WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.—(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

COURT FILE No.: Central East Region-Oshawa 11-01725 and 11-01726

DATE: 2012·02·03

CITATION: R. v. MacDonald, 2012 ONCJ 877

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

PHILLIP CHESTER MACDONALD, FRANCESCO SERRANO,

JASON TOMPKINS, DAVID RONALD BARKER, JOHN ROBERT CURRIE,

KATHERINE SUSAN MISANGYI, KONSTANTINOS GUS SOUNTAS and

SHABNAM MADHAVI-DAMGHANI

Before Justice Peter C. West

Heard from September 12 to November 25, 2011

Reasons for Judgment released on February 3, 2012

Mr. J. Pearson and Mr. A. Ghosh .............................................................................. for the Crown

Mr. M. Mirosolin ............................................................ for the accused Phillip Chester MacDonald

Mr. R. Chartier ........................................................................... for the accused Francesco Serrano

Mr. M. Maini ................................................................................... for the accused Jason Tompkins

Mr. C. Pearce .......................................................................... for the accused David Ronald Barker

Mr. R. Elbirt and Mr. M. Engel................................................... for the accused John Robert Currie

Ms. A. Monaco.................................................................. for the accused Katherine Susan Misangyi

Mr. C. Pearce .............................................................. for the accused Shabnam Mahdavi-Damghani

The accused Konstantinos Gus Sountas on his own behalf

WEST J.:

1. Introduction:

[1] This is a ruling on the issue of committal after a preliminary hearing. There are two informations before me; namely, a federal information containing 27 counts under the Controlled Drugs and Substances Act (hereinafter referred to as the CDSA) and a provincial information containing 40 counts under the Criminal Code of Canada (hereinafter referred to as the Criminal Code). The Crown is also seeking committal on 17 additional charges under the CDSA and the Criminal Code.[^1] I would like to take this opportunity to express my appreciation to all counsel for the manner in which this very complicated and lengthy preliminary inquiry was conducted.

[2] There were originally five counts alleging various defendants had participated or contributed to the activity of a criminal organization, either individually or together with one or more co-defendants. Of the 17 additional counts on which the Crown is seeking committal, eight are charges alleging that various defendants participated in or contributed to or committed offences or instructed others in committing offences for the benefit of a criminal organization. The offences relate to the involvement of individual or a number of defendants in the trafficking of controlled substances and firearms.

[3] At the commencement of the preliminary hearing, the Crown advised that counts 1 and 33 of the provincial information were to be withdrawn. Both of these charges related to criminal organization charges involving Mr. MacDonald and Mr. Serrano.

[4] Mr. Sountas was not able to retain a lawyer to represent him at the preliminary inquiry because of financial difficulties and decided, upon receiving independent legal advice, to waive the evidence. This was on the consent of the Crown. I have delayed, on the consent of all parties, including Mr. Sountas, in committing him to stand trial on the four counts he is facing (Count 32 in the provincial information and Counts 25-27 in the federal information) until I deliver my judgment respecting the other defendants.

[5] At the conclusion of the preliminary hearing the Crown conceded that no evidence had been called respecting Count 24 (federal information) relating to Ms. Misangyi, Count 29 (provincial information) relating to Mr. Barker and Counts 36-40 (provincial information) relating to Mr. MacDonald and invited me to discharge each of the defendants on those counts, which I did. Further, in respect of Count 10 (federal information) it was agreed by the Crown and Mr. Pearce that this count should relate to MacDonald, Currie and Kung only and should not include Barker, who should be discharged.

2. Counts on which the defence are conceding committal:

(i) Jason Tompkins

[6] Mr. Tompkins conceded that there was some evidence called in respect of each of the offences he is facing, as well as the two additional offences on which committal is sought by the Crown. Consequently, he will be ordered to stand trial on the following charges:

Provincial Information:

Count 4: On or about March 9, 2010, did import into Canada 12 firearms, knowing he was not authorized to do so, contrary to section 103(2) of the Criminal Code;

Count 5: On or about March 8, 2010, did offer to transfer 12 firearms, while knowingly not being authorized to do so, contrary to section 99 of the Criminal Code;

Count 7 (with MacDonald, Barker, Misangyi and Currie): Between November 25, 2009 and November 26, 2009, did possess eight firearms for the purpose of transferring them, while knowingly not being authorized to do so, contrary to section 100(2) of the Criminal Code;

Count 8 (with MacDonald, Barker, Misangyi and Currie): Between November 25, 2009 and November 26, 2009, did for the benefit of a criminal organization, commit an indictable offence, namely traffic firearms, contrary to section 467.12(1) of the Criminal Code;

Counts 9-16 (with MacDonald, Barker, Misangyi and Currie): Between November 25, 2009 and November 26, 2009, did possess eight separate firearms, contrary to section 91(3) of the Criminal Code;

Count 17 (with MacDonald, Barker, Misangyi and Currie): Between November 25, 2009 and November 26, 2009, did possess six prohibited weapons with readily accessible ammunition, contrary to section 95(2) of the Criminal Code;

Count 18 (with MacDonald, Barker, Misangyi and Currie): Between November 25, 2009 and November 26, 2009, did possess two restricted firearms with readily accessible ammunition, contrary to section 95(2) of the Criminal Code;

Count 19: Between December 30, 2009 and January 1, 2010, did conspire with Devon Arthurs to commit the indictable offence of Robbery by communicating through text messages and phone conversations, contrary to section 465(1)(c) of the Criminal Code; and

Count 20 (with MacDonald, Barker, Misangyi and Currie): Between November 25, 2009 and November 26, 2009, did transfer firearms, while knowingly not being authorized to do so, contrary to section 99(2) of the Criminal Code.

Additional Counts:

Between November 25, 2009 and November 26, 2009, did instruct in the Trafficking in Firearms for Benefit of a Criminal Organization, contrary to section 467.13 of the Criminal Code; and

Between February 26, 2010 and March 9, 2010, did instruct in the Trafficking in Firearms for Benefit of a Criminal Organization, contrary to section 467.13 of the Criminal Code.

(ii) Phillip MacDonald

[7] Mr. MacDonald conceded that there was some evidence called in respect of the following offences he is facing and, consequently, he will be ordered to stand trial in respect of the following counts:

Federal Information:

Count 1 (with Currie): On or about January 13, 2010, did unlawfully possess a substance, namely cannabis (marihuana), contrary to section 4(1) of the CDSA;

Count 2 (with Currie): On or about January 13, 2010, did unlawfully possess, for the purpose of trafficking, a substance, namely cannabis (marihuana), contrary to section 5(2) of the CDSA;

Count 3: On or about January 20, 2010, did unlawfully possess a substance, namely cannabis (marihuana), contrary to section 4(1) of the CDSA;

Count 4: On or about January 20, 2010, did traffic in a substance, namely cannabis (marihuana), contrary to section 5(1) of the CDSA;

Count 5: On or about January 20, 2010, did unlawfully possess, for the purpose of trafficking, a substance, namely cannabis (marihuana), contrary to section 5(2) of the CDSA;

Count 6: On or about January 25, 2010, did unlawfully possess a substance, namely cannabis (marihuana), contrary to section 4(1) of the CDSA;

Count 7: On or about January 25, 2010, did unlawfully possess, for the purpose of trafficking, a substance, namely cannabis (marihuana), contrary to section 5(2) of the CDSA;

Count 8: On or about February 26, 2010, did unlawfully possess a substance, namely cocaine, contrary to section 4(1) of the CDSA;

Count 21 (with Mahdavi-Damghani): On or about March 10, 2010, did unlawfully possess a substance, namely cannabis (marihuana), contrary to section 4(1) of the CDSA;

Count 22 (with Mahdavi-Damghani): On or about March 10, 2010, did unlawfully possess, for the purpose of trafficking, a substance, namely cannabis (marihuana), contrary to section 5(2) of the CDSA; and

Count 23 (with Mahdavi-Damghani): On or about March 10, 2010, did unlawfully possess a substance, namely cocaine, contrary to section 4(1) of the CDSA.

Amended Counts in Federal Information:

Count 9: Both the Crown and Mr. Mirosolin agreed that this count should be amended to allege that, on February 26, 2010, Mr. MacDonald (alone) did possess, for the purpose of trafficking, a substance, namely cocaine, contrary to section 5(2) of the CDSA.

Count 10: Both the Crown and Mr. Mirosolin agreed that this count should be amended to allege that, between December 16, 2009 and December 17, 2009, Mr. MacDonald (with John Robert Currie and Tsz Kei Kung) did traffic in a substance, namely cannabis (marihuana), contrary to section 5(1) of the CDSA; and

Count 11: Both the Crown and Mr. Mirosolin agreed that this count should be amended to allege that, between December 17, 2009 and December 19, 2009, Mr. MacDonald (with John Robert Currie and David Ronald Barker) did traffic in a substance, namely cannabis (marihuana), contrary to section 5(1) of the CDSA.

Provincial Information:

Count 7 (with Tompkins, Barker, Misangyi and Currie): Between November 25, 2009 and November 26, 2009, did possess eight firearms for the purpose of transferring them, while knowingly not being authorized to do so, contrary to section 100(2) of the Criminal Code;

Counts 9-16 (with Tompkins, Barker, Misangyi and Currie): Between November 25, 2009 and November 26, 2009, did possess eight separate firearms, contrary to section 91(3) of the Criminal Code;

Count 17 (with Tompkins, Barker, Misangyi and Currie): Between November 25, 2009 and November 26, 2009, did possess six prohibited weapons with readily accessible ammunition, contrary to section 95(2) of the Criminal Code;

Count 18 (with Tompkins, Barker, Misangyi and Currie): Between November 25, 2009 and November 26, 2009, did possess two restricted firearms with readily accessible ammunition, contrary to section 95(2) of the Criminal Code;

Count 20 (with Tompkins, Barker, Misangyi and Currie): Between November 25, 2009 and November 26, 2009, did transfer firearms, while knowingly not being authorized to do so, contrary to section 99(2) of the Criminal Code;

Count 21: On or about January 25, 2010, did possess a firearm, namely a revolver, without being the holder of a licence permitting such possession and the holder of a registration certificate for the said firearm, contrary to section 91(3) of the Criminal Code;

Count 22: On or about January 25, 2010, did possess a firearm, namely a revolver, while knowingly not being the holder of a licence permitting such possession and the holder of a registration certificate for the said firearm, contrary to section 92(3) of the Criminal Code;

Count 23: On or about January 25, 2010, did possess a loaded prohibited firearm, namely a revolver, at 30 Grand Trunk Crescent, without being the holder of a licence permitting such possession at that place and the holder of a registration certificate for the said firearm, contrary to section 95(2) of the Criminal Code;

Count 24: On or about February 26, 2010, did possess proceeds of property, namely money exceeding $5000, knowing that all or part of the said proceeds had been obtained by an offence punishable by indictment, contrary to section 354(1) of the Criminal Code;

Count 34 (with Mahdavi-Damghani): On or about March 10, 2010, did possess a firearm, without being the holder of a licence permitting such possession and the holder of a registration certificate for the said firearm, contrary to section 91(3) of the Criminal Code; and

Count 35 (with Mahdavi-Damghani): On or about March 10, 2010, did possess a loaded restricted firearm, namely a Colt handgun, at 30 Grand Trunk Crescent, without being the holder of an authorization or licence permitting such possession at that place and the holder of a registration certificate for the said firearm, contrary to section 95(2) of the Criminal Code.

Amended Counts in Provincial Information:

Count 6: Both Crown and Mr. Mirosolin and Mr. Pearce agreed that this count should be amended to allege two conspiracies instead of one.

(a) The first conspiracy alleges that between December 16, 2009 and December 17, 2009, Mr. MacDonald (with John Robert Currie and Tsz Kei Kung) did conspire together to commit the indictable offence of trafficking in a schedule II substance, namely cannabis (marihuana), contrary to section 465(1) (c) of the Criminal Code; and

(b) The second conspiracy alleges that between December 17, 2009 and December 19, 2009, Mr. MacDonald (with John Robert Currie and David Ronald Barker) did conspire together to commit the indictable offence of trafficking in a schedule II substance, namely cannabis (marihuana), contrary to section 465(1) (c) of the Criminal Code.

Additional Counts Sought by the Crown:

Between November 25 and 26, 2009, did possess firearms and ammunition in contravention of a lifetime section 109 order, contrary to section 117.01 of the Criminal Code;

Between February 18 and 19, 2010, did conspire (with Serrano) to traffic in a substance, namely cannabis (marihuana) (40 pounds), contrary to section 465(1)(c) of the Criminal Code;

On or about February 22, 2010, did conspire with persons unknown to traffic in a substance, namely methamphetamine (1 kilogram), contrary to section 465(1)(c) of the Criminal Code;

Between February 17 and 26, 2010, did conspire (with Serrano) to traffic in a substance, namely cocaine (10 kilograms), contrary to section 465(1)(c) of the Criminal Code; and

Between February 17 and 26, 2010, did traffic (with Serrano) in a substance; namely cocaine (10 kilograms), contrary to section 5(1) of the CDSA.

