduction, UCO Joe and the appellant exchanged many messages over the next four months. They met in person four times to discuss a plan to import thousands of kilograms of cocaine using a research vessel that was to be supplied by UCO Joe. This came to be known as the “Research Vessel Project”. The two men discussed various other illegal plans or projects such as the “Coal Project”, the “Trucking Project”, the “900-mile Project”, and the “Diver Project”. These plans were not the focus of UCO Joe’s investigation and never came to fruition.

The December 10, 2014 Meeting – Toronto

[11] UCO Joe and the appellant agreed to meet in person at a bar in Toronto. The appellant arrived and introduced himself as “Steve.” The appellant wanted to take UCO Joe to meet another person, “Mega”, who the defence alleged was the actual author of the PGP messages, and for whom the appellant acted as a screen. UCO Joe refused to go because it was not part of the undercover scenario.

[12] UCO Joe and the appellant discussed several plans to import cocaine, for which UCO Joe could provide transportation. UCO Joe suggested using a sailboat to transfer the cocaine to Newfoundland. He told the appellant that his price or cut would be 25%. No deal was reached at this meeting.

[13] A few days before this meeting, the appellant asked UCO Joe if he had clients in Toronto, because he needed to sell two kilograms of cocaine, at $47,000 each. At the in-person meeting, UCO Joe raised the issue with the appellant. Arrangements were made to purchase one kilogram the next day. On December 11, 2014, another undercover officer posing as UCO Joe’s runner went to a hotel and bought one kilogram of cocaine for what was supposed to be $47,000; mistakenly, only $46,000 was delivered. PGP messages about the shortfall were exchanged with the appellant. At a subsequent meeting in Montreal (discussed below), UCO Joe apologized to the appellant and gave him $1,000.

[14] In the meantime, there were numerous PGP messages between the appellant and UCO Joe about the Research Vessel Project. They debated whether the boat would be going to Venezuela, Antigua, or the Margarita Islands. The appellant indicated that his people were ready to start the project, but needed to meet with UCO Joe. The two agreed to meet on January 8, 2015, in Montreal.

The January 8, 2015 Meeting - Montreal

[15] UCO Joe met with the appellant and Matthew Fleming at a restaurant in Montreal. The appellant told Mr. Fleming about the Research Vessel Project. Mr. Fleming said he had 30,000 units of cocaine in the Margarita Islands and wanted to put 15,000 units on UCO Joe’s boat to be brought to Canada. The three discussed the logistical details and the price of carrying out Mr. Fleming’s plan. UCO Joe testified that during this conversation, the appellant was “very much involved” and had “sidebar” conversations with Mr. Fleming which UCO Joe could not hear. Mr. Fleming and the appellant told each other that they would discuss matters afterwards.

[16] Later that evening, UCO Joe met with Mr. Fleming without the appellant. UCO Joe testified that he and Mr. Fleming had some general conversation, including a discussion about the price and the amount of cocaine to be imported. During this conversation, Mr. Fleming referred to the appellant and said, “everybody needs a fall guy.”

[17] After this meeting, the appellant and UCO Joe exchanged PGP messages about a $250,000 deposit required from the appellant to pursue the Research Vessel Project. The appellant made reference to his partners wanting to be “kept in the loop.”

[18] On January 20, 2015, UCO Joe traveled to the Bahamas with Mr. Fleming to meet with the suppliers of the cocaine, who UCO Joe believed were from Guyana. The appellant did not go on this trip. UCO Joe and Mr. Fleming discussed the logistics of the operation. A representative of the suppliers said that they would be providing cocaine at a price of $4,500 per kilogram. Subsequently, Mr. Fleming told UCO Joe he was supplying the $250,000 deposit and that the appellant was “investing” $2 million.

[19] After the meeting in the Bahamas, UCO Joe and the appellant (through PGP messages) continued to discuss other plans to import cocaine and agreed to meet again.

