Decision on Committal to Trial

Ontario Court of Justice Toronto Region

Between:

Her Majesty the Queen

- and –

Baldwin Junius, Troy Chemin, Collin Grant, Jamal Shehai, Duvals Smith, Kyle Thompson, Tresor Mukenge

Before: Justice P. J. French

Heard: July 19, 20, 22, 25-29, August 2, 5, 9-12, 15-18, 23-26, September 19, 28, 30, December 5-7, 12-14, 16, 19, 22, 2011 and February 13-17, March 26-30, April 24 and May 1, 2012

Released: August 22, 2012

Counsel

For the Crown:

• Scott Clarke
• W. Rolls

For B. Junius:

• Amit Thakore

For T. Chemin:

• Susan J. Von Achten

For C. Grant:

• Charles Granek

For J. Shehai:

• George Wootten

For D. Smith:

• Laura Liscio

For K. Thompson:

• Christopher Assie

For T. Mukenge:

• Victoria Tucci

Notwithstanding the Order herein restricting publication pursuant to s. 539(1) of the Criminal Code and the restrictions on publication in any document or broadcast or transmission in any way of the evidence taken at the preliminary inquiry, these Reasons for Decision may be reproduced for judicial proceedings and/or published by any legal/judicial reporting service for educational purposes.

Organization of Reasons

This is a decision concerning committal for trial following a lengthy preliminary inquiry. For the assistance of counsel and the accused persons, these Reasons for Decision are organized into the following parts:

• Part 1: Introduction
• Part 2: Overview
• Part 3: Applicable Legal Principles
• Part 4: Voice Identification
• Part 5: Analysis of the Charges other than the Criminal Organization Charges
• Part 6: Analysis of the Criminal Organization Charges
• Part 7: Summary of Orders Made
• Appendix "A": Table of Charges
• Appendix "B": Extracts from the Criminal Code and Controlled Drugs and Substances Act

PART 1 - INTRODUCTION

This preliminary inquiry began in July 2011. There were nine accused. One subsequently entered a plea before another judge. Another, Oran Goslyn, was, on consent, the subject of separate submissions and was ordered to stand trial. See, R. v. Goslyn, February 24, 2012, unreported, French, J. (O.C.J.). The remaining seven accused are in custody.

I am not asked to order the remaining accused to trial on the charges set out in the voluminous Information upon which this preliminary inquiry proceeded. Rather, the Crown submits that they should be ordered to stand trial on 71 charges that arise from the evidence heard at the preliminary inquiry.

Part 2 of these Reasons provides an overview of the investigation and charges against the accused. Much of the evidence at the preliminary inquiry was admitted pursuant to s. 540(7) of the Criminal Code. The Court also heard from three police officers qualified as experts to give opinion evidence concerning street and coded language in relation to gang culture, drugs, and firearms, respectively. Their evidence was particularly relevant to the meaning of coded language heard on the intercepted voice and text communications admitted into evidence.

The legal principles relevant to this decision are summarized in Part 3. They include the principles concerning the role of a judge at a preliminary inquiry. They also include some comments concerning direct and circumstantial evidence and the drawing of inferences. The legal concepts of possession and of trafficking are essential elements in most of the charges alleged. A brief overview of their meaning is provided in Part 3.

I mentioned above the intercepted voice and text communications admitted into evidence pursuant to s. 540(7) of the Criminal Code. The intercepted communications and accompanying transcripts were admitted subject to the Crown calling further evidence to satisfy the court that the persons named on the call summaries and in the transcripts are the persons speaking in the intercepted communications. The issue of voice identification affects each accused person and was the subject of considerable argument by all counsel. It is therefore given its own part in these Reasons, Part 4.

Part 5 is the analysis of the various charges against each accused person, other than the criminal organization charges.

There are 16 criminal organization charges alleged against the accused persons. They are analysed in Part 6.

Part 7 is a summary of the Orders made with respect to standing trial or discharge of each accused person on the charges listed in Appendix "A".

I organized the charges for which the Crown sought orders to stand trial in the Table presented as Appendix "A" at the end of these Reasons. Appendix "A" groups the charges per accused person and describes the individual charge, date, and respective section of the Criminal Code or Controlled Drug and Substances Act (CDSA) that may be in issue. I distributed Appendix "A" to all counsel in advance of this decision to ensure that everyone agreed on the charges in issue. For purposes of this decision, I have incorporated into Appendix "A" a new column described as "Disposition". For those interested only in the bottom line, I have there noted my decision whether the accused person be "ordered to stand trial" [in the Superior Court] or "discharged" in respect of an individual charge.

The relevant sections of the Criminal Code and CDSA have been reproduced in Appendix "B" to these Reasons. Appendix "B" is broken down into numbered parts for ease of reference and, in these Reasons, I often refer simply to the numbered part.

PART 2 – OVERVIEW

In early August, 2009, the accused persons became subjects in a broad investigation undertaken by the Integrated Guns and Gangs Task Force of the Toronto Police Service. Two separate wiretap authorizations were obtained in January and March, 2010. They were collectively valid from January 27 through May 21, 2010.

The investigation focused on three alleged criminal organizations within communities of the northwest area of Toronto. One of the three organizations was identified by the police as the Falstaff Crips.

The name of the Falstaff Crips was derived from the primary geographical area in which they are alleged to have operated. That is, the high-rise apartment buildings at Numbers 20, 30, 40, and a community centre at 50 Falstaff Avenue, in the west end of the City of Toronto, Ontario.

The Crown alleges that the Falstaff Crips is a criminal organization as defined in the Criminal Code. The Crown alleges that Messrs. Grant, Junius, Chemin, Shehai and Smith are members of the criminal organization. It is alleged that Messrs. Thompson and Mukenge are associates of the organization.

The Crown alleges that throughout the investigation, Messrs. Grant and Junius worked together with others, to traffic cocaine and marijuana. It is alleged that they were expanding their territory into the east end of Toronto. In late February, 2010, Messrs. Chemin and Smith travelled to Ottawa where they worked with Tresor Mukenge. The Crown alleges that the purpose was to establish in Ottawa and Gatineau, Quebec, a business of trafficking in crack cocaine.

The investigation into Project Corral as a whole culminated on "take-down day", May 4, 2010, with the execution of multiple search warrants in Toronto and Ottawa. Search warrants were executed at the homes of the accused before this Court.

The general nature of the evidence admitted pursuant to s. 540(7) of the Criminal Code was summarized at length in the court's Reasons for Ruling dated August 5, 2011. See, R. v. Junius, August 12, 2011, unreported, French, J. (O.C.J.).

There were 553 intercepted communications, including voice and text messages, in the s. 540(7) evidence. The records and documents for each intercepted communication included a call summary, a wave file being the audio recording of the intercept, and a transcript of the intercepted communication.

A principal issue advanced throughout the preliminary inquiry on behalf of the accused persons was the inadequacy of the evidence of voice identification. As noted in the Introduction, that issue is dealt with separately in Part 4. A finding of common application is made and deemed applied to each charge analyzed in Parts 5 and 6.

Two of the accused persons, Duvals Smith and Tresor Mukenge, have consented to an order that they be committed to trial on the charges appearing at Nos. 46 through 71 of Appendix "A".

PART 3 – APPLICABLE LEGAL PRINCIPLES

(1) Direct Evidence, Circumstantial Evidence and Inferences

There is little direct and positive evidence proving the elements of the offence on the part of the accused persons. This is not uncommon in criminal cases.

In Watt's Manual of Criminal Jury Instructions (Toronto: Thomson Carswell Ltd, 2005) direct and circumstantial evidence are defined in these terms:

Sometimes witnesses tell us what they personally saw or heard. For example, a witness might say that he/she saw it raining outside. This is called direct evidence.

Often, however, witnesses say things from which you are asked to draw certain conclusions. For example, a witness might say that he or she had seen someone enter the courthouse lobby wearing a raincoat and carrying an umbrella, both dripping wet. If you believed that witness, you might conclude that it was raining outside, even though the evidence was indirect. Indirect evidence is sometimes called circumstantial evidence.

The author goes on to point out that the law treats both types of evidence equally; neither is necessarily better or worse than the other. In each case, the job of the trier of fact is to decide what conclusions should be reached based on the evidence as a whole, both direct and circumstantial. Common sense and experience are to be used in making the decision.

Where evidence is circumstantial, it is critical to distinguish between inference and speculation. In Watt's Manual of Criminal Evidence (Thomson Reuters Canada) the author writes at page 43 that:

Inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. There can be no inference without objective facts from which to infer the facts that a party seeks to establish. If there are no positive proven facts from which an inference may be drawn, there can be no inference, only impermissible speculation and conjecture.

An interesting and informative analysis of inference and impermissible speculation was offered by Justice Ducharme in R. v. Munoz (2006), 205 CCC (3d) 70. He wrote:

It is difficult, if not impossible, to define with any precision a bright line distinction between the drawing of reasonable inferences and mere speculation. However, in this regard I would adopt the language of Aldisert J. in Tose v. First Pennsylvania Bank, N.A. 648 F. 2d 879, 895 (3rd Cir.), cert. denied, 454 U.S. 893 (1981) at 895:

The line between a reasonable inference that may permissibly be drawn by a jury from basic facts in evidence and an impermissible speculation is not drawn by judicial idiosyncrasies. The line is drawn by the laws of logic. If there is an experience of logical probability that an ultimate fact will follow a stated narrative or historical fact, then the jury is given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts. As the Supreme Court has stated, "the essential requirement is that mere speculation be not allowed to do duty for probative facts after making due allowance for all reasonably possible inferences favoring the party whose case is attacked." Galloway v. United States, 319 U.S. 372, 395, 63 S. Ct. 1077, 1089, 87 L. Ed. 1458 (1943).

The inferences relied on by the Crown must therefore be ones that can be reasonably and logically drawn. They cannot depend on speculation or conjecture, rather than evidence, to bridge any inferential gaps.

(2) The Test for Committal under the Criminal Code

Section 548(1) of the Criminal Code gives directions to a judge presiding at a preliminary inquiry. It reads:

When all the evidence has been taken by the justice, he shall

(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or

(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.

(3) Application of the Test for Committal in Common Law

A judge acting at a preliminary inquiry must commit the accused to stand trial if there is evidence before the court upon which a reasonable jury, properly instructed, could return a verdict of guilty. See, United States of America v. Sheppard, [1977] 2 S.C.R. 1067, 30 C.C.C. (2d) 424 at 427. In Arcuri v. The Queen, 2001 SCC 54, [2001] 2 S.C.R. 828, 157 C.C.C. (3d) 21 at 24, the court affirmed the common law rule expressed in Sheppard, supra, that a judge presiding at a preliminary inquiry is required to commit an accused person for trial "in any case in which there is admissible evidence which could, if it were believed, result in a conviction".

Whether the evidence at the preliminary inquiry is direct or circumstantial, the test for committal remains the same. However, the nature of the judge's responsibility varies according to the type of evidence that the Crown tenders. In Arcuri, above, at paragraph 23, McLachlin C.J. described the nature of the judge's task where the Crown's evidence is circumstantial:

[23] The judge's task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence - that is, those elements as to which the Crown has not advanced direct evidence - may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established - that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt's Manual of Criminal Evidence, supra, at s. 9.01 (circumstantial evidence is "any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue"); McCormick on Evidence, supra, at pp. 641-42 ("circumstantial evidence ... may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion"). The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

(4) Elements of an Offence

Each offence in the Criminal Code has its own essential elements, which may be proven by either direct or circumstantial evidence. It follows from Arcuri, above, that the Crown must adduce evidence sufficient to permit a properly instructed jury acting reasonably to find each essential element established. See, R. v. Charemski, [1998] 1 S.C.R. 679, 123 C.C.C. (3d) 225, 229, per Bastarache J. Where the evidence on an essential element is circumstantial, a judge presiding at a preliminary inquiry must determine whether the evidence is reasonably capable of supporting the inference necessary to establish the essential element.

I defer comment on the essential elements of most of the offences charged until they are analyzed in Parts 5 and 6, following. However, given that they figure so prominently in most of the charges against the accused, it may be helpful to comment here on the elements of "possession" and "trafficking".

For purposes of this preliminary inquiry, counsel for the accused persons accepted the evidence in the s. 540(7) materials that the drugs or firearms in issue were drugs or a firearm, respectively, within the meaning of the CDSA or the Criminal Code, as the case may be.

The issue remains, however, whether the accused person was in "possession" of, or "trafficked" in, the substance, or a firearm, as may be alleged in a particular charge.

The basic definition of "possession" appears in s. 4(3) of the Criminal Code. It is rendered applicable to drug offences pursuant to s. 2 of the Controlled Drug and Substances Act (CDSA). These sections are reproduced at parts 1 and 18, respectively, of Appendix "B". Section 4(3) of the Code reads:

For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

This definition anticipates three different types of possession: personal, constructive, and joint possession.

Personal possession is simply the situation where a person has actual care, through some form of physical contact, of the item in question. However, the criminal law requires more than simply having physical possession of the item. The criminal law requires three distinct elements: physical custody, knowledge and control.

What is required in order for there to be possession is not only physical custody, but also knowledge, both of the actual presence of the item and its general character. Thus, possession in the criminal law is not established until the accused has knowledge of what the item being handled is.

The criminal law incorporates a third element to possession. It adds the element of control, to the elements of physical custody and knowledge. Where it appears there is no intent to exercise control over the item, guilt should not be inferred. See, R. v. Christie, (1978), 41 C.C.C. (2d) 282 (N.B.C.A.)

There may be cases for which there is no actual evidence of trafficking, but where the facts indicate a strong intention on the part of the accused to engage in such activity. Rather than simply treating that person as a mere possessor of drugs, s. 5(2) of the CDSA provides that "[n]o person shall, for the purpose of trafficking, possess a [controlled] substance." In addition to the proof of possession, such a charge under s. 5(2) of the CDSA requires evidence of the accused's "purpose" in possessing the drug. Often, the "purpose of trafficking" can be inferred from: statements of the accused or co-accused; a large quantity of drugs; paraphernalia used in trafficking; the manner of storage; and, of course, intercepted communications.

The basic definition of "trafficking" as it applies to drugs appears in the CDSA. In s. 2(1) of the CDSA (see, Appendix "B", part 18), the term "traffic" means:

(a) To sell, administer, give, transfer, transport, send or deliver a substance,

(b) To sell an authorization to obtain the substance, or

(c) To offer to do anything mentioned in paragraph (a) or (b), …

Sub-paragraph (a) defines a very wide range of activity as trafficking. And, sub-paragraph (c) broadens it further to include an "offer" to do any of the activities in sub-paragraphs (a) and (b). Thus, the offence of trafficking may be completed by simply making the offer.

Insofar as firearms or weapons are concerned, the core element involved is the act of "transfer". That term is also defined to include a wide range of activity. Its definition in s. 84(1) of the Criminal Code is to, "… sell, provide, barter, give, lend, rent, send, transport, ship, distribute or deliver." See, Appendix "B", part 3.

The prohibition against offering to do any of those activities is found in the weapons trafficking offence in s. 99 of the Criminal Code. See, Appendix "B", part 6.

See, generally, Manning, Mewett & Sankoff, Criminal Law, 4th Ed., LexisNexis Canada Inc., 2009, at 727-728, and at 1137-1153.

PART 4 – VOICE IDENTIFICATION

For the assistance of counsel and the accused persons, this part is organized, for convenience, under the following headings:

• (a) Introduction
• (b) The s. 540(7) Ruling Concerning Voice Identification
• (c) The Evidence Concerning Voice Identification
• (d) The Position of the Parties
• (e) Analysis and Findings

(a) Introduction

The Crown's case against each accused person consists in large part of intercepted voice and text communications. The intercepted voice and text communications were admitted into the evidence of this preliminary inquiry by means of the procedure in s. 540(7) of the Criminal Code. See, R. v. Junius, August 12, 2011, unreported, French, J. (O.C.J.).