(iii) Francesco Serrano

[8] Mr. Serrano conceded that there was some evidence called in respect of the following offences he is facing and, consequently, he will be ordered to stand trial in respect of the following counts:

Federal Information:

Count 18: On or about February 17, 2010, did unlawfully possess a substance, namely Diacetylmorphine (heroin), contrary to section 4 (1) of the CDSA:

Count 19: On or about February 17, 2010, did unlawfully possess a substance, namely Diacetylmorphine (heroin), for the purpose of trafficking, contrary to section 5(2) of the CDSA; and

Count 20: On or about February 17, 2010, did unlawfully traffic in a substance, namely Diacetylmorphine (heroin), contrary to section 5(1) of the CDSA.

Provincial Information:

Count 2: On or about March 10, 2010, did, without the consent of a peace officer, attempt to take a weapon, namely a firearm, in the possession of Mike Fonseca, a peace officer engaged in the execution of his duty, contrary to section 270.1(3) of the Criminal Code;

Count 3: On or about March 10, 2010, did possess proceeds of property, namely money of a value exceeding $5000, knowing that all or part of the said proceeds had been obtained by an offence punishable by indictment, contrary to section 354(1) of the Criminal Code; and

Count 27: On February 17, 2010, did conspire (with Boris Agarunov and Ronald George) to traffic in a substance, namely heroin, contrary to section 465(1)(c) of the Criminal Code.

Additional Counts Sought by the Crown:

Between February 18 and 19, 2010, did conspire (with MacDonald) to traffic in a substance, namely cannabis (marihuana) (40 pounds), contrary to section 465(1)(c) of the Criminal Code;

Between February 17 and 26, 2010, did conspire (with MacDonald) to traffic in a substance, namely cocaine (10 kilograms), contrary to section 465(1)(c) of the Criminal Code; and

Between February 17 and 26, 2010, did traffic (with MacDonald) in a substance, namely cocaine (10 kilograms), contrary to section 5(1) of the CDSA.

(iv) David Robert Barker

[9] Mr. Barker conceded that there was some evidence called in respect of the following offences he is facing and, consequently, he will be ordered to stand trial in respect of the following counts:

Federal Information

Count 11: Both the Crown and Mr. Pearce agreed that this count should be amended to allege that between December 17, 2009 and December 19, 2009, Mr. MacDonald (with John Robert Currie and David Ronald Barker) did traffic in a substance, namely cannabis (marihuana), contrary to section 5(3) of the CDSA.

Provincial Information

Count 6: Both the Crown and Mr. Pearce agreed that this count should be amended to allege two conspiracies instead of one. Mr. Barker was involved in the second conspiracy. (See above, paragraph 7 dealing with Mr. MacDonald.)

(b) The second conspiracy alleges that between December 17, 2009 and December 19, 2009, Mr. Barker (with John Robert Currie and Phillip MacDonald) did conspire together to commit the indictable offence of trafficking in a schedule II substance, namely cannabis (marihuana), contrary to section 465(1) (c) of the Criminal Code; and

Count 28: On or about March 10, 2010, did possess a prohibited device, to wit, brass knuckles, contrary to section 92(3) of the Criminal Code.

(v) John Robert Currie

[10] Mr. Currie conceded that there was some evidence called in respect of the following offences he is facing and, consequently, he will be ordered to stand trial in respect of the following counts:

Amended Counts in the Federal Information:

Count 10: Both the Crown and Mr. Elbirt (on behalf of Mr. Engel) agreed that this count should be amended to allege that, between December 16, 2009 and December 17, 2009, Mr. Currie (with Philip MacDonald and Tsz Kei Kung) did traffic in a substance, namely cannabis (marihuana), contrary to section 5(1) of the CDSA; and

Count 11: Both the Crown and Mr. Elbirt (on behalf of Mr. Engel) agreed that this count should be amended to allege that, between December 17, 2009 and December 19, 2009, Mr. Currie (with Phillip MacDonald and David Ronald Barker) did traffic in a substance, namely cannabis (marihuana), contrary to section 5(1) of the CDSA.

(vi) Katherine Susan Misangyi

[11] Ms. Misangyi did not concede committal in respect of any of the charges she is facing.

(vii) Shabnam Mahdavi-Damghani

[12] Ms. Mahdavi-Damghani conceded that there was some evidence called in respect of the following offence she is facing and, consequently, she will be ordered to stand trial in respect of the following count:

Federal Information:

Count 23 (with MacDonald): On or about March 10, 2010, did unlawfully possess a substance, namely cocaine, contrary to section 4(1) of the CDSA.

3. Factual Background:

[13] The Crown led evidence during the preliminary hearing relating to different “Events” which are hereinafter set out. I was advised by the Crown that notice had been provided to the defence, pursuant to section 540(8) of the Criminal Code, that the Crown would be relying on Detective Wright, the officer-in-charge of the case, to give evidence as to information that would not otherwise be admissible because it was hearsay. For example, evidence relating to surveillance conducted by police officers or intercepted communications of which Detective Wright was aware but not personally involved in.

[14] A practice developed during the preliminary hearing where individual defence counsel would request that a particular police officer involved in the surveillance be called for the purpose of cross-examination. No objection was taken by any of the defence counsel to Detective Wright providing hearsay evidence, for the purposes of the preliminary hearing only. I should indicate that I was not provided with a copy of the notice pursuant to section 540(8).

[15] I will not provide the factual background of any of the Events where committal has been conceded by all of the defendants charged in that particular Event. For example, the factual background of Events #5 and #6 will not be set out because Mr. Tompkins has conceded committal on the charge arising from Event #5 (Count 19: Provincial Information) and Mr. MacDonald has conceded committal on the charges arising from Event #6 (Counts 3, 4 and 5: Federal Information).

(i) Event #1

[16] On November 19, 2009 at 12:22 p.m., a telephone call[^2] was intercepted between Mr. MacDonald and an unknown individual, later identified by voice identification as David Ronald Barker. During the call, Mr. MacDonald asked Mr. Barker if he was “coming down”, to which Mr. Barker replied, “I got something in the works I should find out today about it.” Mr. Barker continued by saying, “But the only thing is I can’t, I can’t give it all to ya.” Mr. MacDonald replied, “No problem.” Mr. Barker then said, “I can like I can give ya five okay.”

[17] Later on in the same call, Mr. Barker told Mr. MacDonald, “And uh I’ll give you a call later on tonight and tell ya what’s goin on.” Mr. MacDonald replied, “Okay like I told you tons of trees down here eh.”

[18] On the same day at 2:43 p.m., Mr. Barker called back[^3] and told Mr. MacDonald, “And um what I said before I’ll probably be able to do sumpin better.”

[19] On November 24, 2009, there was an intercepted phone call between Mr. Tompkins and Ms. Misangyi. The conversation was very short and was transcribed as follows:

KM: Hello?

JT: What’s goin’ on lady?

KM: Uh, did you wanna, um, go to MacDonald’s or somethin’?

JT: Yeah. Like, in a while. I’m just in the middle of somethin’ but, yeah. I’m, uh – I was just gonna do what we said in the first place. I was gonna…

KM: Yeah, yeah, exactly. ’Cause…

(Note: Both KM and JT are saying the next two comments at the same time)

JT: Okay. No problem. Just don’t say a word.

KM: ’Cause, uh – I’m ready to go visit my family right now.

JT: Okay. Good. Okay. That’s awesome. I’ll, uh…

KM: Okay?

JT: Yeah. Okay. All right.

KM: Okay. Okay

JT: Bye.

KM: Bye.

[20] Mr. Barker called Mr. MacDonald again on November 25, 2009 at 10:42 a.m.[^4] and advised that he would be seeing Mr. MacDonald in about 4 hours. Thereafter, there are a number of intercepted calls and texts between the two men relating to Mr. Barker’s progress in coming from Windsor to Toronto.

[21] On November 25, 2009 at 9:17 a.m., Mr. Tompkins sent a text[^5] to Ms. Misangyi, “Good morning, having breakfast.” Mr. Tompkins also sent a text[^6] to Mr. Barker, “You leave” and Mr. Barker responded, “Yes.” Detective Wright testified that the police had information that Mr. Tompkins was involved in smuggling illegal firearms into Canada from the United States.

[22] On November 25, 2009 at 1:37 p.m., Mr. MacDonald phoned[^7] Mr. Barker asking where he was. Mr. MacDonald was under surveillance and was observed being driven by Mr. Currie in a green Jeep, licence #BFEX 834, at the Spy Depot, 3271 Dufferin Street, Toronto. Information was received that Mr. MacDonald was going to meet with the person from Windsor, Mr. Barker, in a car, licence #AZKY 614.

[23] At 5:03 p.m.,[^8] Mr. Barker advised Mr. MacDonald that he was just outside the front of the Spy Depot and would see him in a couple of minutes. At 5:05 p.m., the green Jeep was seen in the area of Spy Depot. At 5:06 p.m., Mr. MacDonald was observed walking with Mr. Barker to a Ford Taurus, licence #AZKY 614, registered to David Barker, 1608 Hickory Road, Windsor. They got into that vehicle and were followed by police surveillance to Bling, an urban clothing store at 582 Danforth Avenue, Toronto. This is a store operated by Mr. MacDonald. Mr. Barker was described as male, white, 6’2”, 250 pounds, short brown hair, goatee, wearing a waist length green camouflage jacket with hood and tan boots. Mr. MacDonald and Mr. Barker were identified, in the prisoner box, by Detective Asselin, one of the surveillance officers.

[24] Mr. Currie was observed leaving the Spy Depot in the green Jeep around this time but no evidence was called indicating where he went or what he did. The next time Mr. Currie is observed is at 6:24 p.m. (see paragraph 30 below).

[25] At 5:52 p.m., the Taurus was seen arriving at the back of Bling, in a laneway, and parked. A camera had been installed by police, which monitored the back door of Bling. Images were transmitted to the command post at the “wire room” at OPP headquarters in Orillia. There was also an unknown female in Mr. Barker’s vehicle. All three were observed going into the back door of Bling.

[26] At 5:54 p.m., Mr. Barker was observed exiting the back door of Bling and walking down the laneway towards Carlaw. He then walked south to Danforth and then west on Danforth to Logan. Detective Sergeant Shank, one of the surveillance officers, followed Mr. Barker on foot. Mr. Barker was standing on the southeast corner of Danforth and Logan in front of a Tim Hortons. As Detective Sergeant Shank crossed Logan, he observed an unknown woman, later identified as Katherine Misangyi[^9], walking from a red vehicle parked on Logan. Ms. Misangyi was observed speaking with Mr. Barker on the corner of Logan and Danforth.

[27] Mr. Barker and Ms. Misangyi then walked back across Logan to the red Cavalier, Licence # BFTW 178, registered to Vanessa Antonio, 765 University Avenue East, Windsor. There was an unknown male in the front passenger seat of this vehicle. Mr. Barker got into the back seat of the car. At 6:01 p.m., the vehicle pulled away and began driving northbound on Logan. Detective Sergeant Shank broadcast information about this red Cavalier; however, none of the members of the surveillance team were able to follow the vehicle and it was lost.

[28] Detective Sergeant Shank did not observe any hand to hand exchange between Ms. Misangyi and Mr. Barker. Ms. Misangyi was not carrying anything in her hands. Detective Sergeant Shank was not able to overhear any of the conversation between Mr. Barker and Ms. Misangyi.

[29] At 6:05 or 6:06 p.m., Mr. Barker was again observed by Detective Greg Walters walking back into the back door of Bling. There was no evidence led as to where he came from prior to entering Bling. At 6:07 p.m., Detective Walters observed Mr. MacDonald coming into the back door of Bling carrying something heavy. He is then observed carrying something heavy behind the counter inside Bling. Mr. Barker and the unknown female could also be seen inside Bling.

[30] At 6:24 p.m., Mr. Currie arrived at the laneway behind Bling in the green Jeep. He was observed by Detective Constable Steinwell entering the back door of Bling carrying a large hockey bag. Mr. Currie had been seen earlier on November 25, 2009 putting this same hockey bag into the green Jeep. There was no evidence led as to whether the hockey bag contained anything within it, or whether it appeared to be heavy, on any of the occasions that Mr. Currie was seen handling it. Mr. Barker and Mr. MacDonald were observed walking to the back of the store when Mr. Currie entered through the back door.

[31] At 6:31 p.m., Mr. Tompkins texted[^10] Ms. Misangyi, “Everything’s okay?” There was no response by Ms. Misangyi. At 6:40 p.m., Mr. Tompkins texted[^11] Mr. Barker and asked the same question, “Everything’s okay?” Mr. Barker responded in a text[^12] to Mr. Tompkins at 6:41 p.m. “ya, just working out the details.” Mr. Barker was inside the Bling store with Mr. MacDonald at the time these texts were exchanged between Mr. Tompkins and Mr. Barker. At 7:28 p.m., Ms. Misangyi sent a text[^13] to Tompkins’ phone, “Heading home now.”

[32] At 6:34 p.m., Mr. MacDonald sent a text,[^14] “Call”, to a phone number registered to Mike Smith with an address of 220 Yonge Street, which is the Eaton’s Centre (police believe this is a fictious name and address). At 6:44 p.m., Mr. MacDonald received a phone call[^15] from “Rambo” during which they talked about a meeting the next day at 12 o’clock. During the evening of November 25, Mr. MacDonald made a couple of calls[^16] to individuals advising that his dog had pups and were they interested in buying some. Meetings were arranged and in one conversation the unknown individual indicated that the pups had been pricey previously, to which Mr. MacDonald said that he had some half breeds for sale, Shepherds and Chihuahuas. It was Detective Wright’s evidence that Mr. MacDonald was speaking about the sale of guns when he was referring to “pups”; although, he was not qualified as an expert to provide this opinion. There was however no objection by the defence.