The February 11, 2015 Meeting – Toronto

[20] UCO Joe and the appellant met at a Toronto hotel. Two other individuals were also present. This meeting was recorded pursuant to a judicial authorization. UCO Joe and the appellant discussed the Research Vessel Project and the deposit that UCO Joe required. Mr. Fleming arrived later, along with a man named “Cody”. Mr. Fleming suggested involving Michael Dibben, also known as “Meta”, with the Research Vessel Project. The appellant subsequently left the hotel to meet his brother.

[21] UCO Joe, Mr. Fleming, and “Cody” then went to a restaurant to meet with Michael Dibben, who said he had 1,500 kilograms of cocaine in Guyana that he wished to move. They discussed moving that cocaine to Antigua with a view to importing it into Canada on UCO Joe’s research vessel. The appellant rejoined the group later that evening to further discuss the Research Vessel Project.

[22] In the days following this meeting, messages were exchanged about arranging UCO Joe’s deposit with Mr. Fleming and the appellant. Mr. Fleming asked UCO Joe if he would accept the deposit in “product” (i.e., cocaine). The appellant became involved in this conversation and facilitated the exchange of two kilograms of cocaine, valued at $51,000 each. On February 17, 2015, an undercover officer went to a hotel to pick up the product.

[23] Later that day, Mr. Fleming contacted UCO Joe to say that all boat dealings were cancelled, and he wanted his deposit back. Apparently, people had become suspicious that UCO Joe was an undercover officer. The appellant assured UCO Joe that he thought the matter could be smoothed over. The following day it appeared that the project was afoot again.

The February 26, 2015 Meeting – Toronto

[24] UCO Joe and the appellant met in Toronto. This meeting was also recorded pursuant to a judicial authorization. UCO Joe confirmed that the transportation for the Research Vessel Project was still good to go, but the appellant indicated that the “numbers” were not going to be exactly what they had anticipated. UCO Joe inquired about the rest of his deposit, and the appellant indicated that he would speak to Mr. Fleming about that.

The End of the Project

[25] Over the ensuing weeks, the Research Vessel Project fell apart. Apparently, the suppliers decided that they would not go ahead with it. Mr. Fleming and the appellant indicated they would try to salvage the project.

[26] UCO Joe arranged another meeting for March 13, 2015. Mr. Fleming showed up; the appellant did not, expressing a concern about surveillance in a PGP message. UCO Joe and the appellant never communicated again.

[27] UCO Joe continued to be in contact with Mr. Dibben and Mr. Fleming. The Research Vessel Project never came to fruition. These men developed a different plan to import cocaine, which the appellant was not involved in. However, the French Navy intercepted the boat that was used to transport 212 kilograms of cocaine.

Issues

[28] The appellant raised the following grounds of appeal against his conviction: (1) the trial judge erred in his instructions on the use of evidence on a multiple count indictment; (2) the trial judge’s instruction on the co-conspirator’s exception to the hearsay rule was deficient; and (3) the trial judge erred in failing to give the jury a special caution regarding the PGP messages. The appellant also raises a new issue for the first time on appeal – the interception of the PGP messages violated s. 8 of the Charter. The appellant appeals his sentence on the following grounds: (1) the trial judge erred in considering the appellant to be a principal player in the conspiracy to import cocaine; and (2) the sentence imposed was unfit.

Appeal Against Conviction

Instruction on Multiple Counts

[29] The appellant submits that the trial judge did not adequately instruct the jury on what evidence was admissible on each count; nor did he warn the jury about cross-count propensity reasoning. These submissions cannot succeed.

[30] In R. v. M.(B.), (1998), 42 O.R. (3d) 1 (Ont. C.A.), this court held, that on a multi-count indictment, the jury must be instructed to consider each charge separately and not to use evidence relating to one count on any other counts: at p. 14. See also R. v. Dawson, 2016 ONCA 880, 343 C.C.C. (3d) 499, at para. 22.

[31] The trial judge instructed the jury in the following way on this issue:

Each count of the indictment is a separate charge. You must make a separate decision and give a separate verdict for each charge. Your verdicts on each charge may be the same, or they may be different. You must make your decision on each charge only on the basis of the evidence that relates to that charge and the legal principles that I tell you apply to your decision on that charge. You must not use evidence that relates only to one charge in making your decision on any other charge. Mr. Tello is presumed innocent of each charge against him. In each case, your verdict will depend on your assessment of the evidence and your application of the legal principles that relate to that charge. The verdict sheet you will be given will show the verdicts available on each charge. And I will tell you more about its use later in these instructions. [Emphasis added.]