While the audio wave files and transcripts of the intercepted communications were admitted in evidence, the issue of identifying the voices and users in the communications required further evidence. To that end, the Crown called Mr. Kurt Eccleston, a civilian employee of the Toronto Police Service, to explain the processes of monitoring, identifying, and transcribing.

The defence submits that the Crown has not met its burden in the preliminary inquiry on the issue of voice identification.

The defence shared common ground in opposing the admission of the voice identification evidence. Mr. Granek, on behalf of Collin Grant, led on the issue; counsel on behalf of the other accused persons adopted his submissions. Mr. Granek's submissions were made in an initial application and then incorporated by reference and augmented in closing submissions. On consent, Mr. Granek's submissions are collectively considered in these Reasons for Decision.

The issue affects the interest of each accused person on most of the charges in Appendix "A". In my view, and for the reasons that follow, a common finding can be made on this issue arising from the evidence admitted pursuant to s. 540(7). That is, whether the persons identified on the call summaries and the transcripts are the persons speaking in the intercepted communications. In my view, it is helpful to deal with the issue here, by way of a common finding, rather than in the analysis of the individual charges in Parts 5 and 6, below.

(b) The s. 540(7) Ruling Concerning Voice Identification

There are 553 intercepted communications, including text messages, included in the evidence admitted pursuant to s. 540(7) of the Criminal Code. The records and documents in the materials for each intercepted communication include a call summary, a wave file, being the audio recording of the intercept, and a transcript of the intercepted communication. Each intercepted communication in the s. 540(7) evidence has its own four-digit number, preceded by the designation, "LCN....".

The technical process used to record and capture the data of the intercepted communications was described as the "JSI System", being an acronym for Jatom Systems Incorporated. That system has been used by the Toronto Police Service many times in the last several years.

Once the data of the intercepted communications was captured, other steps were taken to organize the intercepted communications and correctly attribute them to the accused person involved. The process was described in this court's ruling in the s. 540(7) application (see, R. v. Junius, supra, at page 13) as follows:

There were 25 monitors hired for this project to work in the wire room. D.C. Clarke's understanding was that 24 of them were familiar with Jamaican Patois. There were three lead monitors. One of the three has apparently previously been accepted by a court as an expert in Jamaican Patois. The transcripts are not prepared live. Rather, certain of the intercepted communications were identified after take-down day by the investigators.

Transcripts were then prepared of the intercepted communications so identified. Civilian personnel prepare the transcripts of the intercepted communications. Only the three lead monitors were used as "proofers" of the transcripts. One of the three lead monitors proof-reads each transcript of an intercepted communication.

For purposes of that part of the s. 540(7) ruling concerning intercepted communications, three types of files were identified. They were: (i) Call summaries, excluding investigator comments; (ii) Wave files; and (iii) Transcripts. They were found to be "credible or trustworthy in the circumstances of the case". They were admitted in evidence subject to an exception concerning voice identification. The exception was expressed in the following terms:

...the evidence falls short in establishing voice identification to the extent that, based on the transcripts and wave files alone, I can be satisfied that the persons identified on the call summaries and the transcripts are the persons speaking on the intercepted communications.

The Crown will need to satisfy me further by calling police witnesses, surveillance officers or persons monitoring the calls that the persons named on the call summaries and in the transcripts are the voices heard on the tapes.

I do not anticipate hearing witnesses on all 553 intercepted communications. Rather, the Crown is required to lead some evidence to establish how the initial voice identification was made. Subsequent caller identification can be hearsay so long as the proper foundation is laid and the evidence is trustworthy or credible. (R. v. Junius, supra, at pages 34-35)

(c) The Evidence Concerning Voice Identification

In due course, the Crown called Mr. Kurt Eccleston, a lead monitor with the Toronto Police Service. Mr. Eccleston described for the court the process by which voice identification was made for the communications intercepted in the investigation and admitted in evidence as part of the s. 540(7) materials.

Mr. Eccleston testified that, within the first few calls, parties typically begin to identify themselves in one way of another. In some instances, this will involve self-identification, either by name or nickname, or, in other instances, by describing events, situations, or relationships, which can then be used to identify the speaker.

Once a monitor has determined that a particular call contains identification information, that call is placed in a voice library. This allows monitors listening to subsequent calls to compare the voice being heard to the ones contained within the voice library. This reference process was available to and used by monitors throughout all stages of the gathering of interceptions from live monitoring through to transcribing and proofreading.

Where a person has been identified by voice, the monitor preparing the transcript was responsible for putting the party's name in the transcript. Thereafter, the monitor proofreading the transcript was required to verify the accuracy of the identifying information as well as the accuracy of the words spoken.

Mr. Eccleston testified that he conducted the process of voice identification and referencing from the voice library with respect to the accused before the Court. Prior to testifying, he also proofread and confirmed the accuracy of the names appearing on the transcripts prepared in relation to Messrs. Chemin, Shehai, Grant and Junius.

In addition to Mr. Eccleston's evidence concerning the processes of monitoring, identifying, and transcribing, there is other circumstantial evidence relied on by the Crown in support of voice identification. The evidence may conveniently be summarized in the paragraphs following for each accused.

(i) Collin Grant

On 4 May 2010, Mr. Grant was arrested at 2743 Victoria Park Avenue, apartment #608, Toronto. He was found sleeping on a sofa in the living room. On a table at the head of the sofa, police officers located and seized a black LG cellular telephone. D.C. Hewson proved the number of the telephone to be 647-567-4823. (LCN 1864). The evidence is that Mr. Grant used this telephone line throughout the Project.

In addition to its proximity to him, there is other evidence which, if accepted, could allow the trier of fact to find that Mr. Grant was the owner and user of the cell phone with number 647-567-4823. For example, the telephone contained several photographs of Mr. Grant and his gang tattoos (matching Toronto Police Service RICI photographs and Mr. Grant's description of his tattoos in earlier calls). It also contained a video clip of his co-accused, Baldwin Junius identifying himself as 'Droopy'. (s.540(7) materials)

In LCN 0137, the caller self-identifies as Collin Grant. He leaves a message for a person and gives his number as 647-567-4823. This is an example of a self-identifying call placed in the voice library.

There is also the evidence of D.C. Davies. While acting in an undercover capacity, he purchased drugs from Mr. Grant. He set up the purchase by phone and spoke with Mr. Grant directly. D.C. Davies listened again to the telephone calls between himself and Mr. Grant setting up this purchase. D.C. Davies identified both his voice and Mr. Grant's voice. D.C. Davies viewed a photographic line up and identified Mr. Grant as the person he had spoken with and who had sold him the crack cocaine. D.C. Davies also identified Mr. Grant in court.

There is therefore a considerable body of evidence which, if believed, could allow a jury to find that Mr. Grant's voice is heard in LCN 0137 and that he was the user of a phone with the number 647-567-4823.

(ii) Baldwin Junius

The Crown alleges that Mr. Junius used the telephone line 647-206-8428 throughout the Project. I am unaware of there being a self-identifying call attributed to Mr. Junius. However, there is circumstantial evidence which, if believed by the jury, could support an inference that Mr. Junius was the user of a phone attached to the number 647-206-8428.

An example of that circumstantial evidence includes a video clip found in Mr. Grant's phone where Mr. Junius identifies himself as "Droopy". There are several intercepted communications where the user of 647-206-8428 identifies himself as "Droopy" or "Droops". See, for example, LCN 0171. There are other intercepted communications where the user of 647-206-8428 responds to the name "Droopy". See, for example, LCN 0988. According to Mr. Eccleston, these are the type of call placed in the voice library to serve as a resource for the monitors.

If believed, this evidence would allow a reasonable and properly instructed jury to find that Mr. Junius was the user of a phone with the number 647-206-8428 and that his voice is heard in the intercepted communications noted above.

(iii) Troy Chemin

In the intercepted communication identified in the wave files as LCN 2067, the caller self-identifies as "Paco", with an address of 8 Peggy Court, Brampton. The person called in the intercepted communication identified in the wave files as LCN 0538 responds to the name of "Paco Chemin". The evidence of Mr. Eccleston was that these were the type of call placed in the voice library. They could be used to compare and identify the voice in other calls.

Numerous documents were seized in the search of 4673 Jane Street, Apartment No. 519, Toronto, when Mr. Chemin was arrested. They appear as "scanned documents" in the s. 540(7) evidence concerning Mr. Chemin. It will be open to the trier of fact to infer from them that "Paco" and "Paco Chemin" and "Troy Chemin" are the same person. It will be open to the trier of fact to infer from the scanned documents that Mr. Chemin was, with Mr. Shehai, an owner of the property at 8 Peggy Court, Brampton. It will be open to the trier of fact to infer from the evidence that the person speaking and self-identifying as "Paco Chemin" is the person speaking in the calls attributed to Troy Chemin.

(iv) Jamal Shehai

There are no definitive self-identification intercepted communications involving Mr. Shehai. Nevertheless, in LCN 1484, a male voice responds to the name "Jamal" in an intercepted communication attached to Bell (landline) number 416-221-1381. According to Mr. Eccleston, another example of the steps taken to identify a voice is the assessment of events in close proximity to one another. In the intercepted communication identified in the evidence as LCN 0459, at 19:01:52 (say, 7:02 p.m.) on February 12, 2010, a male speaks to Mr. Junius. He asks, "Where are you guys?" Mr. Junius tells him that the guys are at "Jack Astor's". The male responds, "I will be in there shortly." Messrs. Chemin, Grant and Junius were under surveillance at the time of the above intercepted communication; they were at Jack Astor's Restaurant. Within six minutes of the male saying, "I will be in there shortly", Mr. Shehai is observed exiting his motor vehicle, walking to the front door, and looking around before he enters Jack Astor's Restaurant.

These calls were placed in the voice library for Mr. Shehai. They were available to the monitors to guide them in identifying his voice in other intercepted communications.

(v) Tresor Mukenge and Duvals Smith

The same approach was followed with respect to Mr. Mukenge and Mr. Smith. Given their consent to an order to stand trial, it is not necessary to detail that approach at this time.

It was agreed by the Crown and counsel to Mr. Shehai, for the purposes of the preliminary inquiry, and for the purposes of the case against Mr. Shehai only, that the voices in the intercepted communications attributed to Messrs. Mukenge and Smith are correctly attributed to them when they are speaking to Mr. Shehai.

(d) Position of the Parties

(i) Position of the Defence

Counsel for the accused persons vigorously oppose a finding that attributes to their clients any of the intercepted communications admitted into evidence in the s. 540(7) materials. The principal submissions were made by Mr. Granek on behalf of his client, Mr. Grant. Mr. Granek's submissions were adopted by other counsel and form part of their submissions on behalf of their clients. His submissions are essentially three-fold.

First, it was submitted by Mr. Granek that the Crown has failed to provide evidence on the issue of voice identification as was required by the court's ruling in the s. 540(7) application. See, R. v. Junius, August 12, 2011, unreported, French, J. (O.C.J.). Mr. Granek submits that Mr. Eccleston did not check with the monitors and proofers, individually, to confirm that they followed the described process in each intercepted communication relied on by the Crown.

Mr. Eccleston should have spoken to the monitors in each intercepted communication relied on by the Crown, confirmed that they followed the process, and that they confidently attributed the intercepted communication to the particular accused involved. That was not done and the evidence should be excluded.

Second, the Crown has not offered expert opinion evidence as it must do. Here, Mr. Eccleston is asked to compare a sample intercepted communication, wherein the accused person identified himself, with voices heard on other intercepted communications. That requires expert opinion evidence. This is not a situation where a witness has personally heard the accused speak and then compares that recollection to a recording of the intercepted communication. The evidence called by the Crown does not satisfy the standards set by the Ontario Court of Appeal in R. v. Williams, [1995] O.J. No. 1012.

Third, the defence submits that the evidence tendered by the Crown through Mr. Eccleston should be excluded. He has not spoken with any of the accused persons. He is not and has not been qualified as an expert. There was no proper foundation for his evidence. His purported identification of the voices of the accused persons is nothing more than unsafe in-dock identification. It is highly prejudicial and should be excluded.

(ii) Position of the Crown

The Crown submits that, in its s. 540(7) ruling, the court required some evidence of a process. This is a preliminary inquiry, not a trial. The burden on the Crown is simply to establish some evidence of voice identity that would be sufficient for the eventual trier of fact to consider. The Crown has met that burden. Mr. Eccleston has provided evidence of that process. There is therefore some evidence to satisfy the test that was set out in the s. 540(7) ruling. For purposes of the preliminary inquiry, transcripts can be relied on to the extent that they purport to identify speakers.

The Crown relies on R. v. Gyles, [2005] O.J. No. 5513, and R. v. Wu, [2010] A.J. No. 1327.

The Crown submits that the Ontario Court of Appeal, in R. v. Williams, [1995] O.J. No. 1012, did not lay down an absolute rule that the Crown was required to produce people who were experts when calling evidence with respect to intercepted communications. Counsel for the accused persons are attempting to erect artificial barriers to the reception of the evidence when in fact, we rely upon triers of fact to attach such weight to the evidence as they think appropriate in order to arrive at the appropriate decision. It is for the trier of fact, at trial, to decide the ultimate considerations as to the quality of the process used and whether it was sufficient to attribute the intercepted communications to the accused persons.

Based on Mr. Eccleston's evidence, the Crown submits that there is evidence before the Court, based on which a reasonable jury, properly instructed, could find that the names of the parties appearing in the call transcripts accurately identify the speakers.

(e) Analysis and Findings

Notwithstanding the very able submissions of Mr. Granek, I am unable to accede to the position of the defence. There are several reasons for my being unable to do so. Principal among them are that this proceeding is a preliminary inquiry, not a trial and, in my view, the Crown has met the burden imposed in the court's ruling in the s. 540(7) application. In my view, this court's ruling in the s. 540(7) application explained the context and prescribed the rules that are first and foremost responsive to this issue. It will be helpful to recall here certain parts of the court's ruling in the s. 540(7) application:

This proceeding is a preliminary inquiry. It is not concerned with the guilt or innocence of the accused persons.

The purposes of subsections 540(7), (8) and (9) of the Criminal Code were to modernize criminal procedure, reduce the time it takes to bring criminal cases to trial and narrow the scope of preliminary inquiries. See, R. v. P.M., supra.

The introduction of s.540(7) was not intended by Parliament to eliminate the discovery function of preliminary inquiries or to convert them into a paper hearing. See, R. v. Sonier, [2005] O.J. No. 1234; R. v. Francis, supra (SCO, Ratushny J.).

Subsection (7) allows the Crown to apply to tender information to satisfy the test for committal in a preliminary inquiry that would not be admissible according to trial evidentiary rules but that the preliminary inquiry justice considers "credible or trustworthy in the circumstances of the case". See, R. v. Francis, supra (SCO, Ratushny J.).

The legislation requires the preliminary inquiry justice to screen the evidence. In so doing, the preliminary inquiry justice has broad discretion as to how to proceed. However, it is not intended that the preliminary inquiry justice usurp the role of the trial court be determining, for example, the ultimate issue of credibility. See, R. v. Francis, supra (SCO, Ratushny J.).