[33] At 6:51 p.m., Mr. Barker was observed inside Bling carrying a black laptop bag with large hoop handles. At 6:54 p.m., Mr. Barker and the unknown female left Bling in the Ford Taurus and were followed by surveillance to the Beach Motel on Lakeshore Avenue. No further surveillance was conducted on Mr. MacDonald or Mr. Currie after Mr. Barker left Bling.

[34] At 11:12 p.m., Ms. Misangyi sent a text[^17] to Mr. Tompkins’ phone, “Almost home.” At 11:19, Ms. Misangyi received a call[^18] from her husband, David Faubert, on Mr. Tompkins’ phone, where she indicated that she would be at the house in 11 minutes.

[35] On November 26, 2009, at 5:42 p.m., Mr. MacDonald received a phone call[^19] from Rambo advising that he was sending someone to Bling at 9:30 that night.

[36] At 8:41 p.m., Mr. Barker sent a text[^20] to Mr. MacDonald asking, “What’s going on?” Mr. MacDonald responded at 8:43 p.m.,[^21] “I’ve got files, tree guy being slow but going to come true.” At 8:45 p.m., Mr. Barker sent another text,[^22] “So, tomorrow?” Mr. MacDonald responded,[^23] “Ya, one or the other.”

[37] There were a couple of calls,[^24] commencing at 9:08 p.m., between Rambo and Mr. MacDonald. Sometime prior to 9:37 p.m., the surveillance team observed Mr. MacDonald and Mr. Currie leave Bling in the Jeep with Mr. Currie driving. In a call beginning at 9:37 p.m., Rambo told Mr. MacDonald that his guy was there, referring to the store, Bling. Mr. MacDonald said that he had already left. Rambo again said that his guy was at the store right now. Mr. MacDonald advised Rambo not to make him go back for a “fuckin joke” but ultimately he agreed that he would go back to Bling.

[38] Detective Wright testified that after this call from Rambo to Mr. MacDonald asking him to come back to Bling, the Jeep was observed in the laneway behind Bling at 10:11 p.m. Mr. Currie and Mr. MacDonald were seen getting out of the Jeep. Mr. Currie was observed giving Mr. MacDonald a bag with handles. Mr. Currie drove the Jeep away[^25] and Mr. MacDonald entered the back door of Bling. At no time was Mr. Currie observed by surveillance officers to ever open the bag or inspect its contents.

[39] Earlier, at 9:54 p.m., Sergeant Awad testified that Detective Sergeant Shank provided information that three young males exited Bling and went into a café next door. Sergeant Awad observed these three individuals exit the café at 10:18 p.m. and stand outside Bling. Someone inside Bling came to the door and waved one of these individuals, later identified as Joseph Mujuzi, inside. Sergeant Awad believed the person motioning Mujuzi to come inside the store was an employee of Bling. The other two individuals walked westbound on Danforth Avenue, stopped and appeared to be waiting near Carlaw. The person who went into Bling was a black male. He was not carrying anything in his hands when he entered the store.

[40] Mr. Mujuzi was observed exiting Bling through the back door carrying a large shopping bag with handles. It was the same bag taken out of the Jeep by Mr. Currie and handed to Mr. MacDonald at 10:11 p.m. Exhibit 7A is a photocopy of a photograph depicting a red/blue Compliments shopping bag with white lettering and handles. Sergeant Mancuso testified that this bag appeared to be very heavy. Mr. Mujuzi joined up with the other two young men at Carlaw and Danforth and at approximately 10:35 p.m. all three, Joseph Mujuzi, Tony Chau and Karl Silverstone, were arrested by police officers. Eight firearms were discovered in the shopping bag. None of the firearms were registered to any of the individuals involved. Exhibit 7B is a photocopy of a photograph looking down into the top of the Compliments bag where several handguns can be seen. Exhibit 7C is a photocopy of a photograph showing all eight firearms removed from the Compliments bag. Exhibit 1 is a report from the Centre of Forensic Sciences containing certificates of analysis for each of the eight firearms, which was admitted for the purposes of the preliminary inquiry by all counsel.

[41] On November 27, 2009, Mr. MacDonald placed a number of calls to Joseph Mujuzi, asking him to call.[^26] There were a number of intercepted phone calls[^27] involving Mr. MacDonald and others, during which he discussed the arrest of Mr. Mujuzi and the other two young men. In one of the calls[^28] Mr. MacDonald called Mr. Currie and discussed the arrest of the three young men the night before. Mr. Currie expressed that he “wouldn’t think those kids would be involved with anything like that” and said he was “shocked.” Mr. MacDonald told Mr. Currie that he had spoken to Karl’s father and that Karl was released on bail. Mr. MacDonald said that they were arrested at 10:30 p.m. and that it was weird because he did not see anything on the Danforth. Mr. Currie asked if they were up there during that time and Mr. MacDonald said they were there (in Bling) from ten to twelve. Mr. Currie then said, he “didn’t see anything” and “you know like they don’t seem like the kind of kid right…” and he’s “flabbergasted.” Mr. Currie then said to Mr. MacDonald, “Holy shit well that’s uh fuckin gonna bring the fuckin heat down on you though.” Mr. MacDonald said, “For what?” Mr. Currie said, “Um the store there were they coming from the store.” Mr. MacDonald responded, “I don’t know man I was so sick I was laying here today.” The remainder of the conversation then focussed on the fact that they were each suffering from H1N1 and the steps they were taking to get well.[^29]

[42] As indicated in paragraph 6, supra, Mr. Maini, on behalf of Mr. Tompkins, conceded committal on all charges arising out of Event #1. As indicated in paragraph 7, supra, Mr. Mirosolin, on behalf of Mr. MacDonald, conceded committal on all charges arising out of Event #1, with the exception of any charges involving allegations relating to the substantive offences being committed for the benefit of a criminal organization. All of the other defendants; namely, Mr. Currie, Mr. Barker and Ms. Misangyi, who were charged with offences arising out of Event #1, are contesting committal.

3. Factual Background:

(ii) Event #2

[43] Between December 14 and 17, 2009, there were numerous text messages[^30] and phone calls involving Mr. MacDonald and Mr. Tsz-Kei Kung and Mr. MacDonald and Mr. Currie, relating to the purchase by Mr. MacDonald of several pounds of marihuana from Mr. Kung. Mr. Currie acted as a courier by delivering money and obtaining the marihuana from Mr. Kung. During the text messages on December 14, 2009 Mr. Kung advised Mr. MacDonald that there was “no more cheap stuff” and that he had “2400, 26, 28 and 32”, the “apple juice” is 2400 and the “purple” is 3250. P.C. Salhia was qualified as an expert in drug trafficking and drug subculture in respect of marihuana. It was his evidence that these texts reflected negotiations between Mr. MacDonald, as the purchaser, with Mr. Kung, as the seller/vendor of the cannabis marihuana and referred to different types of marihuana and their corresponding prices.

[44] On December 16, 2009, there were a number of text messages between Mr. MacDonald and Mr. Kung where they discussed meeting to do a 5 pound transaction of marihuana.[^31] Mr. Kung asked Mr. MacDonald, “So u want to see picture first or just 5?” which Detective Wright testified he understood this to be asking if Mr. MacDonald needed to see a picture of the marihuana first or was he prepared to just get the 5 pounds. Mr. MacDonald responded, “Yes bro but you no not me bro.” which Detective Wright testified he understood to mean that Mr. MacDonald did not need to see a picture. Mr. MacDonald arranged to meet with Mr. Kung at a Petro Canada gas station at Steeles and Kennedy Road.

[45] On December 17, 2009, Mr. MacDonald arranged to meet Mr. Kung at 7 p.m. at the Burger King at Pharmacy and Eglinton. Mr. Currie was followed by the surveillance team and he arrived at the Burger King after 7 p.m. Prior to this there was a vehicle probe intercept inside the green Jeep, licence #BFEX 834, where Mr. Currie asked if he was supposed to look for a particular size and Mr. MacDonald said they were supposed to give him five pounds.[^32] Mr. Kung was also at the Burger King in his white Pontiac vehicle, licence #BHTD 080. He and Mr. Currie met and went to the rear passenger door of the Jeep. At 7:39 p.m., Mr. Kung walked to the trunk of his car, removed a cardboard box (2 ft x 2 Ft x 1 ft), then walked to the Jeep and placed it in the rear passenger seat of the Jeep. Mr. Currie was observed handing something over to Mr. Kung, which he placed into his rear pocket.

[46] Mr. Currie was followed by surveillance to 30 Denton Avenue (Mr. MacDonald’s mother’s address) where he took the cardboard box from the Jeep and placed it into the trunk of Mr. MacDonald’s Cadillac, licence #BHPD 109. At 7:48 p.m. there was a text from Mr. Kung to Mr. MacDonald, “Fuck, man, call me back ASAP.” At 7:49 p.m., there was an intercepted call[^33] where Mr. Kung complained that Mr. MacDonald shorted him money. Mr. Kung told him “Not for five man” and “No it’s not for sure I’m not joking it’s I got only six thousand three hundred ninety in here buddy…” Mr. MacDonald agreed that he would send Mr. Currie back to return the box and Mr. Kung would return the money.

[47] Mr. MacDonald called[^34] Mr. Currie and told him to take the box back but to take out a sample and not tell Mr. Kung. At 7:55 p.m., Mr. Currie was observed returning to the Cadillac, retrieving the box and putting it in the Jeep. He returned to Burger King. Ultimately Mr. Kung and Mr. MacDonald agreed that Mr. Kung would only “take one back.”[^35] At 8:04 p.m., Mr. MacDonald and Mr. Kung agreed that Mr. Kung would give 200 back and Mr. MacDonald would take only four.[^36] Detective Constable Sahlia testified that Mr. MacDonald and Mr. Kung re-negotiated the quantity to be four pounds and Mr. Kung was to receive one pound back and give Mr. MacDonald $200 back.

[48] Mr. Currie arrived at Burger King and after he boosted Mr. Kung’s car they both drove to a different part of the parking lot. Mr. Kung went to the rear of the Jeep and appeared to be moving some things around while Mr. Currie watched. Mr. Kung took something from the Jeep and put it into the back seat of his car. He then got into his car and Mr. Currie was observed speaking to Mr. Kung through the window. Mr. Kung handed something to Mr. Currie, who got into the Jeep and drove back to Denton Avenue.

[49] At 9:44 p.m., Mr. MacDonald called[^37] Mr. Barker and told him he could only grab three. Mr. MacDonald said that he could have someone drive it down that night but Mr. Barker told him to come the next day. Mr. Currie was followed from Toronto to Windsor the next day in the Cadillac, where he met with Mr. Barker. They were observed standing near the trunk of the Cadillac and then they walked into the back door of 1264 Wyandotte Street, Windsor. On December 18, 2009, at 7:02 p.m., in an intercepted call between Mr. MacDonald and Mr. Barker, Mr. Barker advised that Mr. Currie had not left yet as Mr. Barker’s guy did not get off until 11:30 and Mr. MacDonald said that Mr. Currie could wait till then. On December 19, 2009, at 5:51 p.m., Mr. Currie was observed by surveillance at a gas station in Windsor.

[50] As indicated in paragraph 7, supra, and paragraph 9, supra, both Mr. Mirosolin, on behalf of Mr. MacDonald, and Mr. Pearce, on behalf of Mr. Barker, conceded committal on all charges arising from Event #2. Mr. Elbirt, on behalf of Mr. Currie, conceded committal on the substantive charges; however, he did not concede that Mr. Currie was part of any conspiracy to traffic in marihuana. None of the defendants concede that these activities were committed to benefit a criminal organization.

(iii) Event #3

[51] On January 13, 2010, at 11:53 a.m., Mr. MacDonald left 30 Denton in a black Yaris, licence #BHXC 373, and drove to the Training Room. At 1:52 p.m., Mr. MacDonald left the Training Room and drove to 5 Roseglor, which was a house. An unknown male came out of the house with a purple shopping bag and a gold box and placed them into the trunk of the Yaris. At 1:57 p.m., Mr. MacDonald drove to River Street and picked up Mr. Currie. Mr. MacDonald then drove to 1005 Finch Avenue and they both exited the car and went inside.

[52] At 3:44 p.m., Mr. Currie exited 1005 Finch Avenue, got into the Yaris and drove to 11 Vanley Crescent. He exited the Yaris and went into Unit #3. At 3:53 p.m., Mr. Currie left that address and drove to the Spy Depot, arriving at 4:14 p.m. Mr. Currie went into the Spy Depot briefly, exited at 4:17 p.m. and drove to the Bistro Bar and Grill, arriving at 4:36 p.m. At some point, while Mr. Currie was going to the above-noted addresses, Mr. MacDonald, who was still at 1005 Finch Avenue, exited that address and walked to 4544 Dufferin Street.

[53] Mr. Currie exited the Bistro Bar and Grill and walked to 1005 Finch Avenue, which was close by. At 4:39 p.m., Mr. Currie exited the Finch address and then drove to 4544 Dufferin Street where he got out of the Yaris and went into unit #5. He then exited that unit at 4:47 p.m., retrieved the gold box from the Yaris’ trunk and took it into that address.