[32] No issue is taken with how the trial judge summarized the evidence; the concern is that the trial judge ought to have presented the evidence in a way that restricted individual pieces of evidence to specific counts on the indictment.

[33] However, that was not feasible in this case because a good deal of the evidence was relevant to all of the counts. As the Crown points out, the events surrounding the trafficking and proceeds counts took place within the context of the broader conspiracy to import cocaine. The evidence was interrelated.

[34] Moreover, defence counsel repeatedly urged the jury to consider all of the evidence in their consideration of whether the appellant was the author of the PGP messages, the credibility of UCO Joe, whether the manner in which the police preserved the PGP messages was accurate and reliable, and whether the subject-matter of the discussions between the appellant and UCO Joe was actually about cocaine. In these circumstances, it was not necessary to summarize the evidence in the siloed manner now requested on appeal. See, for example, R. v. Sandhu, 2009 ONCA 102, 242 C.C.C. (3d) 262, at paras. 11-15.

[35] Moreover, defence counsel did not object to the instructions as given, no doubt because it would have undermined the holistic approach he urged upon the jury. While not dispositive, defence counsel’s absence of an objection is informative: R. v. Goforth, 2022 SCC 25, 415 C.C.C. (3d) 1, at paras. 39, 52.

[36] The appellant further submits that the trial judge did not give a sufficient warning against cross-count propensity reasoning. The concern is that the jury heard a good deal of bad character evidence and evidence of other potential conspiracies that never came to fruition, as discussed earlier. Moreover, there was a danger that the jury would use the conspiracy count to reason that the appellant was more likely to be guilty of the other three counts which, while serious, paled in comparison to the conspiracy (at least in terms of the amount of cocaine involved).

[37] It is clear that the trial judge did not specifically warn the jury that a finding of guilt on one count is not evidence of guilty on another. However, in Dawson, Feldman J.A. observed that this type of instruction is merely an example of the instruction to keep the evidence on each count separate. As she said, at para. 28: “failure to give a propensity warning is not always fatal. Rather, the court may tailor the charge in a particular case to suit the circumstances of the case.”

[38] That is what the trial judge did in this case. He gave a strong general propensity warning:

You have heard evidence in this case that might suggest that Mr. Tello may have engaged in other potentially discreditable were questionable conduct, or had associations with others who might have been engaged in discreditable or questionable conduct.

[39] After referring to some of this evidence, the trial judge then told the jury:

Accordingly, you must not use this evidence, or this kind of evidence, to conclude or to help you conclude, that Mr. Tello is someone with a morally questionable disposition, or someone with questionable associations and relationships, who was more likely to have committed the offences to charge because of that disposition or because of those associations. Similarly, you must not seek to punish Mr. Tello for any such perceived discreditable or morally questionable conduct, or for his questionable associations or relationships with others, by finding him guilty of the offence charged, simply because he engaged in that conduct or had those associations. [Emphasis in the original.]

[40] This instruction was sufficient in the circumstances. Defence counsel raised no objection to it. This ground of appeal is dismissed.

Instruction on Co-Conspirator’s Exception to Hearsay Rule

[41] The appellant submits that the trial judge’s instruction on the co-conspirator’s exception to the hearsay rule was deficient. The appellant submits that the trial judge erred in not instructing the jury that, before they could find him to be a member of the conspiracy, they had to be satisfied on a balance of probabilities that the appellant “knew the nature and purpose of the conspiracy”. This submission cannot succeed.

[42] As a general matter, the following requirements that must be met before the co-conspirator’s exception to hearsay is engaged:

a. The existence of an unlawful common purpose (in this case, a conspiracy). Where the existence of a conspiracy is an essential element that the Crown must prove beyond a reasonable doubt, the same standard applies at this stage;

b. The accused must be a member of the unlawful common design. The Crown must prove membership on a balance of probabilities; and

c. The statement in question was made in furtherance of the unlawful common design.