The screening function in the s.540(7) analysis requires a determination whether the tendered information is "credible or trustworthy in the circumstances of the case." This has been judicially interpreted to mean that the information sought to be introduced under subsection (7) must have at least a prima facie air of reliability to allow it to be admitted on the preliminary inquiry. It need not be sufficient to base a conviction upon but it must warrant consideration as to whether there is some evidence for a jury to properly consider at trial. See, R. v. Trac, [2004] O.J. No. 5469; R. v. McCormick, 2005 ONCJ 28, [2005] O.J. No. 390; R. v. Francis, supra (SCO, Ratushny J.).

A preliminary inquiry justice has jurisdiction to prescribe terms and conditions for the admissibility of some or all of the 540(7) records and documents. See, R. v. Francis, supra, per Justice Ratushny, and R. v. Francis, supra, per Justice Wong.

(See, R. v. Junius, supra, at pages 27-32)

Against that background, the court ruled that the s. 540(7) intercepted communication materials were admitted in evidence subject to the Crown calling evidence to satisfy the court "that the persons identified on the call summaries and the transcripts are the persons speaking on the intercepted communications". Specifically, the court ruled that:

...the Crown is required to lead some evidence to establish how the initial voice identification was made. Subsequent caller identification can be hearsay so long as the proper foundation is laid and the evidence is trustworthy or credible.

(See, R. v. Junius, supra at page 34)

The evidence of Mr. Eccleston and the earlier evidence of D.C. Clarke describe the process that was followed "to establish how the initial voice identification was made". Reduced to the very simplest, that involved either self-identification, inferences arising from the possession of a phone, inferences from events in close proximity to one another, inferences arising from surveillance and, like circumstances supporting an inference that the accused was a speaker in a particular intercepted communication. Mr. Eccleston also described the processes that were followed to ensure proper caller identification in the subsequent intercepted communications and to ensure that the callers were properly identified in the transcripts. I am satisfied that the Crown has met its burden in proving that the persons identified on the call summaries and the transcripts are the persons speaking or communicating in the intercepted communications.

There are other reasons for my being unable to accept the submissions of the defence on this issue. For example, I listened to the self-identifying calls and compared those voices to the voices heard in other calls alleged to involve the same accused. The voices are sufficiently recognizable that there is some evidence for the eventual trier of fact to consider. Would the law permit that? In my view, based on a consideration of the authorities offered, it does.

In R. v. Williams, [1995] O.J. No. 1012, the Ontario Court of Appeal was concerned with evidence of voice identification. The evidence in issue was that of an undercover police officer identifying the voice of the accused as a speaker on numerous intercepted communications. The undercover officer had spoken with the accused, in person and over the phone, on numerous previous occasions. The court noted its decision in R. v Parsons (1977), 17 O.R. (2d) 465 in the context of intercepted communication. In Parsons, Dubin J.A., speaking for the court, held that once it is shown that the interception was carried out pursuant to a lawful authorization and in the manner authorized, the fact that the evidence falls short of identifying the voice does not render the interception inadmissible. It becomes a question for the trier of fact to determine the identity of the voice. In Williams, supra, Finlayson J., speaking for the court, rejected rigid or definitive tests for the acceptance of evidence of voice identification. In Williams, the court rejected the submission that the undercover officer was giving opinion evidence.

In R. v. Gyles, [2005] O.J. No. 5513, a trial judge compared the accused's voice in court with the voice heard on intercepted communications. The trial judge concluded that it was the accused's voice on the tapes. The Ontario Court of Appeal held that the trial judge did not err in comparing what she heard in court to what she heard on the tape to determine whether the accused's voice was on the tapes. The Court of Appeal affirmed that triers of fact can appropriately make voice comparisons in appropriate circumstances.

Similarly, in R. v. Wu, [2010] A.J. No. 1327, the Alberta Court of Appeal considered circumstances of voice comparison. The police obtained samples of the voices of the accused during interviews with them. The samples were used at the trial to identify the accused in the intercepted communications. In Wu, a police officer who assembled the voice identification evidence and prepared the transcripts was permitted to give voice comparison evidence. The police officer had no expertise in audiology and voice recognition and had no specific training in that field. However, he listened several times to the police interviews of the accused persons. He then compared those voices to the voices heard in the intercepted communications. The trial judge also listened to the tapes. With respect to the evidence of the police officer, the Alberta Court of Appeal found that there was an 'opinion evidence' character to his evidence of voice identity and thus his evidence was subject to the gate-keeper assessment. That evidence was ultimately a matter of human experience. The Alberta Court of Appeal held that the trial judge did not err in law in holding that, as the trier of fact, it was his role to decide the weight of the evidence before him as to who was talking in the recordings. Nor did he err in law in holding that he was entitled to use his own senses to evaluate the evidence of voice identification.

Accepting that I may do so based on R. v. Williams, supra, R. v. Gyles, supra, and R. v. Wu, supra, I listened to the self-identifying calls attributed to Mr. Grant and to Mr. Chemin. I listened to the calls in the voice library attributed to Mr. Junius and Mr. Shehai, as described above. I listened to calls attributed to the accused in several of the alleged substantive offences. In my view, one can compare and identify the voices in this manner. I am satisfied that this is some evidence upon which a reasonable jury, properly instructed, could find that the persons identified on the call summaries and the transcripts are correctly identified as the persons speaking or communicating in the intercepted communications.

I note in these Reasons that Mr. Eccleston gave evidence identifying the voices of the accused persons in various intercepted communications. He did so on the understanding that defence counsel could reserve to closing submissions their objections to this evidence. In the result, I have not found it necessary for the purposes of the preliminary inquiry to rely on this aspect of Mr. Eccleston's evidence. I therefore decline to rule on the objection to this aspect of his evidence. It may be that it should be admitted and considered, based on R. v. Wu, supra. I leave that issue for determination at the trial.

I turn now to the analysis of the charges against the accused. In so doing, I proceed in each charge on the basis that a reasonable and properly instructed jury could find that the voices are correctly attributed in the intercepted communications.

PART 5 – ANALYSIS OF THE CHARGES OTHER THAN THE CRIMINAL ORGANIZATION CHARGES

The Crown asks that the accused persons be ordered to stand trial on charges based on the evidence heard in the preliminary inquiry rather than the charges set out in the Informations. Appendix "A" to these Reasons is a table that summarizes the accused, the charges for which the Crown asks that they be ordered to stand trial, the date of the alleged offence, the relevant sections of the Criminal Code and the Controlled Drugs and Substances Act, and the disposition.

Appendix "B" to these Reasons contains the text of the relevant sections of the Criminal Code and the Controlled Drugs and Substances Act.

It will be recalled from Part 3, above, that each offence in the Criminal Code and the CDSA has its own essential elements. For most of the charges, the element in issue for purposes of the preliminary inquiry was identification. That is, was it the accused speaking in the intercepted communications said to make out the charge? For purposes of the preliminary inquiry, and for the reasons given in Part 4 above, I have found that the persons identified on the call summaries and the transcripts admitted in evidence are the persons speaking or communicating in the intercepted communications. For purposes of the preliminary inquiry, the element of identification is no longer in issue.

In several of the charges, the issue was the meaning of coded language. In those instances, the Crown relies on the opinion evidence of D.C. Rozario on the meaning of coded language in relation to drugs and Officer Press on the meaning of coded language in relation to firearms and ammunition. In those instances, the issue often reduced itself to whether the meaning given in evidence by the experts was some evidence of the essential elements of a forbidden act (the actus reus) or a guilty mind (the mens rea) in the charge under consideration.

As noted in the Introduction, this proceeding is complicated by the presence of 16 criminal organization charges alleged against the accused. The analysis of those charges is left to Part 6, following.

I turn then to the accused in the order in which they appear in Appendix "A".

(1) Collin Grant

The Crown submits that Mr. Grant be ordered to stand trial on Charge Nos. 1 through 15 in Appendix "A".

Four of those charges (Nos. 1, 5, 8, and 10) involve an alleged criminal organization offence. Those charges are considered in Part 6, following.

The remaining charges against Mr. Grant may be conveniently considered if grouped chronologically. They would be as follows:

• (a) Charge Nos. 2 – 3: The trafficking charges in the period January 28 – May 3, 2010.
• (b) Charge No. 4: Counselling the trafficking of a firearm on February 5, 2010.
• (c) Charge No. 6: The trafficking ammunition charge of March 4 and 5, 2010.
• (d) Charge No. 7: Trafficking ammunition on March 26, 2010.
• (e) Charge No. 9: The trafficking firearm charges of April 16, 2010.
• (f) Charge No. 11: Conspiracy to traffic in cocaine on March 6, 2010.
• (g) Charge No. 12: Conspiracy to attempt to obstruct justice on March 21, 2010.
• (h) Charge No. 13: Trafficking in ammunition on March 27 – 30, 2010.
• (i) Charge No. 14: Trafficking in a firearm during the period April 2 – 21, 2010.
• (j) Charge No. 15: Trafficking in cocaine April 26, 2010.

A brief discussion and analysis of each group of charges follows:

(a) Charge Nos. 2 – 3: The trafficking charges in the period January 28 – May 3, 2010

Mr. Grant does not challenge his committal to trial on Charge Nos. 2 and 3, Appendix "A".

(b) Charge No. 4: Counselling the trafficking of a firearm on February 5, 2010

This charge arises from an intercepted telephone communication on February 5, 2010. The intercepted communication is identified in the evidence as LCN 2015. Mr. Grant received a call from an unknown male. Mr. Grant asked him, "You have the girl?" the unknown male replies, "Yeah." Mr. Grant instructs him to bring "her" here; he says, "nobody is here bro, bring me my thing dawg."

Officer Michael Press provided the opinion that Mr. Grant was referring to a firearm.

The position of the Crown is that the counselling offence committed is the substantive counselling offence under s. 464 of the Criminal Code. That section is reproduced in Appendix "B" at part 11. The prohibition against trafficking in a firearm appears in s. 99 of the Criminal Code. That section is reproduced in part 6 of Appendix "B".

The essential elements of the offence of counselling under s. 464(a) are that the accused counselled a specific person to commit a specific offence and that the person counselled did not commit the offence. There are several ways in which one person may counsel another to commit a crime. "Counsel" means to advise or recommend a particular course of conduct. "Counsel" also includes procuring, soliciting, and inciting. Counselling may involve a lengthy course of persuasion, or it may be brief. There may be many discussions or a few contacts.

Counselling is complete when the accused person solicits or incites the third party to commit the offence counselled, but only if the accused does so in one of the ways described. The final element is that the person counselled did not commit the offence counselled.

There must be a recipient to the act of counselling since, otherwise, no one could have been counselled. However, it is not necessary that the recipient be influenced nor, indeed, that the recipient had any intent to commit the offence.

A conviction can be imposed where the accused "knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused's conduct". See, R. v. Hamilton, 2005 SCC 47, [2005] 2 S.C.R. 432 (S.C.C.). See also Manning, Mewett & Sankoff, Criminal Law, 4th Ed., Lexis Nexis; also, Canada Inc. 2009, at 323-325.

Considering the elements of the offence summarized above, the opinion of Officer Press and the directions of Mr. Grant to the person counselled to transport the firearm to him, there is some evidence upon which a reasonable jury, properly instructed, could convict. He is ordered to stand trial on this charge.

(c) Charge No. 6: The trafficking ammunition charge of March 4 and 5, 2010

The prohibition against trafficking ammunition is included in s. 99 (1) (b)of the Criminal Code. That section is reproduced in Appendix "B" at part 6. The element of "trafficking" in criminal law was discussed in Part 3, above. The necessary elements of the offence in s. 99(1)(b) applied to the case before the Court appear to be that the accused:

• trafficked (transferred or offered to transfer or sell);
• ammunition;
• knowing that the person is not authorized to do so; and
• intended to traffic.

In LCN 1110, on March 4, 2010, an unknown male asks Mr. Grant about the 'thing' that he has and the 'thing' that it uses. The unknown male asks, "...yow, you can get a box of those?" Mr. Grant responds, "I have some. I could chip you some." The unknown male asks, "...how much you chip those for?" and Mr. Grant eventually replies, "...five, just bring me fifty." The two arrange to speak the next day. In LCN 1126, on March 5, 2010, Mr. Grant received a call from the unknown male who asks, "...you remember those cockles (ph) I was asking you about?" Mr. Grant says, "Yeah", and the unknown male goes on to say, "...we're gonna do * something * ." (Asterisks at the beginning and end of a word or sentence in the transcripts mean that the word or sentence has been translated into English.)

Officer Press opined that the two were discussing the supply of ammunition.

The evidence is far from clear. However, if believed, there is some evidence upon which a reasonable jury, properly instructed, could find that Mr. Grant agreed to transfer or sell, and thus, traffic ammunition to the unknown male. He is ordered to stand trial on this charge.

(d) Charge No. 7: Counselling the trafficking of ammunition on March 26, 2010

The relevant sections of the Criminal Code and the essential elements are the same as for Charge No. 4, above.

The evidence concerning this charge arises from three intercepted communications of March 26, 2010 and the opinion of Officer Press. In LCN 2315, LCN 2316, and LCN 2329, Mr. Grant is speaking with an unknown male.

Officer Press expressed the opinion that Mr. Grant's use of the word "shoes" was a reference to firearms. Officer Press was also of the opinion that Mr. Grant's use of the word "eggs" was a coded term for ammunition; specifically cartridges. His use of the word "grains" in LCN 2329 is a reference to ammunition.

Were I the trial judge, these intercepted communications might serve better to illustrate the background to, and breadth of, Mr. Grant's activities than to prove an offence. However, as a justice presiding at a preliminary inquiry, my jurisdiction is to assess whether there is some evidence upon which a reasonable jury, properly instructed, could find that Mr. Grant was involved in the transfer of ammunition.

It may be clear to the jury, based on the intercepted communications and the opinion of Officer Press, that Mr. Grant is speaking of ammunition, most probably his own ammunition. It is much less clear that he is "trafficking". However, that will be for the jury to decide. He is ordered to stand trial on this charge.

(e) Charge No. 9: The trafficking firearm charge of April 16, 2010

The relevant section of the Criminal Code and the essential elements are the same as set out for Charge No. 6, above.

The particular evidence with respect to this charge arises from an intercepted telephone communication on April 16, 2010. The intercepted communication appears in the evidence as LCN 2526.

An unknown male telephoned Mr. Grant and inquired whether he still had "that thing?" The unknown male asked, "you want … still wanna sell that thing?... you still want to sell that thing?" Mr. Grant replies, "Probably…is it in the circle? If it's not gonna be in the circle, I'm not doing it. … I rather just kept it in the circle; people I trust, you know".

One must always keep in mind that it is the totality of the evidence that is to be considered. Considered in isolation, a single intercepted communication might seem very vague. However, when considered in the context of the background and breadth of Mr. Grant's activities, evident from the intercepted communications as a whole, a jury could find the same communication quite clear. With respect to this communication, Officer Michael Press expressed the opinion that Mr. Grant and the unknown male were using the words, "that thing" to refer to a firearm.

There is in my view some evidence upon which a reasonable jury, properly instructed could find that Mr. Grant and the unknown male were discussing a firearm. It is much less clear that Mr. Grant agreed to traffic (transfer) the firearm. However, there is some evidence upon which the jury can decide the issue. Mr. Grant is therefore ordered to stand trial on this charge.

(f) Charge No. 11: Conspiracy to trafficking in cocaine on March 26, 2010

The offence of conspiracy is set out in s. 465 of the Criminal Code. The section is reproduced in Appendix "B" at part 12.

The Crown must prove three essential elements in order to establish the offence of conspiracy. They are:

i. that there was a conspiracy between two or more persons; ii. that the conspiracy was to commit the indictable offence alleged; and iii. that the accused was a member of that conspiracy.