[54] At 4:55 p.m., Mr. Currie exited 4544 Dufferin Street and got into the Yaris and drove, once again, to 11 Vanley Crescent, Unit #3. Mr. Currie entered the unit with nothing in his hands. At 5:10 p.m., Mr. Currie was observed by Sergeant Awad to exit 11 Vanley carrying, in his left hand, a white recycling bag with green down both side panels and green loop handles. The bag appeared to be full of something. Mr. Currie placed the bag into the trunk of the Yaris. Sergeant Awad never saw what was inside the bag. Mr. Currie then drove to 4544 Dufferin Street, arriving at 5:21 p.m. He went inside and was not carrying anything.

[55] At 5:33 p.m., both Mr. Currie and Mr. MacDonald exited 4544 Dufferin Street. Mr. MacDonald was now driving the Yaris and he drove to Yorkville and parked in front of the Four Seasons Hotel. At approximately 6:16 p.m., an unknown female was observed locking up a store, Gabbana. She then walked to the Yaris and got into the back seat. The vehicle was followed to Mr. Currie’s address, 60 River Street and Mr. Currie exited the vehicle at 6:33 p.m. and went into his residence. Mr. MacDonald drove to 970 Queen Street and parked the Yaris in a parking lot for Shoppers Drug Mart. At 6:40 p.m., Mr. MacDonald and the woman exited the Yaris and went into a clothing store located at 952 Queen Street East.

[56] The police conducting the surveillance made a decision to enter the Yaris. It was believed that, based on previous observations of Mr. MacDonald, the white and green bag that Mr. Currie had placed in the trunk might contain either drugs or firearms. When Mr. Currie exited the Yaris at his home he did not remove the white recycling bag with green loop handles. It remained inside the trunk. Further, Mr. MacDonald never opened the trunk of the Yaris after he started to drive it again at 5:33 p.m.

[57] At 6:59 p.m., Detective Asselin and Detective Walters broke into the Yaris by breaking one of the passenger side windows. They opened the trunk and observed the white and green shopping bag. Inside this bag were three zip lock bags containing a substance that appeared to be marihuana. Each bag contained approximately one pound of marihuana. A sample was taken from one of the zip lock bags and it tested as cannabis marihuana.[^38] A purple bag, which Mr. Currie had placed earlier into the trunk, was also observed and it contained meat.

[58] Mr. MacDonald and the woman returned to the Yaris at 7:25 p.m. When Mr. MacDonald saw that a passenger window had been broken, he immediately went to the trunk, opened it and looked inside. He was observed looking into the trunk while he was talking to someone on a cell phone. At 7:30 p.m., Mr. MacDonald left the parking lot driving the Yaris.

[59] As indicated in paragraph 7, supra, Mr. Mirosolin conceded committal on behalf of Mr. MacDonald on the charges arising out of Event #3; however, Mr. Elbirt, on behalf of Mr. Currie, is contesting committal.

(iv) Event #7

[60] On the night of January 24, 2010, police executed a general warrant in relation to Mr. MacDonald’s condominium, located at 30 Grand Trunk Crescent, Unit #1201 in Toronto. Police entered the apartment surreptitiously. A medium-sized suitcase was found in plain view in the front hallway of the unit. It was opened by the police and was found to contain eight large sealed plastic bags of marihuana. Detective Glen Asselin examined these bags and was of the opinion that the contents of each were cannabis marihuana. Each bag was double-sealed and contained approximately one pound. The police did not open any of the bags to seize a sample of the marihuana as they did not want Mr. MacDonald to be aware that someone had gained entry into his condominium.

[61] During a search of the condominium, officers also located a loaded firearm in a kitchen cupboard above the fridge. The firearm was a silver coloured 38 calibre revolver with a black hand-grip. The markings “Official Police MK II 38 Special” and serial # “5581J” were engraved on the gun. A weigh scale was situated next to the firearm. The firearm was left where it was discovered so as not to alert Mr. MacDonald as to the entry by police. Mr. Mirosolin, on behalf of Mr. MacDonald, conceded that on January 25, 2010, pursuant to a general warrant, when police surreptitiously entered Mr. MacDonald’s residence at 30 Grand Trunk, Unit 1201, and Detective Asselin observed eight to ten sealed bags of cannabis marihuana, that the possession of this quantity of marihuana would have been for the purpose of trafficking. Mr. Mirosolin, on behalf of Mr. MacDonald, conceded committal on the charges arising from this Event.

[62] Detective Glenn Asselin was in charge of one of the surveillance teams assigned to follow Mr. MacDonald during this investigation. He was one of the officers involved in executing the general warrant on January 25, 2010 in respect of Unit 1201, 30 Grand Trunk Crescent. He was asked the following questions and provided the following answers during his examination-in-chief:[^39]

MR. GHOSH: Q. Now detective, if we could draw your attention to the date of January 5th, 2010 [sic]. I understand you were on duty that particular day?

A. January 5th, or January 25th?

Q. 25th.

A. Yes, I was.

Q. Okay, and what was the object of your investigatory role that particular day?

A. That evening we – the team intended on executing a general search warrant at 30 Grand Trunk Crescent, I think it’s apartment 1201.

Q. Okay, and from the information you had received, did you have a sense of who was attached to that particular property?

A. Yes, from surveillance that I had been involved in and from investigation that had been occurring, I believed that Phil MacDonald was the person who was in control of that address at that point in time.

Q. Okay, were you aware at the time of anyone else that may have been associated with that particular unit?

A. I can't recall, specifically.

(emphasis added)

[63] As indicated in paragraph 7, supra, Mr. Mirosolin, on behalf of Mr. MacDonald conceded committal in respect of the charges arising out of Event #7.

(v) Event #8

[64] Mr. Francesco Serrano resided at a condominium located at 130 Pond Drive, Unit #206 in Markham, Ontario. On February 17, 2010, at approximately 9:01 p.m., Mr. Serrano was involved in an intercepted telephone communication with Ronald George.[^40] Mr. Serrano told Mr. George that he was going to send “Boris”[^41] to collect an “Avatar” movie from Mr. George. During the conversation, Mr. Serrano asked Mr. George to write down the price relating to this movie for Moe, who Detective Wright believed referred to Maurice McClymont.[^42]

[65] Mr. George resided at 1407 Royal York Road, Apt. #1207, Toronto, Ontario. This address was 28 km from Mr. Serrano’s residence.

[66] Immediately after his call with Mr. George, Mr. Serrano called Mr. Agarunov.[^43] Mr. Serrano told Mr. Agarunov that he wanted him to go to see Ronnie and then come back to Mr. Serrano’s. He offered to pay Mr. Agarunov $80 to do this. Mr. Agarunov apparently operates a limousine service. Approximately 40 minutes later, Mr. Serrano telephoned Boris on two occasions to see where Boris was at and they discussed the buzzer number to get into Mr. George’s apartment building and the apartment number.[^44] Mr. Serrano confirmed in another call with Mr. George what the buzzer number was[^45] and then called Boris to confirm that he had the correct buzzer number.[^46]

[67] At 9:58 p.m., Mr. Agarunov advised Mr. Serrano that he was on his way back to Markham.[^47] Surveillance officers observed Mr. Agarunov’s vehicle arrive and park in the lot of Mr. Serrano’s apartment building. Detective Wright instructed Detective Constable Yeung to seize the package from Mr. Agarunov, if he was able to do so. Detective Wright believed that Mr. Agarunov was delivering controlled substances back to Mr. Serrano from Mr. George. It was his belief that if the package Mr. Agarunov picked up got into Mr. Serrano’s possession that the police would lose it.

[68] Mr. Agarunov exited his car and walked towards the entrance of the condominium carrying a Jacob’s store bag. As he got to the front entrance, Detective Constable Yeung, dressed in plain clothes, ran up and grabbed the bag out of Mr. Agarunov’s hand and ran away. Mr. Agarunov gave chase and ran after the officer but was unable to catch him. Mr. Agarunov called Mr. Serrano[^48] and told him that a Chinese guy had pushed him as he got to the front door of Mr. Serrano’s building, grabbed the bag and ran off. He tried to catch him but was unable to do so. Mr. Agarunov was completely out of breath during the phone call and Mr. Serrano was clearly agitated and upset by what he was told. Mr. Serrano wondered whether this was a police officer and Mr. Agarunov told him that it was just a young Chinese guy.

[69] When the police examined the bag it contained approximately a gram of a brown substance that later was tested to be heroin.[^49] There was an Avatar DVD and a piece of paper with handwriting, “62,500 per, there are two of them”[^50] inside a Fido phone box.[^51]

[70] Detective Constable Salhia was qualified as an expert in drug trafficking and drug subculture in respect of heroin. It was his evidence that the 62,500 refers to the price of a kilogram of heroin and that Mr. George was indicating in the handwritten note that he had two kilograms available for purchase. It was Detective Constable Salhia’s opinion that the telephone conversations reflect that Mr. Serrano was speaking to his supplier, Mr. George, and was attempting to purchase heroin from him. Mr. Agarunov was acting as a runner for Mr. Serrano.

[71] At 10:29 p.m., Mr. Serrano called[^52] Mr. George and advised him that while Boris was waiting for him at a Tim Hortons some Chinese guys had robbed him of the bag and Mr. Serrano wanted to know what was in the bag. Mr. Serrano asked Mr. George, “What was in the bag just a just a sample right?” Mr. George told him he was not saying and he couldn’t talk, to which Mr. Serrano responded, “Yeah, but nothing crazy big right?” Mr. George then said “no.” Mr. Serrano continued “…then the DVD and then the the granite sample right hello can you hear me brother.” Mr. George responded, “Bro bro you you know already.” To which Mr. Serrano responded, “Yeah I know I’m just saying nothing nothing really big there right hello.” Mr. George responded again, “no.” Mr. Serrano asked Mr. George what he wanted Mr. Serrano to do. They arranged for Mr. Serrano to come and see Mr. George in the morning.

[72] It was Detective Constable Salhia’s opinion that Mr. Serrano’s reference to “sample” was his attempt to ascertain whether the Jacob’s bag contained only a small quantity or sample of the heroin or the actual amount he was attempting to purchase. Mr. Serrano’s reference to “granite sample” and the Avatar DVD led Detective Constable Sahlia to the opinion that Mr. Serrano was talking about a heroin sample.

[73] There are three additional calls between Mr. George and Mr. Serrano[^53] where Mr. George expressed that he did not believe Boris’ story and he believed that the police may be involved in the taking of the bag. Mr. Serrano continually told Mr. George that he had nothing to worry about; it was just a young Chinese guy. Mr. Serrano was paying to get the camera from the Tim Hortons and he had spoken to a convenience store guy about that same Chinese guy. Mr. George told Mr. Serrano during these calls that everything was “smashed” or “mashed” now, which Detective Wright testified meant that the deal was finished; it was not going to happen anymore.

[74] The next day, February 18, Mr. Serrano called Boris on two occasions[^54] and told him that if Ronnie called, Mr. Agarunov was to tell him that the bag was taken outside the Tim Hortons and not outside the front entrance of Mr. Serrano’s condominium.

[75] Mr. MacDonald’s name is never mentioned in any of the intercepted telephone calls filed by the Crown. There was no evidence that Mr. MacDonald had any involvement in the transaction between Mr. George and Mr. Serrano.

[76] As indicated in paragraph 8, supra, Mr. Chartier, on behalf of Mr. Serrano, conceded committal on the trafficking, possession for the purpose of trafficking, possession and conspiracy to traffic charges involving this one gram of heroin. He did not concede that Mr. Serrano should be committed on Count 26 in the Provincial Information; namely, that between February 17, 2010 and March 10, 2010, Mr. Serrano did, for the benefit of a criminal organization, commit an indictable offence, namely trafficking heroin, contrary to section 467.12(1) of the Criminal Code.

(vi) Event #9

[77] On February 18, 2010, a series of PIN to PIN text messages[^55] between Mr. MacDonald and Mr. Serrano on their Blackberries were intercepted by police, pursuant to a judicial authorization. Mr. MacDonald’s PIN was identified as 208D4F39 Pop by police and this Blackberry was found by police on March 10, 2010, at his primary residence, 30 Denton Avenue. Mr. Serrano’s PIN was identified as 24B470EB 111 Handsome. Devell and his Blackberry was found on March 10, 2010, at his residence, 130 Pond Avenue, Apt 206, Markham. “Pop” is Mr. MacDonald’s nickname and “111 Handsome. Devell” is Mr. Serrano’s nickname on their Blackberries.

[78] During these text messages it became clear that Mr. Serrano was purchasing cocaine, on behalf of himself and Mr. MacDonald, from a supplier (never identified) that he had a previous relationship with. In numerous intercepted communications between Mr. Serrano and Mr. MacDonald, they refer to themselves as “partners” and that they are working together with respect to the purchase and sale of controlled substances.

[79] A transcript of the text messages between February 18, 2010 and February 26, 2010 was filed as Exhibit 22. The following text messages, sent on February 18, 2010, provide an example of the type of texts sent between Mr. MacDonald and Mr. Serrano:[^56]

111 Handsome. Devell: Morning bro hopefully today the work trust me I know I’m waiting pushing the guy he said it landed just waiting to clear

Pop: Okay I hear

Pop: Ya why so long with work? By the time we get the chins will be working again

111 Handsome. Devell: I wish iu knew my friend said landed here just waiting to clear any time I’m on him

111 Handsome. Devell: I’m not driving tonight tomo early. My friend have 10 how much?

Pop: Hoiw. Good it is. Why not tonight.