See, R. v. Carter, [1982] 1 S.C.R. 938, at p. 946; R. v. Yumnu, 2010 ONCA 637, 260 C.C.C. (3d) 421, at paras. 336-342; R. v. McGean, 2019 ONCA 604, at para. 6. See generally, David M. Paciocco, Palma Paciocco and Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at pp. 201-206.

[43] This appeal concerns the second stage – membership in the conspiracy. After reviewing the first stage, the trial judge instructed the jury in the following manner about membership in the conspiracy:

If you are satisfied, however, beyond a reasonable doubt that there was this alleged common design to import cocaine, you must next consider and decide whether Mr. Fleming, Mr. Dibben, and the accused, Mr. Tello, were probably participants in that broader common design. By the term “probably” in this context, I mean “more likely than not." This is the second step of the analysis. [Emphasis in the original.]

[44] The trial judge then outlined five areas of evidence that the jury could consider in determining whether the appellant was a participant or member of the conspiracy.

[45] This instruction was consistent with the manner in which juries are regularly instructed on this issue in this Province. In David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), [1] Final 34-B recommends that the jury be told that, whether a person is member of a conspiracy should be determined by evaluating the words and actions of that person to determine whether they were “probably a participant in the common design” (emphasis added). The trial judge used these words in his instruction.

[46] This instruction should be considered in conjunction with the trial judge’s instructions on the requisite elements of a conspiracy that the Crown is required to prove. In this context, the trial judge told the jury:

A person may become a member of a conspiracy even if that person agrees to play only a minor part or role in the conspiracy. What is essential, however, is that the person has an understanding of the unlawful nature of the plan, and voluntarily and intentionally joins in it. In any case, and accused must actually agree, and intend to agree, to achieve the common unlawful purpose (i.e. in this case importing cocaine).

It is important to remember that merely being present when something happens, merely acting in the same way as others, or merely associating with others who are said to be members of a conspiracy, does not prove that a person has joined in the agreement with knowledge of its nature and purpose. A person who knows nothing of a conspiracy but who happens to act in a way that advances one of its purposes, does not thereby become a member. [Italics in the original, underlining added.]

[47] This portion of the charge to the jury captures exactly what the appellant now complains of – an instruction that the appellant had to have knowledge of the nature and purpose of a conspiracy.

[48] A jury charge must be read functionally and as a whole. It is the substance of the charge that matters: Goforth, at para. 21. In this case, the jury was properly equipped with an understanding of what was required to find the appellant to be a “member” or “participant” in the conspiracy. This ground of appeal is rejected.

[49] The appellant further submits that the trial judge erred in not identifying for the jury the specific utterances to which the exception applied. This submission is based on the fact that it was a live issue at trial whether the appellant was the author of all of the communications that were attributed to him in the PGP communications. The appellant contends that the Crown at trial conceded that the appellant may not have been the author of all of these messages.

[50] The Crown disputes this imputed concession, and contends that the trial Crown merely submitted that, even if the appellant did not send all of the messages, he would still be proved to be a member of the conspiracy.

[51] In any event, the question of who sent the messages, and which ones, if any, was a question of fact to be determined by the jury. First, the trial judge made clear to the jury that the defence position was that they could not assume the PGP messages were authored by the appellant:

There is also an issue as to whether or Mr. Tello was the person who sent the messages that came from the email addresses "101lock" and "xms.480." Defence counsel contends that you cannot safely conclude that the messages that were sent from those email messages were sent by Mr. Tello.

[52] Then, the trial judge explained to the jury that it was their decision to determine what the appellant may have said or wrote:

Ultimately, it is for you to say whether Stephen Tello said or did the things alleged, and whether what he said or did satisfies you (examined separately and only with respect to his own actions and statements) that he was probably a member in the common design to import cocaine into Canada. [Emphasis added.]

This instruction was repeated later in the trial judge’s charge.

[53] The decision as to which PGP messages came from the appellant was the jury’s province. It would not have been appropriate for the trial judge to direct the jury on this issue. This ground of appeal is dismissed.