The first element requires proof that there was a conspiracy between two or more persons. A conspiracy is an agreement between at least two people to commit a crime. The essence of a conspiracy is the agreement. An agreement is the coming together or meeting of the minds of two or more people who have a common object or purpose. Each person intends and expresses, by words, action, or both, the same purpose or object. The agreement does not have to be something formal, like a written document, or cover every detail about how the agreement is to be carried out and by whom. The agreement does not have to say how long it is to continue, nor does it have to be successfully carried out. The Crown does not have to prove that everyone who participated in the agreement knew everyone else, or for that matter that everybody came together at one time and place to put the agreement together. It does not matter that everyone who participated in the agreement has not been charged, or has not been named or described in some other way in the Information.

The second element requires proof that the conspiracy was to commit an indictable offence. This element is concerned with the purpose or object of the agreement. What crime did the members of the conspiracy agree to commit? Was it the indictable offence alleged? The crime of conspiracy is complete when the members agree to commit the crime. It is not necessary for the Crown to prove that the crime itself, the indictable offence alleged, was actually committed. To answer this question, one must consider all the circumstances, including but not only what each person alleged to be a member of that conspiracy did or did not say and did or did not do as well as how he did or did not do it.

The third element requires proof that the accused was a member of the conspiracy. There are two steps to decide this question. First, one must consider what the accused said and did. The second, which one only considers if satisfied from the particular accused's own words and conduct that he was probably a member of the conspiracy, requires one to consider what the other members of the conspiracy said and did in furtherance of their agreement. See, R. V. Root, 2008 ONCA 869, [2008] O.J. No. 5214 at paragraphs 65 – 72. See also, Manning, Mewett & Sakoff at pages 309 – 312.

The foundation for this charge of conspiracy to traffic in cocaine lies in an intercepted telephone communication of March 6, 2010 and the expert opinion of D.C. Rozario.

The intercepted communication appears in the evidence as LCN 1143. The call involves an unknown female identified by Mr. Grant as "Jada". The thrust of the call is that "Jada" wants to get into the business of trafficking in cocaine. She wants Mr. Grant to teach her the business. It is open to a jury to find that Mr. Grant and "Jada" agreed to work together.

D.C. Rozario opined that Mr. Grant and "Jada" were discussing the selling of cocaine.

Given the nature of the call and the opinion of D.C. Rozario, a reasonable jury, properly instructed, could find that Mr. Grant and "Jada" conspired, agreed, to traffic cocaine. Mr. Grant is ordered to stand trial on this charge.

(g) Charge No. 12: Conspiracy to attempt to obstruct justice on March 21, 2010

The applicable section of the Criminal Code and the essential elements of conspiracy are as set out for Charge No. 11 immediately above.

The Criminal Code provisions concerning obstructing justice are set out in part 8 of Appendix "B". It appears from s. 139 (2) that every one who attempts in any manner other than a manner described subsection (1) to "…obstruct, pervert or defeat the course of justice" is guilty of an offence.

This charge arises from an intercepted telephone call initiated by an unknown male to Mr. Grant's phone. The unknown male initially speaks to Baldwin Junius and the phone is then passed to Mr. Grant.

This intercepted communication appears in the evidence as LCN 1317. After the phone is passed to Mr. Grant, the unknown male says that he is "stressed out"; he wants Mr. Grant's help. He tells Mr. Grant that he had "talked to that little short informer bitch". The unknown male tells Mr. Grant that his "wifey" would meet Mr. Grant and "drive [him] to meet that chick". The unknown male says to Mr. Grant, "I just want you to go talk to her and * tell * her exactly what to say". Mr. Grant agrees, "…All right, that's no problem… I'll deal with that."

The Crown submits that, given the references to "that little informer bitch", there is evidence based on which a reasonable jury, properly instructed, could find that, in agreeing to "…talk to her and * tell * her exactly what to say…", Mr. Grant conspired with the unknown male to attempt to obstruct the course of justice.

The evidence available to the Crown in support of this charge is far from compelling. However, there is some evidence upon which a reasonable jury, properly instructed, could, not must, infer that the call was in reference to a court proceeding and that Mr. Grant agreed to tell a witness what to say. He is therefore ordered to stand trial on this charge.

(h) Charge No. 13: Trafficking in ammunition on March 27 – 30, 2010

Counsel to Mr. Grant does not contest that his client be ordered to stand trial on this charge.

While considering some of the specific charges in Appendix "A", it is necessary to have an appreciation of the totality of the evidence. Therefore, even though it is conceded that there be an order to stand trial, the evidence in support of the charge is summarized below.

This charge arises from intercepted telephone communications between Mr. Grant and an unknown male. The intercepted telephone communications were on March 27 and 30, 2010. The call of March 27, 2010 appears in the evidence as LCN1406 and the call of March 30, 2010 appears in the evidence of LCN1424.

In the first call, the unknown male inquires about the price of a "rivy", a "rizzy" and a "snuzzub". Mr. Grant agrees to make inquiries into the price. In his report, Officer Michael Press provided the opinion that Mr. Grant and the unknown male were referring to a revolver and a snubnose firearm.

In the first call, the unknown male also solicited from Mr. Grant "two-fifths grains". Mr. Grant agreed to provide them. In his opinion, Officer Press stated that Mr. Grant and the unknown male were referring to 25 calibre ammunition.

In the second call, being March 30, 2010, the unknown male again called Mr. Grant inquiring into the price. Mr. Grant advised the unknown caller that he would obtain the prices later in the day. The unknown caller told Mr. Grant he was interested in a "rivy". Mr. Grant made inquiries about the size. Officer Press opined that Mr. Grant and the unknown male were discussing a revolver handgun.

Given the intercepted communications, and the opinion evidence of Officer Press, there is some evidence upon which a reasonable jury could reasonably infer that Mr. Grant had agreed to supply the unknown male with ammunition. Mr. Grant is therefore ordered to stand trial on this charge.

(i) Charge No. 14: Trafficking in a firearm during the period April 2 – 21, 2010

Counsel to Mr. Grant does not contest that his client be ordered to stand trial on this charge.

This charge arises from four intercepted telephone communications on April 2, 3, 14, and 21, 2010. They appear in the evidence as LCN 1468, LCN 2409, LCN 1618, and LCN 1648, respectively.

The picture of this offence arises from the first call. An unknown female, "Amanda", tells Mr. Grant that she has a "problem" and needs "to get [her] hand on a hand-thing." She tells Mr. Grant that "cash is no problem". Mr. Grant agreed to meet "Amanda" in person. In the third call, Amanda tells Mr. Grant that her situation is becoming "serious" and that she needs to see him as soon as possible.

Officer Michael Press provided the opinion that Mr. Grant and "Amanda" were discussing a handgun. As with all of these calls, when considered in the context of the totality of the evidence heard at the preliminary inquiry, they provide a more fulsome basis for the opinion of Officer Press.

There is evidence upon which a reasonable jury, properly instructed, could find that Mr. Grant trafficked in a firearm. He is ordered to stand trial on this charge.

(j) Charge No. 15: Trafficking in cocaine on April 26, 2010

Counsel to Mr. Grant does not contest that his client be ordered to stand trial on this charge.

The evidence of D.C. Davies (August 15, 2011) was that, while acting in an undercover capacity, he spoke by phone with, and subsequently met, Mr. Grant near the corner of Exford Road and Birchmount Road in Scarborough. Mr. Grant provided him with 1.4 grams of crack cocaine in exchange for $120.00 in cash.

D.C. Davies listened to the telephone calls between himself and Mr. Grant setting up this purchase. D.C. Davies identified both his voice and Mr. Grant's voice. D.C. Davies viewed a photographic line up and identified Mr. Grant as the person who had sold him the crack cocaine. D.C. Davies also identified Mr. Grant in court.

There is evidence upon which a reasonable jury, properly instructed, could find that Mr. Grant trafficked cocaine to the undercover officer. He is ordered to stand trial on this charge.

(2) Baldwin Junius

The Crown submits that Mr. Junius be ordered to stand trial on Charge Nos. 16 through 25 in Appendix "A".

Three of those charges (Nos. 16, 21, and 23) involve an alleged criminal organization. Those charges are considered in Part 6, following.

The remaining charges against Mr. Junius may be conveniently considered if organized chronologically in groups. They would be as follows:

• (a) Charge Nos. 17 – 18: Trafficking cocaine and trafficking marijuana in the period January 28 to May 3, 2010;
• (b) Charge No. 19: Trafficking in ammunition in the period February 22 to May 2, 2010;
• (c) Charge No. 20: Counselling the commission of the offence of assault on February 25, 2010;
• (d) Charge No. 22: Counselling the commission of the offence of trafficking in marijuana on March 15, 2010;
• (e) Charge Nos. 24 – 25: Two charges of possession of cocaine for the purpose of trafficking on May 4, 2010.

A brief discussion and analysis of each group of charges follows:

(a) Charge Nos. 17 – 18: Trafficking cocaine and trafficking marijuana in the period January 28 to May 3, 2010

The definition of "trafficking" is found in s. 2(1) of the CDSA. The offence of trafficking in a substance appears in s. 5(1) of the CDSA. Those sections are reproduced in parts 18 and 19, respectively, of Appendix "B".

The essential elements of the offence of trafficking were summarized in Part 3(4) above.

The Crown relied on a multitude of intercepted communications in the period January 28 to May 3, 2010, in order to prove these two charges against both Mr. Grant and Mr. Junius. Mr. Grant subsequently did not oppose an order to stand trial on the comparable charges.

The intercepted communications involve numerous speakers, including Mr. Junius. Rather than regurgitating each call, the following Table will serve to highlight the relevant evidence in these intercepted communications. However, for the purpose of deciding whether Mr. Junius should be ordered to stand trial on these charges, I have considered here only the intercepted communications involving Mr. Junius. The intercepted communications involve street and coded language in relation to drugs. The Crown relies on the opinion evidence of D.C. Rozario to explain the meaning. The Table follows:

DATE (2010)	LCN #	PARTIES	TERMS USED	ROZARIO OPINION
February 15	0508	Junius & Grant	Kush BC Dime	marijuana marijuana from British Columbia $15
February 18	2092	Junius & Grant	The ink The beautiful	crack cocaine that was being dyed
March 5	1111	Grant & Karam	Chip me half a chizzle (ph) Kush	Believed to be 1.75 grams of cocaine marijuana
March 6	2148	Grant & Karam	Dinner	Drugs
March 7	1150	Grant & Karam	Chip a half a chizzle (ph) Whose food... Whose dinner...	Half a ball of crack cocaine Drugs
March 12	1213	Junius & Karam	Reference to bags in the freezer	Reference is to a "stash house"
March 12	1214	Junius & Karam	Reference to, "I left my things in the freezer"	Reference is to a "stash house"
March 14	1233	Junius & Karam	Kush The pink shit Cubes	marijuana crack cocaine
April 3	1476	Grant & Junius	Weed Kush The best thing	marijuana marijuana Best crack cocaine
April 4	2413	Grant & Junius	Four nip	Believed to be an amount of crack
April 6	2423	Grant & Unknown Male (Billy)	Hall Ball/100	1.75 grams of crack cocaine - $100
April 6	1519	Grant & Junius	Weed Bounce	marijuana Ounce
April 9	2460	Grant & Junius	Kush	marijuana
April 20	2562	Grant & Karam	Kush	marijuana
April 24	1684	Junius & Unknown Female	...[G]et a three... … a thirty piece	$30 of crack cocaine
April 29	1743	Junius & Grant	Dinner	Has customers
April 29	1744	Junius & Grant	Bring a legit of crack cocaine	crack cocaine

The essential submission of the Crown in relation to these charges is that an individual intercepted communication, considered in isolation, may seem of little value in proving the charges alleged. However, when the intercepted communications are considered in their totality, a more clear picture emerges of Mr. Junius' activity.

D.C. Rozario reviewed and analysed the above-noted calls and provided opinion evidence, both in his report and in his oral testimony. His opinion of the meaning of the coded terms used appears in the Table above, right column.

If believed, the evidence in the intercepted communications in which Mr. Junius is a party and the opinion of D.C. Rozario would enable a reasonable jury, properly instructed, to find that Mr. Junius offered to sell and transport both cocaine and marijuana in the period January 28 to May 3, 2010. He is therefore ordered to stand trial on these charges.

(b) Charge No. 19: Trafficking in Ammunition in the period February 22 to May 2, 2010

This offence appears in s. 99(1) of the Criminal Code, reproduced in Appendix "B" at part 6. The essential elements of this offence were summarized above in the analysis of Charge No. 6 concerning Mr. Grant.

In support of this charge, the Crown relies on intercepted telephone communications between Mr. Junius and one Ashley Pickens. It appears from LCN 0833, February 22, 2010, that Mr. Junius called Ms. Pickens at 416-490-9963. He asked, 'Yow, can I put my ahm shoes in the garage right now?' Ms. Pickens replied, 'Ahm no, cars in the garage. … You have to park on the side.' Mr. Junius stated, 'I said my shoes.' Ms. Pickens responded, 'Oh. … Ahm, yeah you can bring them.' Mr. Junius advised, 'I'm not coming in, I'm just gonna put my shoes in the garage.' (LCN 0833, lines 64 – 80)

In his report of July 25, 2011, Officer Press provided the opinion that Mr. Junius, in the above call, was referring to a firearm. See, Press report, page 22.

On February 26, 2010, Mr. Junius received a call from Ms. Pickens. Throughout the conversation, Ms. Pickens referred to Mr. Junius as 'Droopy'. During the call, Mr. Junius stated 'Why can't you fucking respect the fact that I don't wanna talk you you? … You're burning up my battery and I don't have a charger. Why can't you respect that? And I'm walking around with thousands of dollars on me and nine times out of ten…my strap. What are you gonna tell me bro, when I go to fucking jail and I do seven years? Oh, I'm so sorry that I stressed you out that day?' (LCN 0985, lines 218 – 232)

In his report of July 25, 2011, Officer Press provided the opinion that Mr. Junius was advising that he carries a firearm. See, Press report, page 24.

Subsequently, on May 2, 2010, Mr. Junius received a call from a male identified as "CK". CK stated, '… yow, you see the same thing we were talking about there?' Mr. Junius replied, 'Yeah.' CK advised, 'Ahm my nigger said…just called me and said the man has…he has cheddar for it right now.' Mr. Junius asked, 'Okay what…how much does he…does he want?" CK answered, 'I think he say he has two five and…he's asking if there's…is it any…you know, there is things come with it? …I think he has twenty-five and he's asking if you know…if grains come with it.' Mr. Junius responded, 'Okay, okay, okay I'll talk to you later.' (LCN 1830, lines 50 – 84)

Officer Press provided the opinion that Mr. Junius and CK were discussing the supply of ammunition. See, Press report, pages 37 – 38.

In addition to the intercepted communications, there is evidence linking Mr. Junius with Ashley Pickens and with the residence at 7 Vega Starway, Toronto. A bullet was seized at 7 Vega Starway, Toronto in the search on take-down day on May 4, 2010.

Considering the above, and if believed, there is evidence capable of supporting an inference that Mr. Junius offered to supply ammunition to an unknown male. A reasonable jury, properly instructed, could find that Mr. Junius made an 'offer' to 'transfer', in other words, that he trafficked in ammunition. He is therefore ordered to stand trial on this charge.

(c) Charge No. 20: Counselling the commission of the offence of assault on February 25, 2010

The essence of this charge as alleged by the Crown is that on February 25, 2010, Mr. Junius spoke by telephone with an unknown person in jail and counselled (instructed) the unknown person to assault a number of rival gang members or persons who had shown disrespect to Falstaff. The counselling offence alleged is pursuant to s. 464 of the Criminal Code, reproduced in Appendix "B" at part 11. The essential elements were summarized above in the analysis of Charge No. 4 in relation to Mr. Grant.