111 Handsome. Devell: Same like last time what price is good for us I need to ask him?

111 Handsome. Devell: It’s the best bro and what price do I aask him for?

111 Handsome. Devell: Fighting with him his telling me 39?

Pop: What you think?

111 Handsome. Devell: you tell me is 94 percent really good shit he wants 39 each 10 available I’m trying to tell him 38 is 39 to high?

Pop: Hey bro it is important to get befor the chins do bro ok

Pop: Bro if get it to late then eery one has already re uped then we have to what till they need more. We whant all the street $$$$ bro

Pop: If it is the same as last time that was real good stuff but we need befor every one

111 Handsome. Devell: Ok but his telling me 39 bro I’m trying for 38

Pop: Do you whant me to start txing the PPL?

111 Handsome. Devell: 39 he won’t go lower how many we need?

Pop: If tonight and it same stuff. We take it ALL. Partner!

[80] Mr. Serrano advised Mr. MacDonald through PIN to PIN text messages that his supplier had 10 pieces but would only supply 2 at a time. Mr. Serrano told Mr. MacDonald that once they paid for the 2 then the supplier would give him 2 more.[^57]

[81] Detective Constable Salhia was qualified as an expert in drug trafficking and drug subculture relating to cocaine. It was his evidence that these texts reflect that Mr. Serrano was facilitating a drug transaction involving cocaine, for which the supplier was requesting $39,000 per kilogram. A kilogram of cocaine sells at between $40,000 and $45,000, it could be more or less depending on a number of factors including how closely connected the purchaser is to the supplier or whether the supplier is relatively high up the food chain and is very closely connected to the importer. The reference to 94 percent relates to the purity of the cocaine, which is significantly high. Mr. Serrano was attempting, from the texts, to negotiate a lower price than $39,000. It was Detective Constable Sahlia’s evidence that Mr. Serrano’s reference “His buddy has 10 pcs but he will only give me 2 at a time ok? i pay for 2 he give me 2 more get it?”[^58] was referring to 10 kilograms of cocaine and that his supplier would only sell the cocaine two kilograms at a time.

[82] In the PIN to PIN text messages on February 18, 2010, Mr. Serrano advised Mr. MacDonald that he was going to send Gus to deliver the cocaine to Mr. MacDonald after he received it from his supplier. Mr. Serrano sent Gus, who was identified by surveillance as Konstantinos Sountas, to 30 Grand Trunk to deliver the cocaine to Mr. MacDonald. Mr. Serrano PINed Mr. MacDonald prior to sending Gus, “Bro no less that 41 please ok. Where I send.”[^59] According to the evidence of Detective Wright and Detective Constable Salhia, Mr. Serrano was telling Mr. MacDonald not to sell each kilogram for less than $41,000, which meant they would make $2,000 profit on each kilogram, and for ten kilograms the minimum profit would be $20000 or $10000 each. Mr. Serrano texted Mr. MacDonald, after a number of references to his sending Gus,[^60] “Now he coming bro I had nobody today so I use him.” Mr. MacDonald responded, “Ok bro love you hurry move fast and we reload tomo earl ok?”

[83] Mr. MacDonald sent a further text to Mr. Serrano, “Ok wher the fuck is gus I bet he take his time or go see gril hahahahahah. He going to fuck it up hahahahah.” Surveillance officers observed Gus Sountas driving his parent’s older model Mercedes. Mr. MacDonald was observed on February 18, 2010, exiting 30 Grand Trunk and getting into a dark blue sedan that was later identified on March 9, 2010, as being Mr. Sountas’ parents’ Mercedes. The surveillance team did not observe any hand to hand transaction between Mr. Sountas and Mr. MacDonald; although it was assumed that the transaction occurred inside the vehicle. After exiting Mr. Sountas’ car, Mr. MacDonald entered Hoops, a sports bar that is on the main level of his condominium building. He remained there for about five minutes and then exited the bar and re-entered 30 Grand Trunk. There was no evidence led as to whether Mr. MacDonald was carrying anything after he exited the car or what he did inside Hoops.

[84] During the text messages[^61] between Mr. Serrano and Mr. MacDonald on February 18 and 19, 2010, Mr. Serrano asked “Can we move puffy purple cosh” and Mr. MacDonald responds, “$?”. Mr. Serrano texted him back, “2700 our price 40 pounds coming sat from bc need to know now sitting with my new connection.” Mr. MacDonald responded, “It need to b e top leavel purpl cush.” Mr. Serrano replied, “It is” and Mr. MacDonald texted “Ok try to get for us cheeper ok. And take it.” Detective Constable Sahlia was qualified as an expert in drug trafficking and drug subculture in cannabis marihuana and he testified that this text conversation referred to the purchase of forty pounds of “purple kush,” a very high level or specific strain of cannabis marihuana, which usually sells for $2700 per pound.

[85] Detective Wright testified that on the evening of March 9, Gus Sountas was observed by surveillance dropping off the 10 pounds of marihuana that was found in Mr. MacDonald’s condominium on March 10.[^62] Detective Wright did not provide any details as to who met with Mr. Sountas and received the marihuana; although he implied that Mr. Sountas met with Mr. MacDonald as he had done previously on February 18, 2010.

[86] On the days following the first delivery of cocaine by Gus Sountas, there were texts between Mr. Serrano and Mr. MacDonald where they talked about reloading and how they needed to move the cocaine more quickly. By way of example, Mr. Serrano texted “Lol what’s up bro you done yet lol I want a reload” and “what’s going on my friend calling me we to slow.” Mr. MacDonald responded to these texts, “most tonight,” and “ha, ha, ha, we halfway done.” At one point, Mr. Serrano texted Mr. MacDonald, “bro we too slow we need to finish this they keep calling me the only have 3 left bro holding for me please hurry.” MacDonald responded, “Okay.”[^63]

[87] Mr. MacDonald later advised Mr. Serrano that he was ready to reload and Mr. Serrano arranged to meet him in person at “heat” or “four seasons.”[^64] On February 21, 2010, Mr. Serrano advised Mr. MacDonald “If we give my buddy 15000 for Thursday Sunday we can get 1 for us all ours that’s all ours 27000 profit plus we can move his all 9 left.” Mr. MacDonald responded, “cool” and Mr. Serrano then texted, “Bro I will always have work now every week we need to be faster please. I sample of green,” to which Mr. MacDonald responded, “Good now. I go get biger custys.”[^65]

[88] There are numerous references throughout the texts in Exhibit 22 where Mr. Serrano and Mr. MacDonald referred to each other as “partners”, for example,

This is just the beginning of a long journey for me and you partner but I promise this “our there with us or against us” and if there against I feel sorry for them. Cheers to the best fuck the rest.[^66]

Am I your only partner? Good or bad money or no money heat or ice cool flowers or rocks? Cause you’re my best friend and I’m true to you I hope you the same with me love you partner. This is just the beginning of a long journey good luck to us.[^67]

Me and you bro CAPI DI TUTTI CAPI[^68]

[89] On February 22, 2010, there were a series of texts between Mr. MacDonald’s Blackberry, PIN 208D4F39 to 111111 my friend, PIN 241D1296. The individual whose nickname was “111111 my friend” was never identified by the police. Mr. MacDonald wanted to purchase “ice,” which is crystal methamphetamine.[^69] Detective Thai Truong was qualified as an expert in drug trafficking and drug subculture relating to crystal methamphetamine. It was his opinion that the conversation between Mr. MacDonald and 111111 my friend related to a drug transaction involving crystal methamphetamine, a kilogram quantity and a price. Mr. MacDonald texted 111111 my friend that he needed “ice to make his drink cold” and he had “$.” 111111 my friend texted Mr. MacDonald that he had “half on hand now, the No I can give you on 48.” Detective Truong testified that 111111 my friend was telling Mr. MacDonald he had half a kilogram on hand and he charges $48000 for a kilogram. It was Detective Truong’s opinion that someone dealing at the kilogram level was trafficking and that anyone possessing that quantity of crystal methamphetamine possessed it only for the purpose of trafficking.

[90] There is discussion in the texts that if 111111 my friend could only provide a half kilogram then Mr. MacDonald would contact another supplier as he had it sold. 111111 my friend told Mr. MacDonald to wait and he would try to find another half, which he does. 111111 my friend texted Mr. MacDonald that he now had a full one and arranged for his kid to meet Mr. MacDonald, the price was $48000 cod, which means cash on delivery.

[91] When the transaction was completed, 111111 my friend texted Mr. MacDonald that the money was short 4000 as he only had 44380. It was Detective Truong’s opinion that the only purpose that Mr. MacDonald would be purchasing that quantity of crystal methamphetamine was for the purpose of trafficking.

[92] At no time during any of the texts involving the sale and purchase of this one kilogram of crystal methamphetamine was Mr. Serrano’s name mentioned or was he involved in any of the texts. This would appear to be a transaction done completely by Mr. MacDonald alone with his supplier, 111111 my friend.

[93] The final sequence of text messages between Mr. Serrano and Mr. MacDonald, on February 23, 24 and 25, 2010 involved requests to “ree up” and that Mr. MacDonald needed “work”, which Detective Constable Sahlia testified referred to cocaine.[^70]

[94] On February 26, 2010, police entered Mr. MacDonald’s condominium at 30 Grand Trunk, Unit 1201, a second time, pursuant to the original general warrant, which allowed three entries. They waited until that day to execute the warrant as Ms. Mahdavi had been staying overnight in the condominium on February 23 and 24, 2010. This was observed by the surveillance team and was also determined from intercepted communications between Ms. Mahdavi and Mr. MacDonald. On February 25, 2010, Mr. MacDonald was seen returning to his condominium building driving his Cadillac, licence #BHPD 109. Ms. Mahdavi was with him and she exited the Cadillac and got into her vehicle, a Mercedes, licence #BFBD 582 and drove away. Mr. MacDonald entered 30 Grand Trunk and subsequently left before his curfew so he could return to his mother’s residence at 30 Edenton Avenue. Consequently, it was decided by the police to enter Mr. MacDonald’s condominium in the early hours of February 26, 2010, pursuant to the general warrant.

[95] During the search of Mr. MacDonald’s condominium, the police found 42 grams of cocaine in a single plastic baggie, which was located in a cupboard above the fridge in the kitchen of 30 Grand Trunk. A sample was seized pursuant to the warrant and it tested as cocaine. Further, $10,000, in cash, was found in ten bundles of $20 bills. Detective Wright testified that there was a light film of what was believed to be cocaine on the counter top. Photographs were taken of the 42 grams of cocaine and the money.[^71]

[96] As indicated in paragraph 7, supra, Mr. Mirosolin, on behalf of Mr. MacDonald, conceded committal on the majority of charges respecting Event #9, with the exception of any charges involving allegations relating to the substantive offences being committed for the benefit of a criminal organization, as well as a charge of trafficking in Methamphetamine (1 kilogram) on February 22, 2010. As indicated in paragraph 8, supra, Mr. Chartier, on behalf of Mr. Serrano, conceded committal on the majority of charges respecting Event #9, with the exception of any charges involving allegations relating to the substantive offences being committed for the benefit of a criminal organization.

(vii) Event #10

[97] On March 10, 2010, police executed search warrants at addresses throughout the GTA connected to Mr. MacDonald, Mr. Serrano and others. At 5 a.m., entry was gained forcibly into 30 Grand Trunk, Unit #1201. Inside the condominium unit were Shabnam Mahdavi-Damghani and Samantha Couture, a friend of Ms. Mahdavi.

[98] The condominium is a one-bedroom apartment, with a kitchen, living room, bedroom and a bathroom. Sergeant Mancuso was tasked with searching the bedroom and when he entered that room he observed the closet door was open. He also observed two Blackberries on the bed.[^72] A quantity of marihuana was seized from the bedroom closet. The marihuana was double bagged in two black garbage bags that were tied. Sergeant Mancuso had to open the black garbage bags before he became aware that there was marihuana inside. After opening the black garbage bags he found five long, narrow, sealed baggies of what he believed to be cannabis marihuana. He also seized a beige satchel from the top shelf of the closet. Mr. MacDonald had been observed by the surveillance team carrying this satchel on a number of occasions when he was entering and exiting 30 Grand Trunk. There was clothing inside the closet but Sergeant Mancuso did not make any notes as to whether it was men’s or women’s clothing. I was advised that no photographs were taken of the condominium during the execution of the search warrant.

[99] Sergeant Mancuso testified that there was no odour of marihuana emanating from the black garbage bag. He opened the black garbage bags and did not smell marihuana, which he testified is a smell he does not like. It was his evidence that if there had been a marihuana odour he would have noticed it. When he first observed the black garbage bag inside the closet he could not see the five vacuum sealed bags of marihuana.

[100] Detective Constable Awad testified that he found the gun in the cupboard above the fridge in the kitchen. He is 5’ 8” and he did not have to stand on anything to open the cupboard door. Detective Wright testified that the cupboard door was not tested for fingerprints by the police. The handgun was tested for fingerprints and Ms. Mahdavi-Damghani’s fingerprints were not found on it.