Instructions on the PGP Messages

Background

[54] The appellant submits that the trial judge erred in failing to sufficiently warn the jury about frailties associated with how the Crown presented the PGP messages.

[55] Because the police believed that they were unable to electronically retrieve or extract these encrypted messages from UCO Joe’s Blackberry, they decided to photograph the messages displayed on the screen of the device. This was not without its challenges. The officer who was tasked with this photography, Sgt. Keddy, was not trained in how to photograph the messages. In cross-examination at trial, it became apparent that she may have missed message threads because she was not familiar with the PGP technology and how the messages are displayed.

[56] Sgt. Keddy testified that the messages were photographed in the order in which they were sent or received. However, the time stamps revealed that some of the messages were out of order. Other police witnesses acknowledged that some messages were missing. Moreover, the continuity of the Blackberry used by UCO Joe was not always maintained.

[57] Further, on the day after the arrests were made in this investigation, Sgt. Keddy unlocked the phone, and all messages were gone. She recalled seeing “a weird message”, “like a start-up message”, something she did not photograph. The disappearance of the messages was a mystery.

No Need for a Special Caution

[58] In light of these problems, at the Pre-Charge Conference, defence counsel asked the trial judge to provide a “special caution” about this body of evidence. As he said, “I’d like a caution on the PGP evidence…given how significant that is to the ultimate deliberation in this case.” In the ensuing discussion, the trial judge pointed out that special cautions are usually reserved for categories of evidence that a jury might not realize require caution (for example, eyewitness identification evidence or unsavoury witnesses). The trial judge said that he was not convinced that the PGP photographs required this type of special caution. Defence counsel said he would consider the matter further and, if he thought there was merit in pursuing the matter, he would raise it again. He did not.

[59] The trial judge gave the following instruction about the PGP messages:

With respect to these text messages, there appears to be no issue between the parties as to the accuracy of the vast majority of the actual photographs of the messages that are before you. However, there are a number of serious issues between the parties concerning the reliability of these photographs, in terms of the inferences that you can safely draw from this collection of photographs. [Emphasis in the original.]

[60] The trial judge then recounted the shortcomings of this evidence that defence counsel identified in his closing address. In his itemization of these shortcomings, the trial used the expression “defence counsel contends” on a number of occasions. He completed this aspect of this charge by saying:

You will, of course, carefully consider each of those issues in determining whether the Crown has established the alleged guilt of the accused beyond a reasonable doubt.

[61] The same problems with the PGP evidence were repeated in the trial judge’s outline of the defence position at the end of his instructions. The trial judge devoted considerable time to this part of his charge, which spanned roughly 20 pages of transcript.

[62] There is no error in the trial judge’s approach. There was nothing about this body of evidence that required a special caution. The jury was perfectly capable of gauging the reliability of this set of photographs and assessing the significance of potentially missing photos. Unlike eyewitness identification, there was nothing inherently dangerous about this type of evidence that required a special caution.

[63] In any event, although the trial judge did not provide a “special caution”, his instructions thoroughly canvassed the potential problems with the PGP evidence. The jury would have been well-equipped to properly evaluate this evidence.

[64] The appellant further submitted that, to the extent that the trial judge did alert the jury to reliability considerations with this evidence, his instructions were undermined by attributing these concerns to defence counsel. But this case is unlike R. v. Phillips, 2018 ONCA 651, 364 C.C.C. (3d) 220, upon which the appellant relies for this proposition. In that case, this court found that the trial judge erred in warning the jury about an in-dock identification by simply referring to defence counsel’s submissions on the issue. As Huscroft J.A. said, at para. 27:

The appellant’s trial counsel made strong submissions on the issue in his closing address to the jury, but they were just that: submissions. It was the responsibility of the trial judge to instruct the jury, having regard to counsel’s submissions, and she failed to do so. Her silence on the point may well have undermined counsel’s submissions by failing to endorse them.