The relevant intercepted communication appears in the evidence as LCN 0944. Mr. Junius received the call from the unknown male, by means of a three-way call with the unknown male's mother.

The unknown male tells Mr. Junius, 'I'm in the Hurst [Maplehurst Correctional Complex] right now' in relation to 'some bogus Fail to Comply shit'. They speak of other individuals known to them and who were present in different ranges within the facility.

In the course of their conversation, Mr. Junius asks the unknown male, 'okay fuck, you could do a little favour for me?' The unknown male responded, 'you need somebody to get dust?' (lines 213 – 221).

D.C. Oliver provided the opinion that the expression 'get dust' means 'assaulted'. (Oliver report, p. 70)

Mr. Junius then asks the unknown male:

'If you see Fangs, bust his face please.' (line 278) and later in the conversation,

'If you see Time Bomb, jump on his face too.' (lines 300 – 301) and later,

'If you see this little faggot named Chestnut … kick him in his fucking face if you see him.' (lines 321 – 349)

Throughout the above-noted portions of the conversation, Mr. Junius and the unknown male made reference to an apparent rivalry between 'staff' and 'town'. The opinion of D.C. Oliver was that Mr. Junius was advising the unknown male to assault either rival gang members or individuals who had shown disrespect to Falstaff. (Oliver report, p. 72)

If believed, there is some evidence that Mr. Junius, by directing the unknown male to assault another person, counselled the unknown male to commit the indictable offence of assault. There is some evidence upon which a reasonable jury, properly instructed, could find Mr. Junius guilty of Charge No. 20. He is therefore ordered to stand trial on this charge.

(d) Charge No. 22: Counselling trafficking in marijuana on March 15, 2010

The theory of the Crown in relation to this charge is that on March 15, 2010, Mr. Junius instructed an unknown female to take possession of, and hide, a quantity of marijuana to avoid detection by police.

The counselling offence is set out in s. 464 of the Criminal Code, reproduced at part 11 of Appendix "B". The definition of trafficking is in s. 2(1) of the CDSA, and the offence of trafficking marijuana is in s. 5(1) of the CDSA, found respectively at parts 18 and 19 of Appendix "B". The essential elements of the counselling offence were summarized above in the analysis of Charge No. 4 involving Mr. Grant. The essential elements of trafficking were summarized in Part 3, above.

The evidence in support of this charge is that, on March 15, 2010, Mr. Junius called an unknown female at 289-892-3962. (LCN 1235). Prior to the unknown female answering the phone, Mr. Junius is heard to say, 'I want this girl to put up my weed.' (line 41) After the unknown female answered, Mr. Junius asked her, 'Do me a favour, please?' I want you to put it down for me'. The unknown female asked Mr. Junius, 'Why don't you just make Kyle take it from me?' Mr. Junius replied, 'Because he's staying where I'm at and the boys are here. We can't like come over there in front of the boys, you know what I'm saying?' (lines 56 – 81)

Mr. Junius instructed the unknown female 'just put it in like a bag or something. …can you see number twenty-five…Remember how I made you…you went to Kyle's house? …you see the last house, number twenty-five? … Go in the backyard and hide it in the backyard.' The unknown female replied, 'The backyard of the last, last house?' Mr. Junius responded, 'Yeah, number twenty-five. …go to the front, make sure it says number twenty-five, then go to the backyard and hide it in the backyard there.' (lines 90 – 119)

Later that evening, Mr. Junius again called the unknown female at 289-892-3962. See, LCN 1238). He asked the unknown female, 'Where'd you put that?' The unknown female replied, 'Outside…underneath the black bag…where the glass is'. Mr. Junius said to the unknown female, 'I'm gonna find it right now.' She tells Mr. Junius, 'look underneath the glass.' Mr. Junius responded, 'All right, no problem, coming up there.' The unknown female asked, 'You found it?' Mr. Junius replied, 'Yeah, I'm coming up there.' (lines 86 – 98)

D.C. Rozario opined that Mr. Junius and the unknown female were discussing the hiding of marijuana, due to the presence of police. (Rozario report #2, p. 3)

There is therefore some evidence before the Court that Mr. Junius directed the unknown female to take possession of the marijuana and then hide it for him. Accordingly, there is evidence before the Court, based on which a reasonable jury, properly instructed, could find that, by instructing an unknown female to take possession, that is, to transfer the marijuana to herself, Mr. Junius counselled her to commit the indictable offence of trafficking. He is ordered to stand trial on this charge.

(e) Charge Nos. 24 – 25: Two charges of possession of cocaine for the purpose of trafficking on May 4, 2010

Mr. Junius does not contest his committal to trial on Charge Nos. 24 and 25 in Appendix "A". That is, two counts of possession of cocaine for the purpose of trafficking, both alleged to have occurred on May 4, 2010. It is of some assistance to appreciate the totality of the evidence. The evidence is therefore summarized below.

With respect to Charge No. 24, police officers executed a search warrant on May 4, 2010, at 7 Vega Starway, Toronto. In the front hall closet on the main floor, police located a Revenue Canada letter in the name of Baldwin Junius. The police located in the basement: a citizenship card, a Toronto Social Services letter, and a Canada Trust account statement in the name of Baldwin Junius; an eviction notice in the names of both Baldwin Junius and Ashley Pickens; a Bell Mobility telephone bill in the name of Ashley Pickens for the telephone number 416-490-9963; an electronic weigh scale; a 9mm round of ammunition; a Safari Land bullet proof vest; and, a black gym bag containing 23.66g of crack cocaine wrapped in a clear plastic bag, and a digital weigh scale. D.C. Rozario provided the opinion that the quantity of crack cocaine seized was for the purpose of trafficking.

With respect to Charge No. 25, Mr. Junius was arrested on May 4, 2010, at 4673 Jane Street, Apartment #519. This was the apartment of Mr. Chemin and Mr. Shehai. Mr. Junius was found lying on a sofa in the living room of the apartment. He was arrested and searched incident to arrest. The arresting officer, D.C. Awad, found 7.3g of pink crack cocaine and 3.5g of white powder cocaine in Mr. Junius' right pants pocket. Mr. Junius' passport was also found when he was arrested. The evidence of D.C. Rozario was that the quantity of cocaine found on Mr. Junius' person was for the purpose of the trafficking.

Mr. Junius is therefore ordered to stand trial on these two charges.

(3) Kyle Thompson

The Crown submits that Kyle Thompson should be ordered to stand trial on a charge that he trafficked marijuana and that he committed an offence for a criminal organization. The charges appear at Nos. 26 and 27 of Appendix "A", attached.

The definition of "trafficking" is found in s. 2(1) of the CDSA. The offence of trafficking in a substance appears in s. 5(1) of the CDSA. These sections are reproduced in parts 18 and 19, respectively, of Appendix "B".

The evidence in support of these charges is, for the most part, found in intercepted telephone communications attached to a phone bearing the number 647-338-2030.

The Crown agreed that, if the facts were not capable of supporting an inference that Kyle Thompson was the user of 647-338-2030, then both charges against him should fail.

The defence agreed that, if it was a reasonable inference that the number 647-338-2030 could be attributed to Mr. Thompson, then he would be appropriately ordered to stand trial on both charges.

Mr. Thompson is not identified by name in any of the intercepted communications attached to telephone number 647-338-2030. That notwithstanding, the Crown submits that it may be inferred that he was the user of 647-338-2030. The bases for the inference urged upon the court are four-fold.

First, a cell phone was located in the immediate vicinity of Mr. Thompson when he was arrested. The number attached to that cell phone was not the 647-338-2030 number involved in the alleged offences. It was a completely different number. It was 647-215-1831. Given the circumstances of Mr. Thompson's arrest and the search of his residence, a jury could reasonably infer that the phone in his immediate vicinity and attached to number 647-215-1831 was Kyle Thompson's phone. There were approximately 130 numbers programmed into the cell phone with number 647-215-1831. There was an entry for "father". There was an entry for "mother". There were two numbers attributed to "son": one was the 647-215-1831 number itself; the other was 647-338-2030, being the number used in the intercepted communications giving rise to Charge Nos. 26 and 27. The Crown submits that it may be inferred from this programming that Mr. Thompson was the user of 647-338-2030. That is, he is the "son" and programmed both of his phone numbers into the phone seized.

Second, the Crown submits that a document prepared by or obtained by the Toronto Police Service, and contained in the s. 540(7) materials, identifies Cedric Thompson as the subscriber to 647-338-2030, being the number used in these offences. A secondary subscriber to that number is identified as Kyle Thompson.

The third basis for the Crown's submission that it may be inferred that Kyle Thompson was the user of 647-338-2030 is that three of the numbers attributed to his co-accused were found programmed into the phone bearing 647-215-1831, being the phone found near him when he was arrested.

Finally, the Crown alleges that the name "Kyle" is used in intercepted telephone conversations between Mr. Junius and other persons. The Crown alleges that a person with the name "Kyle" was involved with the co-accused and that person is Kyle Thompson before the Court.

The submissions of Mr. Assie, on behalf of his client, are that the Crown is unable to point to a single call in which the user of 647-338-2030 identifies himself as "Kyle" let alone "Kyle Thompson". He makes four points.

First, there is no evidence of the identity of "father". There is no evidence of the identity of "mother". There is no evidence of the identity of "son". It is gross speculation to suggest that "son" is Mr. Thompson. Of the 132 telephone numbers programmed into the telephone attached to number 647-215-1831, six phone numbers were associated with people who were charged in Project Corral. At its highest, this simply shows that Mr. Thompson knew some of the people that were charged.

Second, there is no admissible evidence with respect to 647-338-2030 that Kyle Thompson bought the phone, used the phone, paid for the phone, or was a subscriber to the phone. The subscriber document referenced in the Crown material is hearsay. There is nothing in the evidence to adequately explain the document. Its author is unknown. It is undated. Its source is unknown. It is therefore inadmissible given the Court's Ruling on August 12, 2011, concerning the s. 540(7) materials.

Third, the name "Kyle" is not so distinct as to permit an inference that it refers to Kyle Thompson. The evidence in this preliminary inquiry and arising from the phone attached to 647-338-2030 has multiple people using that number. A person by the name of "Turbo" uses the telephone. At one point, there is a reference to "Hank" using the phone. There is no evidence that Mr. Kyle Thompson was the person on the phone during the intercepted communications. There can be nothing but speculation arising from the intercepted communications where other parties are referring to a person by the name of "Kyle".

It is my ruling that the document identifying "Cedric Thompson" as the subscriber to 647-338-2030, with "Kyle Thompson" as a secondary subscriber, is not admitted into evidence. The court's ruling on the s. 540(7) materials, dated August 12, 2011, dealt at length with the documents and evidence the Crown applied to have admitted. See, R. v. Junius, supra. This document does not fall within an admitted class or group of documents. It is in the category of "other documents". In circumstances of other documents requiring some interpretation, I directed in my s. 540(7) Ruling that the Crown call a witness to explain the document. This document was not identified by D.C. Clarke; it was not described or explained by him or any other officer. It does not meet the requirements or spirit of my s. 540(7) Ruling. It is therefore not admitted as being within the s. 540(7) materials. It is otherwise hearsay and not admitted.

In my view, there is a great deal of speculation over the possible involvement of Mr. Thompson in these charges. However, I find that there is no admissible evidence upon which a reasonable jury, properly instructed, could logically infer that Kyle Thompson was the user of the phone with number 647-338-2030.

Given the agreement of counsel noted at the outset of the analysis of these charges, it is ordered that Mr. Thompson be discharged on both charges.

(4) Troy Chemin

The Crown submits that Mr. Chemin should be ordered to stand trial on Charge Nos. 28 through 36 of Appendix "A".

Three of those charges (Nos. 28, 30, and 32), involve an alleged criminal organization offence. Those charges are considered in Part 6, following. The remaining charges against Mr. Chemin may be considered within three chronological groups as follows:

• (a) Charge No. 29: Counselling trafficking in a firearm on March 5 and 6, 2010;
• (b) Charge No. 31: Counselling trafficking in a firearm on March 10, 2010; and,
• (c) The several firearm charges of May 4, 2010.

Each is discussed separately below.

(a) Charge No. 29: Counselling trafficking in a firearm on March 5 and 6, 2010

The offence of counselling alleged by the Crown is found in s. 363 of the Criminal Code, reproduced at part 11 of Appendix "B". The essential elements of this offence were summarized above in the analysis of Charge No. 4 involving Mr. Grant. The meaning of trafficking and its elements were discussed in Part 3 (4), above.

The evidence in support of this charge arises from the intercepted voice and text communication between Mr. Chemin and another male identified as 'Abdullahi Mohamed' on March 5, 2010. In addition, the Crown relies on the report and oral testimony of Officer Michael Press.

The position of the Crown is that Mr. Chemin is directing Mr. Mohamed to bring him a firearm. This position is dependent on the interpretation of Mr. Chemin's use of the words, "Mr. Mack" in LCN 1128. The position of the defence is that the offence cannot be made out in law. In order to traffic, the accused person must transfer or give the item to another person.

In my view, a jury could reasonably infer from LCNs 1128, 1130, 1132, and 1133, that Mr. Chemin is directing Mr. Mohamed to do something, or to bring him something or to get hold of something for him.

In his written opinion and in his oral testimony, Officer Press opined that possible coded firearm references were made in LCN 1128. Given the context of the call, Officer Press wrote, "There is a possible reference to the firearm...". In his oral testimony of February 16, 2010, Officer Press opined that Mr. Chemin was referring to a firearm. In cross-examination, Officer Press stated that he could be right and he could be wrong.

Given this evidence, this is certainly not the strongest case for the Crown. However, the issue before me is simply whether there is some evidence upon which a reasonable jury, properly instructed, could make a finding of guilt. In my view, there is some evidence which, if believed at trial, could satisfy the elements of the offence of counselling the trafficking in a firearm. Mr. Chemin is therefore ordered to stand trial on this charge.

(b) Charge No. 31: Counselling trafficking in a firearm on March 10, 2010

Charge No. 31 in Appendix "A" involves a separate charge of counselling the trafficking in a firearm, this one to have taken place on March 10, 2010.

The theory of the Crown is that on March 10, 2010, Mr. Chemin counselled a woman identified as Cameal Williams to commit the offence of trafficking in a firearm. The evidence the Crown relies on is a lengthy intercepted telephone conversation between Mr. Chemin and Ms. Williams on March 10, 2010. The Crown submits that, in this intercepted voice communication identified as LCN 1193, Mr. Chemin asks Ms. Williams, "...to look something for me down there." The Crown submits that the call involves guarded language. The submission of the Crown is bolstered by the thoughts of Officer Press. I say 'thoughts' because in his report of July 25, 2011, Officer Press frankly concluded that there was no coded firearm terms used in the conversation. Officer Press was not qualified to give opinion evidence at large. While his thoughts on this particular charge are interesting, they are outside the parameters of his permitted opinion evidence. I do not see how a trial judge could permit the thoughts of Officer Press on this charge to be considered by a jury.

In my opinion, there is insufficient evidence upon which a reasonable jury could infer that the elements of the offence of counselling trafficking in a firearm were made out. It may be that they were up to no good. However, it is speculation and guesswork that Mr. Chemin is counselling her to bring a firearm to him.

Charge No. 31 is not made out and Mr. Chemin is discharged on this count.

Charge No. 32 is the companion criminal organization charge to Charge No. 31. For the same reasons, Mr. Chemin is ordered discharged.