[101] On the kitchen counter, police discovered a small plastic baggie containing 3 grams of cocaine, which was seized.

[102] On December 20, 2009, Mr. MacDonald told Mr. Serrano, in an intercepted call,[^73] that “Shab”, which could be referring to Ms. Mahdavi-Damghani, was going to get into his car in one minute and he was taking her to his buddy Mike’s condo. Apparently, Mike had either given Mr. MacDonald this condominium or let him use it; although it was never disclosed in the evidence the reason why this had happened or what the actual arrangement between Mr. MacDonald and Mike was. Detective Wright testified that he believed Mike to be Mike Wassilyn. Detective Wright could not recall, during his evidence, the name of the person that the condominium was registered to but he knew that it was not registered in Mr. Wassilyn’s name. In cross-examination, he later found the name of the owner of the condominium, Pavlo Korsunsky, in the general warrant, although he did not know who this person was. The only other reference in the evidence to Mike Wassilyn was during Event #1, after the arrest of Mr. Mijuzi. On November 28, 2009, Mr. MacDonald spoke to a Mike about the arrest of Mr. Mujuzi and the other two young men.[^74] Detective Wright testified he believed the Mike in the call was Mike Wassilyn.

[103] Ms. Mahdavi-Damghani first came to the attention of police investigators in December 2009. On December 21, 2009, at 11:11 a.m., in an intercepted call,[^75] Mr. MacDonald called Ms. Mahdavi while he was at 30 Grand Trunk. There was discussion in this conversation from which one could infer that Ms. Mahdavi had stayed overnight at the condominium at 30 Grand Trunk and that Mr. MacDonald drove past her car, as she was leaving that morning and he was coming to the condominium.

[104] On December 27, 2009, there was an intercepted call[^76] between Mr. MacDonald and Ms. Mahdavi-Damghani during which Mr. MacDonald discussed a funeral they attended together where he had asked his friend to come and bring his girlfriend. The call was entered into evidence and the following excerpt sets out the conversation that followed:

M-D: Who was his girlfriend

MacDonald: Uh the same one I brought to Brenda’s house remember?

M-D: Mm no I don’t remember.

MacDonald: Yes you do cuz you got mad at me

M-D: I try

MacDonald: Think honey do you remember I brought uh I brought Brenda a present and you got really mad at me…

M-D: I don’t remember that.

MacDonald: Yeah right in front of you and you were like oh I was trying to show off.

M-D: What did you get for her

MacDonald: (laughs) I I I gave it to her right in front of you do you remember.

M-D: No what did you get for her.

MacDonald: (laughs) um fuck man (unintelligible)

M-D: Oh I remember

MacDonald: Okay so that you know that’s why I showed her my girlfriend so that’s what we always say our girlfriend you know.

M-D: Hmm

MacDonald: Okay so I told him to bring his girlfriend you know.

[105] It is the position of the Crown that when Mr. MacDonald talks about his “girlfriend” in the context of this call, he is referring to a gun. Mr. MacDonald told Ms. Mahdavi-Damghani that he asked his friend to come to the funeral and to bring his “girlfriend”, which was code for gun, because he wanted to ensure that nothing terrible happened to Ms. Mahdavi-Damghani. Apparently, the people attending the funeral were “killers” and this was why he put on a hard look on his face to those in attendance to show that he was not someone to be messed with. In order to get Ms. Mahdavi-Damghani to understand what he meant, without actually saying the word “gun”, he reminded her about an incident where he showed his gun to her when he was at Brenda’s house. Detective Wright testified that Brenda’s last name is Castille. No further evidence was provided as to who this person was or what her connection to Mr. MacDonald was. In her video statement to the police,[^77] which she provided after her arrest on March 10, 2010, Ms. Mahdavi-Damghani, in answer to questions by the interviewing officers, confirmed that Mr. MacDonald had shown her a gun at Brenda’s house, the first night she met him, which was about two and a half months earlier. She described the gun as being small and black. She told the police that Mr. MacDonald told her that he knew everything about guns, he shot really well and he could get them easily.

[106] On January 12, 2010, at 12:49 p.m., Ms. Mahdavi-Damghani called Mr. MacDonald, who was in the condominium, and asked what floor the condo was on and the number because she was downstairs with security, who would not let her in because she did not know the unit number she was going to. Mr. MacDonald told her the number was 1201. When Detective Wright was asked in cross-examination whether it would be reasonable for a person who rents or leases or owns a property to know the floor and unit number of the unit they have taken control of, he testifies that Ms. Mahdavi-Damghani was typically at the condo when Mr. MacDonald was there, they would arrive together and she would just follow him and he agreed that “she wasn’t involved in taking control of the unit.”

[107] Detective Wright also testified that whenever he arranged for someone, other than Ms. Mahdavi-Damghani, to attend the condominium building, he would always come down and meet them outside. He would always meet with people in Hoops or somewhere outside. No one, other than Ms. Mahdavi-Damghani, ever went up to Unit #1201.

[108] Later that same day, at 7:43 p.m., Ms. Mahdavi-Damghani had two conversations with Mr. MacDonald where she asked if he had any more “cookies and weed” for Fashid,[^78] who she was driving with in a car. Mr. MacDonald told her that he had some weed and would call her back in five or ten minutes. When he called back, Ms. Mahdavi-Damghani told him to speak to Steve because he knew the “weeds” that are good, she did not want the other ones that put her down and made her really sad. Mr. MacDonald agreed to get her some and Ms. Mahdavi-Damghani was to pick up some Persian food. Ms. Mahdavi-Damghani does not appear to be concerned about speaking in code when discussing with Mr. MacDonald illegal substances such as “weed”.

[109] In a further intercepted call[^79] on March 4, 2010, Mr. MacDonald asked Ms. Mahdavi-Damghani where she wanted to meet and she told him she wanted to go home. Mr. MacDonald responded, “Okay so let’s go home I’m in my car now hon.” Ms. Mahdavi-Damghani said, “I wanna to go to my home,” but then said, “Okay we’ll go to our house first if you want.” Detective Wright testified that Ms. Mahdavi-Damghani’s principal residence was at 20 Godstone Avenue in North York where she lived with her mother, but she also spent time at the condo at 30 Grand Trunk.

[110] The last intercepted call[^80] between Mr. MacDonald and Ms. Mahdavi-Damghani, introduced by the Crown, was on March 10, 2010, at 1:07 a.m. Ms. Mahdavi-Damghani called Mr. MacDonald to ask him if it was okay for her friend Samantha’s mother to come to the condo to stay overnight as Samantha’s mom’s best friend had just died, she was upset and did not want to be alone. Ms. Mahdavi-Damghani told Mr. MacDonald if that was not okay to just tell her. Mr. MacDonald told her that it was her house too but did she really want someone coming over to see what she and Samantha were doing. Ms. Mahdavi-Damghani then said, “No no we’re gonna hide it.” Mr. MacDonald told her again it was her apartment too and the only reason he had the place was for her, so it did not matter to him if Samantha’s mom came over.

[111] Samantha took the phone and told Mr. MacDonald that the guy her mom lived with had died a few hours ago and her mom was really “fucked up”. Samantha wanted her mom to come to the condo so they could be together and they would leave with Ms. Mahdavi-Damghani in the morning. Ms. Mahdavi-Damghani came back on the phone and thanked Mr. MacDonald and said that she was “gonna hide it now” as she did not want to do it in the morning as she had to go to work. She asked Mr. MacDonald for the address of the building so that Samantha’s mom would be able to take a cab there. Mr. MacDonald inquired as to whether having someone come over was going to ruin her high and Ms. Mahdavi-Damghani assured him that she was fine, she was just worried about Samantha’s mom.

[112] Mr. MacDonald then asked where everyone was going to sleep and Ms. Mahdavi-Damghani said she would sleep on the couch. Mr. MacDonald then told Ms. Mahdavi-Damghani that she had to listen to him. The following was the conversation that followed:

MacDonald: You gotta you gotta go in and you know the closet in our bed room

M-D: Mm hmmm

MacDonald: You gotta go in and shut the door okay

M-D: Okay

MacDonald: Okay like you can phone me all night man uh

M-D: Why

MacDonald: Five hours till I come there no it’s up to you like I told you you’re not alone you know

M-D: Why you say I shut the closet

MacDonald: Huh

M-D: Why do I have to shut the closet

MacDonald: Cuz I uh left some of my clothes in there you know

[113] The vehicle driven by Ms. Mahdavi-Damghani was registered, according to Detective Wright, to her sister or mother with an address in Barrie. The only times that Ms. Mahdavi-Damghani was observed by surveillance was when she happened to come into the area where the surveillance team was already operating or if she was in the company of Mr. MacDonald. Detective Wright testified that Ms. Mahdavi-Damghani was never observed by surveillance going to the condo alone; she was always in the company of Mr. MacDonald. She was not a target of the police investigation. Her vehicle was never parked in the underground parking for the condominium, it was always observed by surveillance, when she stayed overnight, to be parked in a paid, above-ground lot, which was beside the building.

[114] As far as Detective Wright was aware, Ms. Mahdavi-Damghani did not have a key in her possession, either on her person or in her purse, for Unit 1201, 30 Grand Trunk when she was arrested on March 10, 2010. Detective Wright agreed in cross-examination that Mr. MacDonald is described as the owner or occupier of Unit 1201, 30 Grand Trunk, in the affidavit supporting the search warrant application for March 10, 2010. The affidavit also refers to the owner on title as being Pavlo Korsunsky and that Mike Wassilyn had some control over the condominium. Ms. Mahdavi-Damghani’s name is not mentioned as having control of the condo although she was described as someone who “spends a significant amount of time with MacDonald particularly at the condominium apartment used by MacDonald at 30 Grand Trunk Crescent, Apartment 1201.”

[115] Detective Wright was asked about the dates that Ms. Mahdavi-Damghani was observed by surveillance going into the condominium building or occasions where surveillance observed her vehicle in the outdoor public parking lot and he gave evidence that the police believed she was in the condominium on the evenings of February 23 and 24, 2010. This was why the police did not execute the general warrant on those evenings. They entered the unit during the early morning hours of February 26, 2010, because she was observed leaving in her car during the evening of February 25, 2010. No other dates were provided in the evidence of Ms. Mahdavi-Damghani staying overnight in the condominium, other than the evening of December 20, 2009, when Mr, MacDonald was first given the condominium by Mike Wassilyn. An intercepted call, described above, leads to an inference that Ms. Mahdavi-Damghani spent the night in the condo after Mr. MacDonald had to return to his mother’s residence because of his parole.

[116] Ms. Samantha Couture was only charged with possession of the three grams of cocaine found on the kitchen counter in the baggie.

[117] As indicated above, Ms. Mahdavi-Damghani was arrested on March 10, 2010, after police officers executed a search warrant at 30 Grand Trunk, Unit 1201. She provided a video statement[^81] to police after her arrest, which was introduced by the Crown, to be used only with respect to Ms. Mahdavi-Damghani. In her statement, Ms. Mahdavi-Damghani disclosed the following:

(a) She understood that the condo originated from Mike, Mr. MacDonald’s friend and that Mr. MacDonald used it. She believed Mike lived two floors down and that he had other places in the city and the country. He had places all over. (pp. 7-8) (b) She did not know anything about the gun, the marihuana or cocaine that was found in the condo. When she was taken by the police out of the condo they advised her of the things that were found. She had never seen any items like that in the condo. (pp. 8-9) (c) She would stay over at the condo two or three nights a week. This was because Mr. MacDonald wanted her to stay because he wanted to see her in the morning when he returned. (p. 10-11) (d) Mr. MacDonald told her that he loved her. She did not love him. She was scared of him. Mr. MacDonald wanted to have a relationship with her. She never had sex with him. (pp. 11-13) (e) She never saw a 40 calibre gun, a black gun. She had no idea of anything about guns in the condo. She did not look for anything when she stayed in the condo. She was scared. She was afraid for her family, he could send someone to kill her or do anything to her family, it would be really easy for him. (pp. 15-17) (f) She had never seen a black gun in the condo. He talked to her about guns. He said that he would show her his gun and that they were easy to for him to find. She believed he had a gun. She said she never saw his gun. (pp. 21-22) (g) She admitted to using cocaine. It was not a habit. She used drugs because she was under so much pressure. She did not have to ask Mr. MacDonald for drugs as he had them. (pp. 23-25) (h) She told police that if they were listening to her conversations on the phone and were following her then they knew for a fact that she was not involved in anything connected to drugs. She was only going to the condo and she was only involved with Mr. MacDonald. They knew she was not involved with Mr. MacDonald’s friends and Mr. MacDonald never asked her to deliver a package or anything. (pp. 33-34) (i) Mr. MacDonald promised her that he would not leave anything in the house that would cause any problems. He told her straight up that he was a criminal. He told her that he had been in jail and that he was not scared of anything. (p. 36 and pp. 49-50) (j) When she went to the condo on March 10, Mr. MacDonald was already there. He opened the door. She had picked up her friend Samantha and brought her to the condo. She never had a key to the condo, only Mr. MacDonald had a key. Mr. MacDonald told her that he had the only key and nobody else went to the condo. When she was staying at the condo the door would already be open or he would be there. When she left in the morning she did not lock the door, she left the door unlocked. Mr. MacDonald would be returning to the condo while she was at work and he would lock the door. (pp. 39-44) (k) She knew that Mr. MacDonald was a friend of Francesco. They were both gangsters. They spoke all the time but if she was around, Francesco would not talk. They would never talk in front of her and she would not ask. (pp. 45- 46) (l) She did not think Mr. MacDonald would change and she did not think that anything would change her mind toward him. She did not want to get involved. (p. 53) (m) She knew who Gus was. He worked with Mr. MacDonald. They worked together as gangsters, doing crimes together. (p. 54) (n) She asked the officers how she could be charged with possession. When the officer told her it was because she was there and had control of these things, she told them, in effect, that she did not have control, she did not know they were there in the condo. She told the police that she did not have a key, Mr. MacDonald had the only key. The officers put to her that Mr. MacDonald could say that everything in the condo was hers. She said that the officers doing the investigation knew who brought the stuff there and obviously there would be fingerprints, implying that they would not find hers. (pp. 59-62) (o) She was asked by the officers if her fingerprints would show up on any of the packages or on the gun and she said never would her fingerprints show up, she never touched his gun. (pp. 83-85) (p) She admitted again that she uses cocaine. Mr. MacDonald never used cocaine or any drug. (pp. 92-95) (q) She was asked again if she ever saw a gun in Mr. MacDonald’s possession and she told the police she never saw one at the condo but, on the first night they met, at Brenda’s house, he brought his gun and threatened her. She described the gun as being a small black one. He held the gun to her head. She did not know if it was loaded or not. Mr. MacDonald told her he knew everything about guns, he was a good shot and he could get them easily. (pp. 102-106, 109) (r) She said she never had any sort of sexual relationship with Mr. MacDonald. Apparently, he got shot and has only one testicle and he cannot do anything as a result. He takes the little blue pill but it does not work for him. (pp. 113-114) (s) She was asked again if she knew that the gun was in the condo and she told the officers she did not know. (p. 115) (t) She said that the night before she had used cocaine at the condo. She did not know how much was still there. She was unaware that the marihuana was in the condo. (pp. 118-121) (u) The officers asked if she knew where the gun was that Mr. MacDonald had showed her at Brenda’s and she asked, “You didn’t find it?” The officers told her they found a gun in the condo but they did not know which gun was in the condo. She told them she did not know about a gun being hidden in the condo and that Mr. MacDonald promised her that he would not put anything in the condo that would put her in circumstances. (pp. 126-127) (v) The night at Brenda’s, Mr. MacDonald wanted her to hold the gun but she refused. (pp. 150-151) (w) She described how a black guy came into the store where she worked several months previously and he pulled a gun and held it to her head. The police were called and they found the guy and he was charged. (pp. 152-156) (x) Mr. MacDonald did not have the keys to her car. He would sometimes take her keys and fill her car with gas. As far as she was aware, there was nothing in her car that belonged to Mr. MacDonald. (pp. 171-174) (y) She did not use cocaine every day. When she used cocaine it would only be a small square, half inch by a half inch. She got the cocaine from Mr. MacDonald the previous night. (pp. 175-179)

[118] Detective Hackenbrook, one of the officers who interviewed Ms. Mahdavi-Damghani, testified that the amount of cocaine referred to by Ms. Mahdavi-Damghani that she usually used was a small packet, a half inch by a half inch, which cost $40. Detective Hackenbrook and his partner repeatedly told Ms. Mahdavi-Damghani that they believed the truth of what she was saying and that they sincerely appreciated her honesty. Ms. Mahdavi-Damghani was not held for a bail hearing; rather, she was released from the police station. According to Detective Hackenbrook she did not have a criminal record for violence, there was no history of her being related to firearms, she did not appear to be a flight risk and she had provided a statement, which the officer believed she would be testifying to against Mr. MacDonald in court.

[119] Detective Wright testified that he did not believe the handgun found in the cupboard above the fridge belonged to Ms. Mahdavi-Damghani. It was his belief that it belonged to Mr. MacDonald.

[120] As indicated in paragraph 7, supra, Mr. Mirosolin conceded committal on behalf of Mr. MacDonald on the charges arising out of Event #10. As indicated in paragraph 12, supra, Mr. Pearce on behalf of Ms. Mahdavi-Damghani conceded committal on the possession of cocaine charge but is contesting committal on all other charges.

(viii) Event #11

[121] On February 26, 2010, there was an intercepted telephone call between Mr. Tompkins and Billy Padgett, who was Mr. Tompkins’ brother-in-law and the individual who supplied firearms to Mr. Tompkins from the United States. Mr. Padgett had been arrested by the Alcohol, Tobacco & Firearms Bureau (hereinafter referred to as ATF) in the U.S. and he had agreed to cooperate with the police in respect of a number of firearms that the ATF had seized from Mr. Tompkins.[^82] During this call Mr. Padgett advised Mr. Tompkins that he had just received all of his “stuff” back, which he said was sitting in his collections box and he needed to sell because he had lawyer’s fees to pay. He told Mr. Tompkins that he had snub noses, 40s and 45s. Mr. Tompkins asked him if he had automatics to which Mr. Padgett said “Yes, he’s got those.” Mr. Padgett told Mr. Tompkins that he knew that Tomkins could not come to the U.S., so Padgett would come to him. Mr. Padgett said he was going to cut Mr. Tompkins “one fuck of a good deal, 800 each.” He had ten. Mr. Tompkins replied, “Done, 100%.” Padgett asked Tompkins to have the money ready and Tompkins told him, “yep, no problem.” The Crown did not provide the exact time of this call. It was a call placed by Mr. Padgett to Mr. Tompkins.

[122] Also on February 26, 2010, at 5:29 p.m., Detective Wright identified an intercepted call[^83] between Mr. Barker and Mr. MacDonald. Mr. Barker’s and Mr. MacDonald’s voices are identified by Detective Wright. He is very sure of his identification of both parties to this call. Mr. Barker was using a phone registered to Mr. Tompkins, (519) 563-9712.

[123] Prior to February 26, 2010, Mr. MacDonald had spoken with Mr. Barker on two dates, January 26, 2010 and February 2, 2010. Mr. MacDonald asked Mr. Barker on January 26 how many tickets to have reserved for him on the next day. Mr. Barker advised “Probably the same.” Mr. MacDonald told Mr. Barker he got a dynamite deal so he could pass on the savings to the customer. He then asked Mr. Barker if he was able to see his “cousin” and Mr. Barker said no. Then Mr. MacDonald told him that he had to see his cousin because he was being a “dick” right then. Mr. MacDonald asked when he would see Mr. Barker the next day and Mr. Barker advised the same time. On February 2, 2010, Mr. MacDonald called Mr. Barker again and asked if he was on his way down and was he going to spend the night? Mr. Barker answered he was on his way and he said he was not going to stay over. Mr. MacDonald asked him again if he was going to spend the night, to which Mr. Barker said, “No…Just, no more on this, all right?” The Crown did not call any expert evidence to explain what was meant in these calls, nor did Detective Wright provide any evidence as to what he believed Mr. MacDonald and Mr. Barker were talking about. Detective Wright testified that Mr. Tompkins was not Mr. Barker’s “cousin”, in answer to a question by the Crown. There is no blood relationship between Mr. Barker and Mr. Tompkins.

[124] On January 22, 2010, two days after Event #6,[^84] Mr. Barker called[^85] “Rambo” inquiring about “what’s going on.” Rambo replied that he was “just waitin’ for that stuff and then – ‘cause they’re gonna put it all together with a – with a – a – a 12.” He continued, “Twelve hun (ph) so, and – and – and they said it never came so they – they made another one. They had to investigate it and trace it. But, the – but, they were makin’ another one out of it. So, they’re sendin’ me the two one. All (ph) that shit…is comin’ like, fuck by Tuesday.” This portion of the conversation was never explained by an expert or by Detective Wright.

[125] The only part of this conversation that Detective Wright was asked to comment on had to do with Rambo asking Mr. Barker if he had any “chronic,” which Detective Wright and the expert, Detective Constable Sahlia, both testified referred to marihuana. Mr. Barker said he had some that was good but it was expensive. At that point Rambo advised Mr. Barker that he was calling to tell Mr. Barker to stay away right now because “big man” or “big guy” “is on fire.” Detective Wright testified that he believed “big man” referred to Mr. MacDonald. Rambo told Mr. Barker that Data, referring to Static according to Detective Wright, went to see “big man” and “grabbed three bounces of chronic. It was by 176 by a Laundromat. Eleven undies just ray – rushed him. They took the chronic and let him go. Right after he got out of my homies’ car.” Rambo told Mr. Barker that “he’s callin’ me too” and he was not “tryin’ to get involved with that.” It was Detective Wright’s evidence that Rambo was warning Mr. Barker to be careful around Mr. MacDonald because the police were listening to his phones or were following him.

[126] Detective Wright testified that Mr. MacDonald was calling Mr. Barker’s phone on numerous occasions and Mr. Barker was not picking up in the days leading up to February 26. Mr. MacDonald sent 47 text messages, according to Detective Wright, to Mr. Barker asking him to call. On days when Mr. Barker was being followed[^86] by police in January and February 2010, he was never observed to be in the company of Jason Tompkins. It was Detective Wright’s position that at some point they were together because Mr. Barker, on February 26, 2010, was calling Mr. MacDonald on Jason Tompkins’ cell phone. Mr. Barker was not under surveillance every single day, 24 hours a day.

[127] In the call between Mr. MacDonald and Mr. Barker on February 26, 2010, at 5:29 p.m., they had the following conversation:

MacDonald: Holy fuck where ya been.

Barker: Uh you know listen

MacDonald: No bad news

Barker: No no no it’s it’s good news good news

MacDonald: Oh okay

Barker: Good news

MacDonald: What’s up

Barker: Can next week um nine okay

MacDonald: Yep

Barker: A (unintelligible)

MacDonald: Phone’s crazy I was wondering if

Barker: Yeah I know I know

(simultaneously talking)

MacDonald: You’re gonna come down this week

Barker: Um I dunno

MacDonald: Okay

Barker: Next week for sure though

MacDonald: Okay

Barker: All right

MacDonald: Yeah, no problem (unintelligible)

Barker: And uh yeah

MacDonald: How’s your cousin doing

Barker: The well that’s I talked to him

MacDonald: Yeah I know

Barker: Okay

MacDonald: I know yeah uh how’s uh how’s uh how’s the other guy is he uh is he inside or huh what’s going on

Barker: No no he he he’s out

MacDonald: Yeah did the boys end up talking to him the ones that talked to you

Barker: Um no but I got (unintelligible) story about that talked to you

MacDonald: You got the what

Barker: When I see ya I got a good story about that when I see ya

MacDonald: Okay okay well I hope to see ya soon brother love ya

Barker: (unintelligible) all right

MacDonald: Eh um my cousins have been down here waiting too eh bro

Barker: Yeah

MacDonald: Yeah man that’s why I’ve been phoning ya all week it’s fuckin they look big and buff I’m telling you

Barker Okay cool so next week I’ll see ya

MacDonald: Uh when’s next week to you Monday Tuesday Wednesday

Barker: Um like Tuesday Wednesday Thursday

MacDonald: Okay love you bro ciao

Barker: Ciao

[128] The Crown did not lead any evidence as to when the call was made by Mr. Padgett to Mr. Tompkins, other than it was made on the same day, February 26, 2010, which was the date that Mr. Barker called Mr. MacDonald when he said he had “good news” and asked if “nine is okay.” Detective Wright identified Mr. Barker as the other participant in this intercepted call. Further, Mr. Barker was speaking to Mr. MacDonald while he was using a cell phone normally used by Jason Tompkins.

[129] Exhibit 25, which is the CD of intercepted calls between Mr. Padgett and Mr. Tompkins respecting Event #11, and Exhibit I, which contains the transcripts of those calls (at Tabs 2-13), were filed by the Crown. The intercepted calls were not played in court. During those calls Mr. Tompkins advised Mr. Padgett that he believed he was being followed by the police and he therefore had a bad feeling about what was going on. Mr. Padgett, who was cooperating with the ATF, continued to pressure Mr. Tompkins to carry through with their agreement from February 26, 2010. Finally, on March 9, 2010, Mr. Tompkins agreed to have “Dave” meet Mr. Padgett’s guy, “Paul” on the Canadian side. David Faubert is related to Mr. Tompkins, who is apparently his half-brother. Mr. Faubert is also married to Katherine Misangyi.

[130] Detective Sergeant Liptrott is a member of the Ontario Provincial Police Organized Crime Enforcement Bureau, Provincial Weapons Enforcement Unit. On March 9, 2010, he became involved in Project Folkstone in an undercover capacity. He was formally briefed as to his role at 3:45 p.m. His role was to pose as a courier for Mr. Tompkins’ gun supplier and to conduct the transaction of firearms. He was provided with a red Ford F350 pickup truck, which had a Kentucky licence plate. He was to meet with Jason Tompkins or David Faubert as the courier delivering a bag of illegal firearms and ammunition. He was provided with two gym bags. One of the bags contained 12 handguns and clothing and the other bag contained an assortment of ammunition. He arrived at 5:15 p.m., at the Holiday Inn Express parking lot located at 1855 Huron Church Road in Windsor.