[65] That holding was made in circumstances where the frailties of the type of evidence at issue were well-known and warranted a cautionary instruction: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445. That is not the case here. Nonetheless, the trial judge told the jury that there were “serious issues” with the evidence and to “carefully consider” these shortcomings in deciding whether the Crown had proven the appellant’s guilt beyond a reasonable doubt. There was no objection, presumably because defence counsel’s approach to this evidence was a central feature of the trial judge’s final instructions. This ground of appeal is dismissed.

Interception of PGP Messages and s. 8 of the Charter

Background

[66] The appellant seeks to raise a new issue on appeal. At trial, he did not challenge the admissibility of the PGP messages under s. 8 of the Charter. At the time, this court’s decision in R. v. Marakah, 2016 ONCA 542, 131 O.R. (3d) 561, held that the sender of a text message had no standing to challenge the admissibility of messages sent to another device.

[67] However, on the same day that the trial judge began his charge to the jury – December 8, 2017 – the Supreme Court of Canada reversed this court’s decision and held that the sender of text messages may have standing to challenge the admissibility of such messages under s. 8 of the Charter. The majority held that, “depending on the totality of the circumstances, text messages that have been sent and received may in some cases be protected under s. 8” and “whether a reasonable expectation of privacy in such a conversation is present in any particular case must be assessed on those facts by the trial judge”: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 4-5.

[68] The appellant submits that he is entitled to raise this issue on appeal. He contends that the trial record is sufficient to establish a breach of s. 8 of the Charter, but that a new trial should be ordered as to the appropriate remedy. The Crown opposes the appellant’s attempt to raise this issue and submits that the decision not to raise the issue at trial was tactical. The Crown submits that, in any event, the appellant would be unsuccessful in establishing a breach of s. 8 of the Charter.

Analysis

[69] As a general rule, appellate courts will not permit new issues to be raised for the first time on appeal, subject to certain exceptions: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at para. 37. In Reid, the appellant sought, for the first time on appeal, to impugn the constitutional validity of part of the Garofoli procedure. The appellant was unsuccessful. Watt J.A. held, that a party wishing to raise an issue for the first time on appeal must satisfy the following criteria:

(i) the evidentiary record must be sufficient to permit the appellate court to fully, effectively and fairly determine the issue raised on appeal;

(ii) the failure to raise the issue at trial must not be due to tactical reasons; and

(iii) the court must be satisfied that no miscarriage of justice will result from the refusal to raise the new issue on appeal.

Reid, at para. 43, citing R. v. Brown, [1993] 2 S.C.R. 918, at p. 927, per L'Heureux-Dubé J. (dissenting).

[70] Ultimately, the decision to permit a new issue to be raised on appeal is discretionary, “informed by the interests of justice as they affect all parties”: Reid, at para. 44; and Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at para. 18. Finality in criminal proceedings is an important element in the equation.

[71] The appellant fails on the second and third criteria in Reid. The record demonstrates that the decision not to seek exclusion of the PGP photos was tactical. Moreover, the appellant has failed to demonstrate that there will be a miscarriage of justice if the issue is not considered on appeal.

[72] The background to the admission of the PGP photographs is addressed in detail in the trial judge’s written ruling, delivered after the trial was over: R. v. Tello, 2018 ONSC 356. The trial judge noted that, at the beginning of the trial, defence counsel said that he was “not challenging the admissibility” of the PGP photographs, but foreshadowed that there were going to be issues with respect to their “coherence and reliability”. He wanted the jury to have paper copies of the PGP photos so he could demonstrate those problems in cross-examination. The trial proceeded on this basis.

[73] Defence counsel challenged the admissibility of the messages after they had already been introduced. In his colloquy with the trial judge, defence counsel acknowledged that he did not challenge the evidence ahead of time because he did not want to tip-off the Crown to his concerns with the PGP photos. Prior notice would have given the Crown the opportunity to address those problems. As he told the trial judge, “I would have lost that strategic advantage.”