(c) Charge Nos. 33-36: The several firearm charges of May 4, 2010

Charge Nos. 33, 34, 35, and 36 arise on May 4, 2010 (takedown day). The only element of these offences that was in dispute for purposes of the preliminary inquiry was proof of the element of possession.

A search warrant was executed, in Toronto, at 4673 Jane Street, Apartment 519. Upon entering the apartment, the police found Mr. Chemin at the doorway of the master bedroom. There was a brief struggle and Mr. Chemin was arrested in the hallway outside of the master bedroom. The police searched the master bedroom. There was a chest of drawers in that bedroom. It was searched. Found in the top drawer were various pieces of Mr. Chemin's identification. They included a Manitoba birth certificate and a Canadian passport. Male clothing was found in other drawers. In the bottom drawer the police found a .40 calibre Smith & Wesson handgun within a grey and black sock. The police noted that the serial number of the handgun had been removed. Rounds of ammunition were in the magazine of the handgun and a live round was in the chamber. The handgun was examined and determined to be a prohibited firearm as defined by s. 84 of the Criminal Code with its serial number removed. The magazine was examined and also determined to be a prohibited device as defined by s. 84 of the Criminal Code. The ammunition was examined and determined to be ammunition as defined by s. 84 of the Criminal Code. Mr. Chemin did not possess a Firearms Acquisition Certificate nor a Registration Certificate.

Counsel for Mr. Chemin frames the question, "Is the finding of that identification ... sufficient for [the jury] to ... draw a reasonable inference that the firearm was in the possession of Mr. Chemin?" Defence counsel submits that the answer must be "No." She describes it as "gossamer thin evidence"; that is, light and flimsy.

Both counsel relied on the decision of the Ontario Court of Appeal in R. v. Emes, [2001] O.J. No. 2469. In Emes the Court of Appeal upheld the judgment of Justice Hill convicting the accused of unlawful cultivation of a narcotic and possession of a narcotic for purposes of trafficking. In support of the convictions, Justice Hill relied on the fact of personal papers of the accused having been found at the residence where the drugs were found. Justice Hill found that the presence of the personal papers supported the inference that the accused had a sufficient connection to the property to permit the Court to be satisfied, beyond a reasonable doubt, that the accused was in possession of the marijuana. After reviewing the items of evidence, Justice Hill set out his reasons for accepting them as circumstantial evidence of possession. He wrote:

Personal papers are, as a general rule, maintained in a location to which a person has access and control. When documents such as income tax forms, invoices, cancelled cheques, leases, insurance papers and the like are located in a residential premise it is surely a fair inference that the person identified in the documents is an occupant with a significant measure of control. This is a matter of logic and common sense. While the existence of the papers at the location in question could be as a result of the documents being stolen, or simply stored there, or abandoned, such explanations do not, in my view, accord with the factual probabilities of the circumstances here.

It must be kept in mind that Justice Hill was dealing with proof beyond a reasonable doubt. The focus of a justice presiding at a preliminary inquiry is whether there is some evidence upon which a reasonable jury, properly instructed, could convict. In my mind, the firearm being found in the same chest of drawers where Mr. Chemin's personal papers are found constitutes some evidence for the jury to consider on the issue of possession. If believed, this constitutes some evidence upon which a reasonable jury, property instructed, could find that Mr. Chemin was in possession of the firearm.

In the circumstances, Mr. Chemin is therefore ordered to stand trial on Charge Nos. 33, 34, 35, and 36 of Appendix "A".

(5) Jamal Shehai

Mr. Shehai was arrested on May 4, 2010, at 5460 Yonge Street, Apartment #1702, Toronto.

The Crown submits that Mr. Shehai be ordered to stand trial on Charge Nos. 37 through 45 of Appendix "A".

Charge Nos. 37 and 42 involve alleged criminal organization offences. Those charges are considered in Part 6, following.

The remaining charges against Mr. Shehai may be conveniently considered if grouped chronologically as follows:

• (a) Charge Nos. 38-39: The trafficking of cocaine and trafficking of marijuana charges in the period January 28 to May 3, 2010;
• (b) Charge Nos. 40-41: The conspiracy and trafficking in cocaine charges in the period March 27 to April 8, 2010;
• (c) Charge No. 43: The trafficking in cocaine charge of April 6, 2010; and,
• (d) Charge Nos. 44-45: The possession of cocaine for the purpose of trafficking and possession of marijuana charges of May 4, 2010.

A discussion follows with respect to each group of charges.

(a) Charge Nos. 38-39: The trafficking of cocaine and trafficking of marijuana charges in the period January 28 to May 3, 2010

The Crown submits that Mr. Shehai be committed to trial on charges of trafficking in cocaine and trafficking in marijuana. The trafficking provisions of the CDSA are reproduced at parts 18 and 19 of Appendix "B".

The evidence the Crown relies on in support of these charges is the intercepted communications between Mr. Shehai and Baldwin Junius, in the period January 28th to May 3rd, 2010. The Crown relies on D.C. Rozario to provide opinion evidence on the guarded and coded language used by Mr. Shehai and Mr. Junius.

With respect to Charge No. 38, trafficking in cocaine, the Crown relies, in particular on the intercepted telephone conversation of April 25, 2010 (LCN 1686). In their conversation, they discuss arrangements to meet. They repeatedly use the word "one". Mr. Junius offers to bring "it" to Mr. Shehai. They discuss the "melt". Mr. Shehai says, "Well if … if you need an emergency, like a …* like one, we could do one, * but other than that…"

In his report at page 23, D.C. Rozario writes of LCN 1686 and LCN 1994. The LCN numbers were incorrectly described in the title. They were correctly identified in the body of his report as LCN 1686 and LCN 1994. Both intercepted communications involve telephone calls between Mr. Shehai and Mr. Junius. The opinion of D.C. Rozario is that Mr. Shehai is dealing in cocaine up to the one ounce level. He expressed the opinion that Mr. Shehai is supplying Mr. Junius. In his oral testimony, D.C. Rozario explained that he overlooked the word "melt" in his written report. Nevertheless, he believed that they used the word "melt" to refer to inferior crack cocaine.

Were a reasonable jury, properly instructed, to believe the above evidence, and accepting that the jury will be instructed to consider the totality of the evidence concerning Mr. Shehai, it is possible that the jury could find that Mr. Shehai offered to sell, give, transfer or deliver cocaine to Mr. Junius. Mr. Shehai must therefore be committed to trial on Charge No. 38 of Appendix "A".

With respect to Charge No. 39 in Appendix "A", trafficking in marijuana, the Crown also relies on LCN 1686 and LCN 1994. The Crown relies on the expert opinion of D.C. Rozario.

I do not read or hear anything in LCNs 1686 or 1994 that refers to marijuana. I do not see anything in D.C. Rozario's discussion of these calls at page 23 of his report that references marijuana. Officer Rosario did not refer to marijuana in his oral testimony concerning these calls. Without connecting it to marijuana specifically, D.C. Rozario mentioned in his oral testimony the following exchange at lines 310-319 of LNC 1686:

JUNIUS: Why can't you come see me? I'm bussing it, you're driving

SHEHAI: Yeah, I'm driving with no fucking insurance.

JUNIUS: I'm bussing it with a lot of stuff that shouldn't be bussing around.

SHEHAI: Yeah, well, welcome to the clubhouse, we're all doing the same thing.

It would be completely speculative to infer that they spoke about marijuana. There are no facts for a jury to consider whether this offence is made out. Mr. Shehai is therefore discharged on Charge No. 39 in Appendix "A".

(b) Charge Nos. 40-41: The conspiracy and trafficking in cocaine charges in the period March 27 to April 8, 2010

The conspiracy provisions of the Criminal Code are found in s. 465, reproduced in Appendix "B" at part 12. The essential elements of the crime of conspiracy were summarized in the analysis of Charge No. 11 concerning Mr. Grant, above. The trafficking provisions of the CDSA are reproduced in Appendix "B" at parts 18 and 19. The essential elements of trafficking were discussed in part 3(4) above.

The essence of the allegations supporting these charges is that Mr. Shehai agreed to supply Duvals Smith with a large quantity of crack cocaine. The theory of the Crown is that they arranged a meeting in order that Mr. Shehai could transfer the cocaine to the purchasers. Tresor Mukenge was sent from Ottawa to Toronto to meet Mr. Shehai and complete the transaction. Mr. Mukenge was subsequently arrested when he returned to Ottawa. He was found in possession of nine ounces of crack cocaine. The crack cocaine is pink, resembling bubble gum.

The Crown has at its disposal a considerable body of evidence to present these charges to the jury. Briefly, the evidence consists of:

(i) numerous intercepted telephone communications between Mr. Shehai and Mr. Smith in the period March 27 to April 6, 2010. See, LCNs 1403, 1427, 1473, 1480, 1481, 1482, 1487, 1488, 1506, 1508, 1509, and 1510. Throughout these conversations, Mr. Shehai and Mr. Smith used what appears to be coded language.

(ii) the opinion of D.C. Rozario is that, in the above calls, the two were discussing: Crack cocaine; reviews of its quality; the cooking of nine ounces of crack cocaine; dyed; and, a price of $11,000.00 for nine ounces.

(iii) several intercepted telephone communications involving Mr. Shehai and Mr. Mukenge and Mr. Smith on April 6 and 7, 2010. In LCN 1511, at 6:55 pm on April 6, 2010, Mr. Shehai agrees to meet Mr. Mukenge "right now" at "the pick up and drop off part" of the Downsview Subway station.

(iv) observations of Mr. Mukenge at the Downsview Subway station 13 minutes later at 7:08 pm, on April 6, 2010 by members of a Toronto Police surveillance team;

(v) further intercepted telephone conversations between Mr. Shehai and Mr. Mukenge wherein Mr. Shehai aborts the meeting because he detected the presence of the surveillance team (LCN 1514; see, also LCN 1517 involving Mr. Shehai and an unknown male);

(vi) intercepted text and telephone communications the following day, on April 7, 2010 between approximately 3:00 pm and 8:00 pm, whereby Mr. Shehai and Mr. Mukenge agree to meet at York University. See, LCNs 1526, 1527, 1528, 1530-1535, and 1541-1543;

(vii) the arrest of Mr. Mukenge about 10 hours later in Ottawa, disembarking a bus from Toronto, in possession of nine ounces of pink crack cocaine, resembling bubble gum.

In my view, a reasonable jury, properly instructed could infer from this body of evidence that Mr. Shehai conspired with Mr. Smith and Mr. Mukenge to commit the indictable offence of trafficking cocaine. The jury could infer from this evidence that Mr. Shehai sold and delivered, that he trafficked the cocaine found in Mr. Mukenge's possession.

Mr. Shehai is therefore ordered to stand trial on Charge Nos. 40 and 41.

(c) Charge No. 43: Trafficking in cocaine on April 6, 2010

This offence is alleged to have occurred on April 6, 2010. the Crown relies on a series of text messages involving alleged coded and guarded language. There is voice identification evidence before the Court, based on which a reasonable jury, properly instructed, could find that Mr. Shehai was the user of a phone with number 647-884-3272. On April 6, 2010, the user of phone 647-884-3272 participated in a series of text communications with an unknown person using a phone with the number 416-528-8814.

The issue for purposes of the preliminary inquiry is whether there is some evidence in this exchange that Mr. Shehai offered to sell cocaine to the unknown person. In the following sequence of text communications, "S" is Mr. Shehai and "U" is the Unknown person. The exchange was:

U: Ball wuts the tags

S: 18

U: Ya how bout the soft

S: 200

U: Im on ma way ima grab a bit a both just make sure its butter a well talk

S: a beamer each?

U: Naw man somethin of each somethin decent but i gotta c dat first

S: Yo g you have to tell me exactly what you want and time stop your worrying am not wit da bait shit

U: Ya but dawg if its proper ima take as much as i can afford wut if i dont like it and i make u draw for all dat

S: So what do you want and time

U: From down town

S: Whippin?

U: Ya

As innocuous as that exchange may appear, the jury will have to consider the evidence of D.C. Rozario and evidence of other intercepted communications of Mr. Shehai in this period. D.C. Rozario expressed the opinion that Mr. Shehai was quoting prices for crack cocaine and for powdered cocaine. The reference to "a beamer each" is, according to D.C. Rosario, a reference to 1/8th ounce of cocaine.

The evidence available to the Crown is far from overwhelming. However, if a reasonable jury, properly instructed, were to accept on the totality of the evidence that Mr. Shehai was otherwise dealing cocaine on an on-going basis and, were the jury to accept the evidence of D.C. Rozario, it might infer from this communication that he was offering cocaine to the unknown male. Mr. Shehai must therefore be committed to trial on Charge No. 43 in Appendix "A".

(d) Charge Nos. 44-45: The possession of cocaine for the purpose of trafficking and possession of marijuana charges of May 4, 2010

Charge Nos. 44 and 45 in Appendix "A" arise from Mr. Shehai's arrest on May 4, 2010 at 5460 Young Street Apt. No. 1702, Toronto.

Charge No. 44 alleges the possession of cocaine for the purposes of trafficking. The police burst into Mr. Shehai's apartment at the above address. A quantity of a substance was found in a toilet in what is identified as "W/R #2" (washroom) on a diagram within the Search Warrant Package documents for the above address.

Counsel agree, for purposes of the preliminary inquiry, that evidence in the s. 540(7) materials confirms the substance to be cocaine. There was 3.48 grams of pink crack cocaine and 0.63 grams of powder cocaine.

Given the manner in which the drugs were packaged and the fact that several substances were found together, Officer Rozario opined that the cocaine was possessed for the purpose of trafficking. Counsel agree that the issue for the purposes of the preliminary inquiry is whether there is some evidence upon which a reasonable jury, properly instructed, could find that Mr. Shehai had possession of the cocaine.

According to the notes of Officer Taylor in the s. 540(7) materials, and following the police bursting into the apartment, two men were found in the apartment. Mr Shehai was lying "…face down on [the] floor just outside the door of the washroom [#2]". The other male found in the apartment was a person by the name of "Jerome Newman". The notes of Officer De Sousa within the s. 540(7) materials describe "U/K#1" (Jerome Newman) as being found on the bed in the master bedroom, being room "#4" in the diagram described above.

Counsel for the Crown and for Mr. Shehai agreed that Jerome Newman pled guilty to a charge of possession for the purposes of trafficking in cocaine. I infer that that plea was in respect of the cocaine in the toilet that was discovered by the police as described above.

The CDSA incorporates the Criminal Code definition of "possession". The definition of "possession" in the Criminal Code is reproduced in Appendix "B", part 1. A brief explanation of the elements of possession was offered in Part 3, above. It may be recalled from the definition of "possession" and the discussion of its elements that two or more persons can have joint possession of the same substance.

While the evidence is not overwhelming, the issue for this Court is not whether it can be proven beyond a reasonable doubt that Mr. Shehai had possession of the cocaine. Rather, the issue simply is whether there is some evidence, upon which a reasonable jury, properly instructed, could infer that Mr. Shehai had handled the cocaine, that he had knowledge of it, and that he had some control of it. Notwithstanding Jerome Newman's acceptance of responsibility for the cocaine in the toilet as evidenced by his plea of guilty to the charge, it is possible in law that he and Mr. Shehai had joint possession of the substance. Considering the evidence as a whole and Mr. Shehai's physical proximity to the toilet where the drugs were found, it is possible that a reasonable jury, properly instructed, could infer that Mr. Shehai had possession of the cocaine. He is therefore ordered to stand trial on Charge No. 44 of Appendix "A".

With respect to Charge No. 45 in Appendix "A", possession of marijuana under 30 grams, counsel did not oppose an order that Mr. Shehai be tried in the Superior Court on this summary conviction offence. The issue in R. v. Brown, [2003] O.J. No.2152 (ONSC) was not argued before me. Mr. Shehai is ordered to stand trial on Charge No. 45. If counsel are unable to resolve this charge in the Superior Court, it may be returned to me.