[74] The trial judge addressed the timing of defence counsel’s motion, at para. 23 of his ruling:

After advising the parties of my conclusion that the voluminous photographs of the text messages were admissible, and inquiring as to the reasons for the mid-trial timing of this issue, I was advised that defence counsel pursued the admissibility issue in this way for “strategic” reasons. More particularly, defence counsel indicated that he did not want to bring a pre-trial application to have the admissibility of this evidence determined as, if he was unsuccessful, the Crown might take steps to try to remedy the perceived deficiencies in the record as the evidence was tendered before the jury. Further, defence counsel indicated that, even if the photographs of the text messages were themselves excluded, the Crown might still have been able, based upon R. v. Fliss, 2002 SCC 16, to employ the text messages to refresh the memories of the various police officers as to the nature of the text message communications between them and others. [Emphasis added.]

[75] I return to Marakah. An appeal from this court’s decision was argued in the Supreme Court of Canada on March 23, 2017, before this trial. The Court reserved its decision. This state of affairs is very much part of the public record, and was well-known in the legal community at the time. Yet, trial counsel took no steps to preserve the appellant’s position on this issue at trial by raising it before the trial judge and seeking a ruling, even if only as a placeholder while awaiting the outcome from the Supreme Court.

[76] When the Supreme Court released its ruling on the day that the trial judge commenced his final instructions to the jury, defence counsel made no mention of it that day, nor later. There was no Charter application. There was no explanation provided on appeal for why trial counsel did not pursue the matter.

[77] The appellant submits that the decision not to pursue a Charter application following the Supreme Court’s judgment was not tactical because it is clear that the appellant always wanted the PGP photos excluded. He submits that, although the approach on appeal is different, it lines up with the litigation strategy at trial.

[78] This court does not need to decide whether the appellant would have succeeded in establishing standing based on the Supreme Court’s decision in Marakah. As noted above, it is a matter that must be assessed in the context of all of the circumstances. Assuming the appellant was able to satisfy the requirements of Marakah (SCC), which were re-visited in R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320, he would be in no better position in the end. Had the PGP photos been excluded on Charter grounds, the police witnesses would still have been permitted to refresh their memories by reviewing those same messages, in accordance with R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535, at para. 45; see also R. v. Kerr, 2022 ONCA 530, at para. 22.

[79] The appellant submits that there may have been practical problems with this process, given the volume of PGP photos. But this is essentially what happened at trial in any event – each PGP photo was introduced through an officer and the contents were explained.

[80] Consequently, in accordance with Reid, the appellant is not permitted to raise this new constitutional issue on appeal. The appellant did not challenge the admissibility of the PGP messages at trial for tactical reasons. Moreover, based on the application in Fliss, no miscarriage of justice will result from the refusal to permit the appellant to raise the Marakah issue for the first time on appeal.

[81] This ground of appeal is rejected.

The Sentence Appeal

[82] At the sentencing hearing, the Crown submitted that the appellant should receive a sentence of 20 years, whereas the appellant requested a sentence of 10 to 12 years. The trial judge sentenced the appellant to 15 years’ imprisonment, less credit for pre-sentence custody.

[83] The trial judge provided thorough reasons for his decision: R. v. Tello, 2018 ONSC 2259. Absent error, they are entitled to deference on appeal: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 41. There is no error in the trial judge’s approach, nor in the sentence he ultimately imposed.

[84] The trial judge reviewed the evidence at trial and made findings that were important to his sentencing decision. His dominant focus was on the conspiracy count. He noted that the conspiracy spanned 145 days. The co-conspirators discussed the importation of “massive” quantities of cocaine, at one point mentioning the possibility of importing up to over 13,000 kilograms of the substance. Evidence at trial established that the would-be cocaine importers stood to make a profit of $42,500 per kilogram, or up to $42.5 million in total.

[85] The trial judge also carefully considered the appellant’s personal circumstances. The appellant was 35 years old at the time of the offences. He had no prior criminal record. He enjoyed support from most of his family members. The trial judge concluded that the appellant has “excellent prospects for successful rehabilitation, and this was a factor that has to be carefully considered in sentencing”: at para. 71.