(6) Duvals Smith

Duvals Smith has consented to an order that he be ordered to stand trial on the charges appearing at Nos. 46 through 59 of Appendix "A".

(7) Tresor Mukenge

Tresor Mukenge has consented to an order that he be ordered to stand trial on the charges appearing at Nos. 60 through 71 of Appendix "A".

PART 6 – ANALYSIS OF THE CRIMINAL ORGANIZATION CHARGES

There are 16 charges in Appendix "A" involving allegations of a criminal organization and its members or associates. The nature and number of the criminal organization charges are a significant complicating factor in this case. With the hoped-for result of simplifying the analysis of these charges, and for the assistance of counsel and the accused persons, this part is organized under the following headings:

• (a) Introduction
• (b) Overview of the legal principles involved
• (c) Is there evidence of a criminal organization?
• (d) Is there evidence of its members?
• (e) Application to criminal organization charges in Appendix "A"

A discussion under each heading follows in the paragraphs below.

(a) Introduction

The underlying actus reus or the wrongful deed alleged in each of the criminal organization charges mirrors the wrongful deed alleged in the corresponding underlying charges in Appendix "A". For example, each of Messrs. Grant and Junius have been ordered to stand trial on charges of trafficking in cocaine and trafficking in marijuana in the period January 28 to May 3, 2010. See, Charge Nos. 2 and 3 for Mr. Grant and Charge Nos. 17 and 18 for Mr. Junius. The essence of the corresponding criminal organization charges (Charge Nos. 1 and 16 in Appendix "A") is that, in trafficking cocaine and marijuana on an ongoing basis in this manner, in addition to committing the substantive trafficking offences, they also committed the criminal organization offences.

It will therefore be helpful to have a basic understanding of the legal principles concerning criminal organization offences. That is the general purpose of the "Overview", below.

Some common findings may be made, of general application to the criminal organization charges. For example, a common element in each of the participation, commission, and instruction offences is the existence of a criminal organization as defined in s.467.1 of the Criminal Code. If there is a finding on that element, can it be of general application to each of the criminal organization charges? In my view, it can. By way of a further example, a common element in the "instruction" offences is that the accused be "...one of the persons who constitutes ..." the criminal organization. If there is a finding on that element, can it be of general application to each of the criminal organization charges alleging the "instruction" offence? In my view, it can.

The common findings of general application are identified below. They are relied on in the analysis of each of the criminal organization charges alleged in Appendix "A".

(b) Overview of the legal principles involved in the criminal organization offences

(i) Generally

The criminal organization offences were enacted by Parliament to confront the criminal activity of gangs and criminal groups. See, An Act to amend the Criminal Code (organized crime and law enforcement), S.C. 2001, c. 32, s. 27.

Three new offences were created: "participation" in the activities of a criminal organization for the purpose of enhancing its ability to commit offences (s. 467.11); "commission" of an offence for the benefit of a criminal organization (s. 467.12); and, "instruction" to commit an offence (s. 467.13). The relevant sections of the Criminal Code are reproduced in Appendix "B" at parts 13 through 17.

Parliament decreed serious punishment for these offences. The participation offence carries a maximum penalty of five years' imprisonment; the commission offence 14 years' imprisonment; and, the instruction offence, life imprisonment. In addition, a sentence imposed for a criminal organization offence must be consecutive to any other punishment (s. 467.14).

Each of the participation, commission, and instruction offences are linked to the definition of a criminal organization in s. 467.1(1). See, Appendix "B", part 13. A "criminal organization" is defined as a group, "however organized," with three or more persons, in or outside Canada. The group must have as one of its main purposes or main activities, the "facilitation or commission of one or more serious offences..." that would likely result in a material benefit, including a financial benefit, by the group or any of the persons constituting the group.

A group of persons that forms randomly for the immediate commission of a single offence is excluded from the scope of the "criminal organization". (Section 467.1 (1))

The terms, a "serious offence" and "facilitation" are also defined in s. 467.1. A "serious offence" is an indictable offence with a maximum punishment of five years or more. "Facilitation" is defined in s. 467.1 (2) to avoid the Crown having to prove any particular offence or the actual commission of an offence. See, R. v. Terezakis, 2007 BCCA 384, per Mackenzie J.A. at para. 13.

See, generally, Manning, Mewett and Sankoff: Criminal Law, supra., at pages 280-285.

(ii) The Participation Offence – Section 467.11

The wording of this offence is reproduced in Appendix "B", part 14. The elements of the participation offence in s. 467.11 that the Crown must prove are that the accused:

• knowingly, by act or omission, participated in or contributed to,
• any activity of the criminal organization,
• for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence.

The participation offence does not require that the accused be one of the persons who constitute the criminal organization.

(iii) The Commission Offence – Section 467.12

The wording of this offence is reproduced in Appendix "B", part 15. The elements of the commission offence in s. 467.12 that must be proven by the Crown are that the accused:

• knowingly committed an indictable offence under the Criminal Code or any other Act of Parliament,
• for the benefit of, at the direction of, or in association with,
• a criminal organization.

Similar to the participation offence, it is not an element of the commission offence that that the accused be one of the persons who constitutes the criminal organization.

In R. v. Lindsay, [2004] O. J. No. 845 (SCJ), at paragraph 64, Fuerst J. explained that in proving this offence, the Crown must establish that the accused knowingly committed "...the particular predicate offence involved...," meaning the underlying offence (for example, trafficking in cocaine or trafficking in a firearm), and that he intended to do so for the benefit, at the direction of, or in association with a group he knew had the composition of a criminal organization. See also, R. v. Willis, 2007 ONCJ 605, [2007] O.J. No. 5691 (OCJ, Pringle J.) at para. 66.

In determining whether an accused knowingly participated in or contributed to the activity of a criminal organization, s. 467.11(3) provides that the Court may consider, among other matters, whether the accused used names, words or symbols associated with a criminal organization; frequently associated with members of the organization; received any benefit from the organization; or, repeatedly engaged in activities under the instruction of a member of the organization. See, Appendix "B", part 14.

(iv) The Instruction Offence – Section 467.13

This is the most serious of the criminal organization offences. The potential sentence is life imprisonment. The wording of this offence is reproduced in Appendix "B", part 16.

Unlike the participation and commission offences, the instruction offence requires proof that the accused is one of the persons who constitutes the criminal organization.

The accused must "knowingly instruct" another person to commit an offence. The instruction may be given directly or indirectly. The Crown is not required to prove that the accused instructed any particular person to commit the offence or that the offence was actually committed. The instructed offence is not limited to indictable offences; it may be any offence under the Criminal Code or any other Act of Parliament. However, it must be for the "benefit of, at the direction of, or in association with, the criminal organization".

In R. v. Terezakis, supra, Mackenzie J.A. and Chiasson J.A. wrote separate but concurring judgements on the elements of the instruction offence. With respect to the requirement the accused be one of the persons who constitutes the criminal organization, each adopted the following passage from a jury charge submitted by the Attorney General of British Columbia:

You also must be satisfied beyond a reasonable doubt that the accused knows that the characteristics of the group [are] that of a criminal organization. In other words the accused must have knowledge that he is part of a group, with at least two others, that he knows has as one of its main purposes or main activities the facilitation or commission of one or more serious offences (indictable offences with a maximum punishment of 5 years or more) that, if committed or facilitated, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.

See, R. v. Terezakis, supra., at para. 41.

In his judgment, Chiasson, J.A. broke down the essential elements of s. 467.13 this way:

• membership in a group, however organized;
• knowledge that a main purpose or activity of the group is the facilitation or commission of serious crime;
• knowledge that the crime likely would result in a direct or indirect benefit to the group or any person in the group;
• as a member of the group, knowingly instructing another to commit a crime for the benefit of the group, at its direction or in association with the group.

See, R. v. Terezakis, supra., at para. 62.

A common element in each of the participation, commission, and instruction offences is the existence of a criminal organization as defined in s.467.1 of the Criminal Code. A common element in the "instruction" offences is that the accused be "...one of the persons who constitutes ..." the criminal organization. I turn therefore to those questions.

(c) Is there evidence of a criminal organization?

Applying the above legal principles to the facts of the case before this court, the threshold question is whether there is evidence of a criminal organization. Justice Peter Harris provided helpful assistance in R. v. Atkins, [2010] O.J. No. 2990, explaining in lay terms, proof of the existence of a criminal organization as defined by s.467.1 of the Criminal Code. He wrote at paragraph 25:

Any reasonable interpretation of the statute would suggest that a criminal organization is at minimum, nothing more than: any three persons, however organized, who associate for more than one offence, to commit serious offences for the benefit of at least one person in the group. Consequently, any three persons who associate more than once, mainly to buy, sell, transfer or distribute drugs or firearms to and from each other for the benefit of any one associate in terms of profit, security, enforcement or any other type of benefit - are all part of a criminal organization according to the Code definition. Maximum flexibility is achieved by the use of the words, "however organized". There are no requirements for (a) formally defined roles; (b) continuity of association, or (c) a developed structure. While it is helpful if the group obligingly adopts a name associated with some notoriety, or dresses in a certain manner with coloured accessories or "patches", or establishes a territory, the fact is that no particular group structure or organization is actually required. Nonetheless, the persons who constitute "the group, however organized", are only associates of a criminal organization to the extent they share its criminal objectives. (emphasis included in original text)

In my view, there is a considerable body of evidence available to a reasonable jury, properly instructed, from which they could find the existence of a criminal organization in the circumstances of this case. Five examples of the type of available evidence should suffice for purposes of the preliminary inquiry.

First, there is some evidence of gang symbols and affirmations of allegiance. Mr. Grant stars in "Wellproper 234", a web video that references gang culture, trafficking in drugs, with references to firearms and their use. Gang symbols are prominent in the video, being the numbers "2-3-4" and "20-30-40", apparently referencing the apartment buildings located at the municipal addresses of 20, 30, and 40 Falstaff Avenue in Toronto. Mr. Grant bears tattoos of the gang symbols of Falstaff and the Crips. Mr. Junius also bears tattoos of Falstaff and the Crips. The expert opinion of D. C. Oliver was that these tattoos demonstrate allegiance to Falstaff and the Crip Nation. There are intercepted communications of Mr. Grant affirming allegiance to Falstaff and the Crips. In the intercepted communication identified as LCN 0840, Mr. Chemin urges Mr. Grant to return to his proper place with 'the men'. He reminds Mr. Grant, '...you're a public person ... you're a name brand nigga....' An available inference from the call is that Mr. Chemin wants Mr. Grant to return to the west end of Toronto where it will be '...the responsibility of the men...' to look after and support him.

The second example consists of the numerous instances of trafficking in drugs and trafficking in firearms, analyzed in Part 5 above, for which there is some evidence upon which a reasonable jury could convict the accused.

Third, the jury will be invited to make findings and draw inferences from the evidence on the interaction of the accused. It will be open to the jury to find that the accused are far from being criminal islands. There is an abundance of intercepted communications among them, some of which are summarized in the Table presented in the analysis of Charge Nos. 17 and 18 against Mr. Junius. The Crown constructs from this evidence its theory that Mr. Grant, Mr. Junius, Mr. Smith, and a person identified as Chad Karam (at 647 207 9996) and others in the Canlish Road Complex and Portsdown Road area of Scarborough, are carrying on the business of trafficking cocaine and marijuana. The theory of the Crown continues that each accused person conducted his drug trafficking business in a manner that benefitted the organization, allowed it to operate as an organization, and each, in turn, benefitted from the existence of the organization. In my view, the evidence is capable of supporting inferences that Messrs. Grant, Junius, Chemin, Smith, and Shehai were: using a common place; accessing each other's clients; trading clients; and, trading drugs back and forth as between them. Were a jury to make those findings, they could find that, in addition to committing the substantive trafficking offences, they are also guilty of offences for the benefit of a criminal organization.

A fourth example is the circumstance where the pieces of intercepted communications are put together with the pieces of surveillance and the pieces from an arrest to create the picture of a drug transaction in process. A clear picture emerges of the interrelationship and purpose of the activity of the accused. One example of this follows the intercepted telephone communication identified as LCN 0827. While speaking of his plans to travel to Ottawa, Mr. Smith tells Mr. Mukenge that, '...we're gonna ...branch out...' Mr. Smith tells Mr. Mukenge that he will be in Ottawa, '...by Thursday, Friday we're trying to get out there.' Three days later, Mr. Smith is observed in Ottawa, with Mr. Chemin, meeting Mr. Mukenge. Three days after that, Mr Shehai is observed dropping Mr. Chemin off at the bus depot in Toronto in order that he can again travel to Ottawa. There are intercepted telephone communications involving Mr. Chemin speaking with Mr. Smith and Mr. Shehai speaking with Mr. Smith and also with Mr. Mukenge. Of course, all of this is said by the Crown to be in furtherance of Mr. Shehai supplying Mr. Smith and Mr. Mukenge with crack cocaine for distribution in the Ottawa and Gatineau markets. A jury could infer from the available evidence that, eventually, Mr. Shehai meets in Toronto with, and gives to, Mr. Mukenge, the pink crack cocaine he is subsequently arrested with in Ottawa on April 8, 2010.

Following the above, the fifth example is the surveillance evidence placing several of the accused together at various times. For example, Messrs. Grant, Junius, Chemin, and Shehai are seen together at Jack Astor's in Scarborough on February 12, 2010. Messrs. Chemin and Smith were observed together in Ottawa on February 25, 2010. Mr. Shehai and Mr. Chemin are observed together on March 1, 2010. Mr. Chemin is seen together in Ottawa with Mr. Smith and Mr. Mukenge.

The sixth example is that, when arrested, several of the accused were in possession of drugs. There is some evidence that one was in possession of a firearm and another in possession of ammunition.

Finally, there is the evidence of D.C. Oliver. He was qualified to give expert evidence about, among other things, the constitution and operation of criminal organizations generally and of a criminal organization in this case.

If accepted by the jury, his opinion would support a finding of a criminal organization.

The above is a brief summary of some of the available evidence. In my view, when considered in its totality, a reasonable jury, properly instructed, would have little difficulty finding that there was a group of three or more persons, organized in some way, with one of its main purposes or activities being the facilitation or commission of one or more serious offences, resulting in a material benefit to the group or persons in the group. I believe this finding may be applied to each of the criminal organization charges under consideration in this Part.

(d) Is there evidence of its members?

The Crown submits that the core group who constitute the criminal organization are Mr. Chemin, Mr. Shehai, Mr. Smith, Mr. Grant, and Mr. Junius. Mr. Mukenge is said to be an associate.

The Crown relies in particular on the manner in which the accused persons interact, the activity they engage in, and the benefit they reap from their association and behaviour together.

Could a reasonable jury, properly instructed, find that each of Messrs. Grant, Chemin, and Shehai had knowledge that he was part of a group, with at least two others, that he knew had as one of its main purposes or main activities the facilitation or commission of one or more serious offences (indictable offences with a maximum punishment of 5 years or more) that, if committed or facilitated, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group? See, R. v. Terazakis, supra, at paragraph 41. The body of evidence summarized immediately above, under sub-heading (c), in the analysis of the answer to the criminal organization question, applies equally to answer this question. In my opinion, a reasonable jury could find from that evidence that each of Messrs. Grant, Junius, Chemin, and Shehai is a person who constitutes the group.

In summary, I have found that there is some evidence upon which a reasonable jury, properly instructed, could find the existence of a criminal organization as that term is defined in s.467.1 of the Criminal Code.