[86] Nonetheless, applying the principles of sentencing in ss. 718 to 718.2 of the Criminal Code, in conjunction with s. 10(1) of the CDSA, the trial judge focused on the need to emphasize general deterrence and denunciation: at para. 92. He was right to do so. See also R. v. Hamilton and Mason (2004), 72 O.R. (3d) 1 (Ont. C.A.), at paras. 104-105, R. v. Malanca, 2007 ONCA 859, 88 O.R. (3d) 570, at para. 44, leave to appeal refused, [2008] S.C.C.A. No. 71.

[87] The appellant submits that the trial judge erred in characterizing his role in the conspiracy. He advances several reasons why the trial judge should have found that he was merely a “screen”, or a representative for someone else. However, as also noted by the trial judge, this essentially amounts to a collateral attack on the jury’s verdict on the conspiracy count.

[88] At the sentencing hearing, the appellant disputed that he was the author of all of the messages exchanged with UCO Joe. However, the trial judge rejected this argument and said, at para. 9:

This argument appears to have been rejected by the jury. Further, I am satisfied beyond a reasonable doubt, based on all of the evidence, then Mr. Tello was the only person behind each of these two accounts. More particularly, I'm satisfied that the accused saw all of the material messages sent to those accounts, and personally sent all of the relevant messages from those accounts.

[89] Based largely on the PGP messages, he trial judge described the appellant as “one of the high-ranking and controlling partners in the conspiracy, sharing the top rung of the cocaine distribution hierarchy with his co-conspirators, and being actively engaged and knowledgeable in all aspects of the ongoing operation”: at para. 100. He found that the appellant was involved in salvaging the project when problems appeared and was the “driving force” in arranging UCO Joe’s partial deposit. He was entitled to make these findings on the record before him.

[90] The appellant submits that the trial judge erred in using the sentences received by Mr. Dibben (12 years) and Mr. Fleming (16 years) as comparators. The trial judge reviewed the circumstances of these two men in considerable detail. He noted that Mr. Dibben entered a plea of guilty to a single count of conspiracy to import cocaine. However, this was not the same conspiracy that the appellant participated in. It involved the importation of 212 kg of cocaine that was intercepted by the French Navy, as referenced above. Mr. Fleming, on the other hand, pleaded guilty to the conspiracy in this case, as well as the other conspiracy with Mr. Dibben. The sentencing judge in that case, McMahon J., concluded that Mr. Fleming played a role that was equal to or greater than the appellant.

[91] The trial judge’s treatment of these comparators was not misplaced. He specifically noted the differences between the three men. It was very significant that both Mr. Dibben and Mr. Fleming entered pleas of guilty; the appellant did not. This was a significant mitigating factor in sentencing these two other men, one that was not available to the appellant.

[92] More generally, the appellant submits that the sentence imposed was disproportionate in view of the fact that it was a “dry” conspiracy – i.e., no drugs were actually imported in furtherance of the conspiracy. But the appellant was involved in trafficking three kilograms of cocaine and he was instrumental in the plan to import thousands more.

[93] In R. v. Russo, (1999), 42 O.R. (3d) 120 (Ont. C.A.), also involving a dry conspiracy to import cocaine, Doherty JA spoke of the destructive nature of cocaine and said the following at p. 125: “Their agreement contemplated a large-scale commercial transaction in a deadly substance. While ultimately no profit was made, there can be no doubt that profit was the motive. These respondents were prepared to do significant damage to others so that they could make money.”

[94] The trial judge took into account the fact that this was a “dry” conspiracy. He said it resulted in a “significant reduction in the sentence that might otherwise have been imposed”: at para. 110.

[95] The trial judge imposed a fit sentence. There is no basis on which to interfere with it.

Disposition

[96] For these reasons, the appeal from conviction was dismissed. Leave was granted to appeal the sentence but the sentence appeal was dismissed.

Released: May 8, 2023 “M.T.” “Gary Trotter J.A.” “I agree. M. Tulloch J.A.” “I agree. M.L. Benotto J.A.”

[1] This edition of the book was current at the time of trial. There is no change on this issue in the newer edition of this work: David Watt, Watt’s Manual of Criminal Jury Instructions, 3rd ed. (Toronto: Thomson Reuters, 2023), Final 34-B.