I am also of the opinion that the jury could find from that same evidence that each of Messrs. Grant, Junius, Chemin, and Shehai is "...one of the persons who constitute..." that criminal organization.

These findings concerning two of the essential elements of the criminal organization offences are carried forward and deemed incorporated into the analysis below of each criminal organization charge alleged against each accused.

(e) Application to the criminal organization charges in Appendix "A"

The criminal organization charges are analyzed in the order in which they appear in Appendix "A". Given their consent to an order to stand trial, the analysis following does not include the criminal organization charges alleged against Mr. Smith and Mr. Mukenge.

(i) Collin Grant

The criminal organization charges alleged against Mr. Grant appear as Charge Nos. 1, 5, 8 and 10 in Appendix "A". They are considered in that order. With respect to each of these charges, and for the reasons expressed immediately above, I have found that the jury could find the existence of a criminal organization and that Mr. Grant was a person who constituted that organization. Each charge is analyzed in the paragraphs following:

(A) Charge No. 1

Committing the indictable offence of trafficking in cocaine and marijuana for the benefit of, at the direction of, or in association with, a criminal organization in the period January 28 to May 3, 2010.

The criminal organization charge alleged, "commission," is found in s. 467.12 of the Criminal Code, reproduced at part 15 of Appendix "B". The essential elements of the commission offence were summarized above in the part at 6(a)(iii).

In addition to the finding concerning the elements of common application, two other elements of this offence are not in issue. Mr. Grant did not oppose an order that he stand trial on the underlying indictable offences of trafficking in cocaine and marijuana. See, Appendix "A" Charge Nos. 2 and 3 and Part 5 (1) Grant. The element that Mr. Granek, counsel to Mr. Grant, did put in issue is whether the underlying offences were committed "...for the benefit of, at the direction of, or in association with..." the criminal organization.

The evidence of the underlying offences was not summarized under Mr. Grant's title because he did not oppose an order that he stand trial on Charge Nos. 2 and 3. However, Mr. Junius faces identical charges (see Appendix "A" Charge Nos. 16-18) and the evidence of much of his activity and that of Mr. Grant was summarized in the Table included above at Part 5(2)(a). In addition to the intercepted communications summarized in the Table, the jury may be invited to also consider LCNs: 0244 (Grant and Karam); 0497 (Grant and unknown male); and, 0514 (Grant and unknown male). In addition, the jury may be invited to consider the surveillance evidence placing Mr. Grant together with at least three of his co-accused. In my view, there is evidence upon which the jury could find the commission of the underlying offences.

Were the offences committed for the benefit of, at the direction of, or in association with a criminal organization? The jury will be instructed that each charge must be considered in the context of the totality of the evidence. In my view, a reasonable jury, properly instructed, could infer from the evidence described that Mr. Grant trafficked in cocaine and marijuana for the benefit of or in association with a criminal organization. He must therefore be ordered to stand trial on Charge No. 1 in Appendix "A".

(B) Charge No. 5

Instructing a person to commit the indictable offence of trafficking in a firearm for the benefit of, at the direction of, or in association with a criminal organization on February 5, 2010

The criminal organization offence of instructing is set out in s. 467.13 of the Criminal Code, found at Appendix "B" at part 17. The underlying facts of this offence correspond to those summarized in relation to Charge No. 4 of Appendix "A". See, part 5(1)(b), above.

At the risk of repetition, I have found to this point that there is some evidence upon which a reasonable jury, properly instructed, could, not must, find that:

• the actus reus, that is, the wrongful deed that comprises the physical components of the crime, has been proven;
• the criminal organization alleged exists; and
• Mr. Grant is a member of that organization.

The element left for consideration is whether Mr. Grant, as a member of the group, knowingly instructed the unknown person to transfer ammunition for the benefit of the group, at its direction or in association with the group.

Considered in isolation, there is nothing in the intercepted communication to support this charge. See, LCN 2015, February 5, 2010. However, the jury will be instructed by the trial judge to consider the totality of the evidence. At bottom, the question for the jury to decide will be whether the Crown has proven beyond a reasonable doubt that Mr. Grant instructed the commission of the offence "...for the benefit of, at the direction of, or in association with, the criminal organization..." or, was it simply for his own account.

Given the evidence of his gang video, adoption of symbols, affirmations of allegiance to Falstaff, and the content of the numerous intercepted communications with his co-accused, a reasonable and properly instructed jury could find that Mr. Grant's criminal activity was for the benefit of, at the direction of, or in association with the Falstaff criminal organization. In that event, it is open to the jury to find him guilty of this offence. Mr. Grant is therefore ordered to stand trial on this charge.

(C) Charge No. 8

Instructing a person to commit the indictable offence of trafficking in ammunition for the benefit of, at the direction of, or in association with a criminal organization on March 26, 2010

The evidence supporting this offence corresponds to that which was summarized in relation to Charge No. 7 in Appendix "A". See, Part 5(1)(d), above. A firearm was alleged in Charge No. 7; ammunition is alleged in Charge No. 8. It will be recalled that the opinion of Officer Press was that both a firearm and ammunition were discussed by Mr. Grant and the unknown person. With that exception, the same analysis pertains here as was given immediately above in relation to Charge No. 5.

For the same reasons therefore, Mr. Grant is ordered to stand trial on Charge No. 8 in Appendix "A".

(D) Charge No. 10

Committing the indictable offence of trafficking in a firearm for the benefit of, at the direction of, or in association with, a criminal organization on April 16, 2010

The underlying facts of this offence correspond to those summarized in relation to Charge No. 9. See, Part 5(1)(e), above.

The same analysis pertains here as was given immediately above in relation to Charge Nos. 5 and 8.

For the same reasons therefore, Mr. Grant is ordered to stand trial on Charge No. 10 in Appendix "A".

(ii) Baldwin Junius

The criminal organization charges alleged against Mr. Junius appear as Charge Nos. 16, 21, and 23 in Appendix "A". Each is dealt with below.

(A) Charge No. 16:

Committing the indictable offence of trafficking in cocaine and marijuana for the benefit of, at the direction of, or in association with, a criminal organization in the period January 28 to May 3, 2010

The criminal organization charge alleged, "commission," is found in s. 467.12 of the Criminal Code, reproduced at part 15 of Appendix "B".

The evidence in support of the underlying charges, trafficking in cocaine and marijuana, was summarized in part 5(2)(a). That summary included the Table illustrating the coded language and the opinion of D.C. Rozario.

The only element of this offence that is left in issue is whether the underlying offences were committed "...for the benefit of, at the direction of, or in association with..." the criminal organization.

The analysis of the similar criminal organization charge affecting Mr. Grant, set out above in Part 6(e)(i)(A), is also applicable to Mr. Junius. The result is the same. Mr. Junius must therefore be ordered to stand trial on Charge No. 16 in Appendix "A".

(B) Charge No. 21:

Instructing a person to commit the indictable offence of assault for the benefit of, at the direction of, or in association with a criminal organization on February 25, 2010

The criminal organization offence of "instruction" is set out in s. 467.13 of the Criminal Code, found in Appendix "B" at part 17.

The evidence in support of the underlying offence of counselling the commission of the offence of assault was summarized in the analysis of Charge No. 20, above. It will be recalled that Mr. Junius was speaking with an inmate of the Maplehurst Correctional Complex. Mr. Junius gave several directions to the unknown inmate to assault several other prisoners. That evidence is coupled with the expert opinion of D.C. Oliver. There is therefore some evidence based on which a reasonable jury, properly instructed, could find that Mr. Junius, as a member of a criminal organization, instructed another person to assault gang rivals thereby committing a criminal offence for the benefit of a criminal organization. Mr. Junius is therefore ordered to stand trial on this charge.

(C) Charge No 23:

Instructing a person to commit the indictable offence of trafficking in marijuana for the benefit of, at the direction of, or in association with a criminal organization on March 15, 2010

The theory of the Crown in relation to this charge is that on March 15, 2010, Mr. Junius instructed an unknown female to hide a quantity of marijuana to avoid detection by police. The evidence relied on by the Crown in support of the underlying offence was summarized in Part 5 in the analysis of Charge No. 22 against Mr. Junius. There is evidence that Mr. Junius directed the unknown female to hide, and thereby transfer, marijuana. Was it for his account or for the benefit of a criminal organization? After all, he is overheard to say in LCN 1238, 'I want this girl to put up my weed...' That notwithstanding, there is evidence before the Court that Mr. Junius was a member of a criminal organization, involved in drug trafficking. Given the expert evidence of D.C. Oliver, there is evidence before the Court, based on which a reasonable jury, properly instructed, could find that Mr. Junius instructed the unknown female to take possession, and then to hide the marijuana to avoid detection. The taking of possession is the transfer, the trafficking. The jury could find that Mr. Junius thereby committed an offence for the benefit of a criminal organization. The jury will have to decide this issue. Mr. Junius is therefore ordered to stand trial on this charge.

(3) Troy Chemin

The criminal organization charges alleged against Mr. Chemin appear as Charge Nos. 28, 30, and 32 in Appendix "A".

Mr. Chemin was ordered discharged on Charge No. 31, the underlying offence to Charge No. 32. He is therefore ordered discharged on the corresponding criminal organization charge in Charge No. 32. This leaves for consideration Charge Nos. 28 and 30. Each is dealt with below.

(A) Charge No. 28:

Participate in the activities of a criminal organization for the purpose of enhancing the ability of the organization to commit the indictable offence of trafficking in cocaine in the period January 28 to May 3, 2010

The criminal organization charge alleged, "participation", is found in s. 467.11 of the Criminal Code, reproduced at part 15 of Appendix "B". The essential elements of the participation offence were summarized above in this Part at 6(a)(ii). Mr. Chemin need not be a member of the criminal organization to have committed this offence.

The time period alleged for this offence corresponds to the time period alleged in Charge Nos. 1-3 against Mr. Grant and Charge Nos. 16-18 against Mr. Junius, being January 28 to May 3, 2010. The criminal activity alleged in those charges included trafficking in cocaine and trafficking in marijuana. The evidence available to the jury will include much of the evidence summarized in the analysis in Part 6 (c) whether there is evidence of a criminal organization. It also includes the numerous intercepted communications presented in the Table at Part 5(2)(a) concerned with Charge Nos. 17-18 alleged against Mr. Junius. It will be recalled from this evidence, for example, that Mr. Chemin travelled with Mr. Smith to Ottawa when Mr. Smith was setting up a satellite drug trafficking business. It was Mr. Shehai who took him to the bus station for one of his trips. A map of Ottawa and the Gatineau area was found in Mr. Chemin's bedroom when he was arrested. The conversation between Mr. Chemin and Mr. Grant will also be recalled where Mr. Chemin speaks of "...the responsibility of the men..." to look after Mr. Grant.

In my view, a reasonable and properly instructed jury could infer from this evidence that Mr. Chemin knowingly participated in activities of the Falstaff Crips for the purpose of enhancing its ability to facilitate or commit an indictable offence. He is therefore ordered to stand trial on this charge.

(B) Charge No. 30:

Instructing a person to commit the indictable offence of trafficking in a firearm for the benefit of, at the direction of, on in association with a criminal organization on March 5 and 6, 2010.

The criminal organization offence of instructing is set out in s. 467.13 of the Criminal Code, found at Appendix "B" at part 17. The essential elements of this offence were set out above in this Part. The evidence in support of the corresponding charge of counselling was summarized above in Part 5(4)(a). I noted in relation to the corresponding charge of counselling trafficking in a firearm that a jury could reasonably infer that Mr. Chemin was directing Mr. Mohamed to do something for him, or to bring him something or get a hold of something for him. Equally therefore, in my view, the jury could infer the element of "knowingly instruct".

The elements of common application are relevant to this charge. That is, there is a criminal organization and Mr. Chemin is a person who constitutes that organization.

Was this particular activity done for the benefit of the group or in association with it? While I may think the answer very unclear, a reasonable jury could, upon the evidence summarized immediately above in relation to Charge No. 28, find that it clearly was.

There is some evidence upon which the jury may reasonably find a firearm involved. Mr. Chemin is therefore ordered to stand trial on this charge.

(4) Jamal Shehai

Two of the charges (Nos. 37 and 42) in Appendix "A" involve a criminal organization offence alleged against Mr. Shehai. They are considered below.

(a) Charge No. 37

Committing the indictable offence of trafficking in cocaine and marijuana for the benefit of, at the direction of, or in association with, a criminal organization in the period January 28 to May 3, 2010.

The criminal organization offence of "commission" is found in s. 467.12 of the Criminal Code, reproduced at part 15 of Appendix "B".

The essential elements of the offence were summarized in Part 6(a)(iii).

The time period alleged in this charge, January 28 to May 3, 2010, is the same as the time period in Charge Nos. 38 and 39 in relation to Mr. Shehai.

I ordered that Mr. Shehai be discharged on Charge No. 39, trafficking in marijuana. That element of Charge No. 37 fails. I ordered that Mr. Shehai stand trial on Charge No. 38.

The element outstanding in the analysis of Charge No. 37 is whether the trafficking of cocaine alleged was for the benefit of, at the direction of, or in association with the criminal organization.

The Crown gave this charge scant attention in closing submissions and, perhaps rightly so. Nevertheless, considering the evidence in its totality, a reasonable jury, properly instructed, could find that Mr. Shehai's activity in this offence was in association with the criminal organization. He is therefore ordered to stand trial on this charge.

(b) Charge No. 42

Committing the indictable offence of trafficking in cocaine for the benefit of, at the direction of, or in association with, a criminal organization in the period March 27 to April 8, 2010.

The provisions of the Criminal Code and the essential elements of this offence are the same as for Charge No. 37, considered immediately above.

The underlying offence corresponds to Charge Nos. 40 and 41. The evidence in support of those charges was reviewed at some length in Part 5(5)(b), above.

The only element in issue is whether the trafficking was with or for the criminal organization. I think it readily and reasonably open to the jury to find upon the evidence that Mr. Shehai trafficking in cocaine for the benefit of or in association with a criminal organization. He is therefore ordered to stand trial on this charge.

(v) Duvals Smith

Two of the charges (Nos. 51 and 52) in Appendix "A" involve criminal organization offences alleged against Mr. Smith. As noted above, he has consented to an order that he stand trial on these charges.

(vi) Tresor Mukenge

One of the charges (No. 63) in Appendix "A" involves a criminal organization offence alleged against Mr. Mukenge. As noted above, he has consented to an order that he stand trial on this charge.

PART 7 – SUMMARY OF ORDERS MADE

The following is a summary of the orders made with respect to the individual accused.

(a) Collin Grant

Mr. Grant is ordered to stand trial on Charge Nos. 1 through 15 in Appendix "A".

(b) Baldwin Junius

Mr. Junius is ordered to stand trial on Charge Nos. 16 through 25 in Appendix "A".

(c) Kyle Thompson

Mr. Thompson is ordered discharged on Charge Nos. 26 and 27 in Appendix "A".

(d) Troy Chemin

Mr. Chemin is ordered to stand trial on Charge Nos. 28 through 30 and Charge Nos. 33 through 36 in Appendix "A". He is ordered discharged on Charge Nos. 31 and 32.

(e) Jamal Shehai

Mr. Shehai is ordered to stand trial on Charge Nos. 37, 38 and 40 through 45 in Appendix "A". He is ordered discharged on Charge No. 44 in Appendix "A".

(f) Duvals Smith

Mr. Smith is ordered to stand trial on Charge Nos. 46 through 59 in Appendix "A".

(g) Tresor Mukenge

Mr. Mukenge is ordered to stand trial on Charge Nos. 60 through 71 in Appendix "A".

Released: August 22, 2012

Justice P. J. French