[131] Detective Sergeant Liptrott backed his pickup truck into a parking spot at the south end of the parking lot, facing north and waited. He received a call from his handler to advise that the cooperating witness, Mr. Padgett, had advised that David would be meeting with him in the parking lot. At 5:49 p.m. he observed a red Chevy Cavalier, with a brown coloured convertible top, travel through the parking lot and drive to his location. He observed two occupants inside this car, a white male driving and a white female in the front passenger seat. This car parked beside his truck one spot to the west facing south. The Cavalier’s driver’s door was beside the Ford’s driver’s door.

[132] The male driver looked up at Detective Sergeant Liptrott and smiled. Both drivers’ windows were rolled down. The driver asked if the officer was Billy’s buddy and Detective Sergeant Liptrott said he was. The driver said he was Jason’s brother and asked if the officer was going to follow him. Detective Sergeant Liptrott said he thought that Jason was coming and the driver advised that Jason had the “stack”, which the officer took to mean “money.” The driver made some comment about “Couldn’t be that” or something similar, which the officer took to mean that the money and guns could not be in the same location. The driver asked if the officer knew what he was talking about. The driver’s phone rang and he said to the officer that it was Jason.

[133] Detective Sergeant Liptrott overheard the driver say to Jason that he, referring to Jason, had to come to the Holiday Inn and bring the money as he, referring to himself, was going to take the “things.” The officer understood that the reference to the “things” referred to the firearms and ammunition. The female passenger did not leave the vehicle. The officer did not have any conversation with her. The officer heard the driver tell Tompkins that Billy was not there. After the driver finished the call with Tompkins, he said to the officer that he was going to take the “things” and Jason Tompkins would be bringing the cash. The officer agreed and they both exited their vehicles. The officer shook the driver’s hand at the front of the truck and introduced himself as Paul and the driver confirmed he was Dave, Jason’s brother.

[134] They both walked to the rear passenger door of the pickup truck and the officer opened the door and unzipped the red gym bag that had firearms and clothing and said, “Here’s the guns, okay?” The officer then unzipped the blue bag and showed Dave the ammo. Both bags were zipped back up and Dave took them both around the front of the truck and went to the trunk of the Cavalier. He told the officer that Jason was on his way and would be there in 10 minutes with the money. Detective Sergeant Liptrott could not recall if Dave used the key to open the trunk or fobbed it open. He did not walk back to the trunk of the car with Dave; he remained at the front of his truck.

[135] After the arrest, Detective Sergeant Liptrott learned that the woman in the front passenger seat of the red Chevy Cavalier was Katherine Misangyi. Both Ms. Misangyi and her husband, David Faubert, were charged with various firearms offences.

[136] As indicated in paragraph 6, supra, Mr. Maini, on behalf of Mr. Tompkins, conceded committal on all charges facing Mr. Tompkins in respect of Event #11. All of the other defendants, Mr. MacDonald, Mr. Barker and Ms. Misangyi, are contesting committal on the charges in respect of Event #11.

4. Counts on which Defence are Contesting Committal

[137] Mr. MacDonald is contesting committal in respect of the following counts:

Provincial Information

Count 5: Transfer 12 Firearms (March 9, 2010: Note this count was amended from March 8, 2010 to March 9, 2010 at request of Crown), contrary to section 99(2) of the Criminal Code;

Count 8: Trafficking in Firearms for the Benefit of a Criminal Organization (November 25-26, 2009), contrary to section 467.12(1) of the Criminal Code; and (Note: Mr. MacDonald was not originally charged with this count, at the conclusion of the preliminary hearing the Crown sought to add Mr. MacDonald to this count.)

Count 25: Trafficking in Cocaine (with Francesco Serrano) for the Benefit of a Criminal Organization (February 18-26, 2010), contrary to section 467.12(1) of the Criminal Code.

Additional Charges Sought by Crown

Instructing in the Trafficking of Marihuana for the Benefit of a Criminal Organization (Dec 17-18, 2009), contrary to section 467.13 of the Criminal Code;

Instructing in the Conspiracy to Trafficking of Marihuana for the Benefit of a Criminal Organization (Dec 17-18, 2009), contrary to section 467.12 of the Criminal Code;

Conspiracy to Traffic in Marihuana (with Serrano) (40 pounds) for the Benefit of a Criminal Organization (Feb 18-19, 2010), contrary to section 467.12 of the Criminal Code;

Trafficking in Methamphetamine (1 kilogram), (February 22, 2010), contrary to section 5(1) of the CDSA;

Trafficking in Cocaine (with Serrano) (10 kilograms) for the Benefit of a Criminal Organization (February 17-26, 2010), contrary to section 467.12 of the Criminal Code;

Conspiracy to Traffic in Firearms (with Barker) (February 26, 2010), contrary to section 465(1)(c) of the Criminal Code;

Conspiracy to Traffic in Firearms (with Barker) for the Benefit of a Criminal Organization (February 26, 2010), contrary to section 467.12 of the Criminal Code; and

Trafficking in Firearms for Benefit of a Criminal Organization (February 26-March 9, 2010), contrary to section 467.12 of the Criminal Code.

[138] Mr. Serrano is contesting committal in respect of the following counts:

Provincial Information

Count 25: Trafficking in Cocaine (with MacDonald) for the Benefit of a Criminal Organization (February 18-26, 2010), contrary to section 467.12(1) of the Criminal Code; and

Count 26: Trafficking in Heroin for Benefit of a Criminal Organization (November 17, 2009 to March 10, 2010), contrary to section 467.12(1) of the Criminal Code.

Additional Charges Sought by Crown

Conspiracy to Traffic in Marihuana (with MacDonald) (40 pounds) for the Benefit of a Criminal Organization (Feb 18-19, 2010), contrary to section 467.12 of the Criminal Code; and

Traffic in Cocaine (with MacDonald) (10 kilograms) for the Benefit of a Criminal Organization (February 17-26, 2010), contrary to section 467.12 of the Criminal Code.

[139] Mr. Barker is contesting committal in respect of the following counts:

Provincial Information

Count 4: Import firearms (12), (with Tompkins and Misangyi), (March 9, 2010), contrary to section 103(2) of the Criminal Code;

Count 5: Transfer 12 firearms, (with MacDonald, Tompkins and Misangyi), (March 9, 2010: Note amended from March 8, 2010 at request of Crown), contrary to section 99(2) of the Criminal Code;

Count 7: Possess firearms (with Tompkins, Misangyi, Currie and MacDonald), (November 25-26, 2009), contrary to section 100(2) of the Criminal Code;

Count 8: Trafficking (with Tompkins, Misangyi, Currie and MacDonald), in Firearms for Benefit of a Criminal Organization, (November 25-26, 2009), contrary to section 467.12(1) of the Criminal Code;

Counts 9-16: Possession of specific firearms, (with Tompkins, Barker, Currie and MacDonald), (November 25-26, 2009);

Count 17: Possession of firearms with readily accessible ammunition, (with Tompkins, Misangyi, Currie and MacDonald), (November 25-26, 2009), contrary to section 95(1) of the Criminal Code;

Count 18: Possession of two (2) restricted firearms, (with Tompkins, Misangyi, Currie and MacDonald), (Nov 25-26, 2009), contrary to section 95(2) of the Criminal Code; and

Count 20: Transfer firearms (with Tompkins, Misangyi, Currie and MacDonald), (Nov 25-26, 2009), contrary to section 99(2) of the Criminal Code;

Additional Charges Sought by Crown

Trafficking in Firearms for Benefit of a Criminal Organization (February 26-March 9, 2010), contrary to section 467.12 of the Criminal Code;

Conspiracy to Traffic in Firearms (with MacDonald) on February 26/10, contrary to section 465(1)(c) of the Criminal Code; and

Conspiracy to Traffic in Firearms (with MacDonald) for the Benefit of a Criminal Organization (February 26/10), contrary to section 467.12 of the Criminal Code.

[140] Mr. Currie is contesting committal in respect of the following counts:

Provincial Information

Count 6: As indicated in paragraph 7, supra, this count should be amended to be two separate conspiracies:

(a) The first conspiracy alleges that between December 16, 2009 and December 17, 2009, John Robert Currie (with Phillip MacDonald and Tsz Kei Kung) did conspire together to commit the indictable offence of trafficking in a schedule II substance, namely cannabis (marihuana), contrary to section 465(1)(c) of the Criminal Code; and

(b) The second conspiracy alleges that between December 17, 2009 and December 19, 2009, John Robert Currie (with Phillip MacDonald and David Ronald Barker) did conspire together to commit the indictable offence of trafficking in a schedule II substance, namely cannabis (marihuana), contrary to section 465(1)(c) of the Criminal Code.

Count 7: Possess firearms (with Tompkins, Misangyi, Barker and MacDonald), (November 25-26, 2009), contrary to section 100(2) of the Criminal Code;

Count 8: Trafficking (with Tompkins, Misangyi, Barker and MacDonald), in Firearms for Benefit of a Criminal Organization, (November 25-26, 2009), contrary to section 467.12(1) of the Criminal Code;

Counts 9-16: Possession of specific firearms, (with Tompkins, Barker, Misangyi and MacDonald), (November 25-26, 2009);

Count 17: Possession of firearms with readily accessible ammunition, (with Tompkins, Misangyi, Barker and MacDonald), (November 25-26, 2009), contrary to section 467.12(1) of the Criminal Code;

Count 18: Possession of two (2) restricted firearms, (with Tompkins, Misangyi, Barker and MacDonald), (Nov 25-26, 2009), contrary to section 95(2) of the Criminal Code; and

Count 20: Transfer firearms (with Tompkins, Misangyi, Barker and MacDonald), (Nov 25-26, 2009), contrary to section 99(2) of the Criminal Code.

Federal Information

Count 1: Possession of Marihuana, (with MacDonald), (January 13, 2010), contrary to section 4(1) of the CDSA; and

Count 2: Possession for the purpose of trafficking in marihuana, (with MacDonald), (January 13, 2010), contrary to section 5(2) of the CDSA.

Additional Charges Sought by Crown

Trafficking of Marihuana for the Benefit of a Criminal Organization, (December 17-18, 2009), contrary to section 467.12 of the Criminal Code; and

Conspiracy to Traffic Marihuana for the Benefit of a Criminal Organization (December 17-18, 2009), contrary to section 467.12 of the Criminal Code.

[141] Ms. Misangyi is contesting committal in respect of the following counts:

Provincial Information

Count 4: Import firearms (12), (with Tompkins and Barker), (March 9, 2010), contrary to section 103(2) of the Criminal Code;

Count 5: Transfer 12 firearms, (with MacDonald, Tompkins and Barker), (March 9, 2010: Note amended from March 8, 2010 at request of Crown), contrary to section 99(2) of the Criminal Code;

Count 7: Possess firearms (with Tompkins, Barker, Currie and MacDonald), (November 25-26, 2009), contrary to section 100(2) of the Criminal Code;

Count 8: Trafficking (with Tompkins, Barker, Currie and MacDonald), in Firearms for Benefit of a Criminal Organization, (November 25-26, 2009), contrary to section 467.12(1) of the Criminal Code;

Counts 9-16: Possession of specific firearms, (with Tompkins, Barker, Currie and MacDonald), (November 25-26, 2009);

Count 17: Possession of firearms with readily accessible ammunition, (with Tompkins, Barker, Currie and MacDonald), (November 25-26, 2009), contrary to section 467.12(1) of the Criminal Code;

Count 18: Possession of two (2) restricted firearms, (with Tompkins, Barker, Currie and MacDonald), (Nov 25-26, 2009), contrary to section 95(2) of the Criminal Code;

Count 20: Transfer firearms (with Tompkins, Barker, Currie and MacDonald), (Nov 25-26, 2009), contrary to section 99(2) of the Criminal Code; and

Count 31: Possession of firearms for the Purpose of Trafficking, (March 9, 2010), contrary to section 100(2) of the Criminal Code.

Additional Charges Sought by Crown

Trafficking in Firearms for Benefit of a Criminal Organization (February 26-March 9, 2010), contrary to section 467.12 of the Criminal Code.

[142] Ms. Mahdavi-Damghani is contesting committal in respect of the following counts:

Provincial Information

Count 34: Possession of Firearm, (with MacDonald) (March 10, 2010), contrary to section 91(3) of the Criminal Code; and

Count 35: Possession of Firearm, (with MacDonald) (March 10, 2010), contrary to section 95(2) of the Criminal Code.

Federal Information

Count 21: Possession of Marihuana, (with MacDonald) (March 10, 2010), contrary to section 4(1) of the CDSA; and

Count 22: Possession for the Purpose of Trafficking in Marihuana, (with MacDonald) (March 10, 2010), contrary to s. 5(2) of the CDSA.

[143] The Crown is not seeking committal on any additional charges relating to Ms. Mahdavi-Damghani.

5. The Test for Committal

[144] The combined effect of s. 548(1) of the Criminal Code and United States of America v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R. 1067 require a committal where there is any evidence upon which a reasonable jury, properly instructed, could convict. It is not a question of whether a properly instructed jury, acting reasonably, would infer guilt from the evidence adduced at a preliminary inquiry, only whether they could do so.

[145] Campbell J. described the task set by Shephard in R. v. McIlwain (1988), 1988 9870 (ON SC), 67 C.R. (3d) 393 (Ont.H.C.J.) at 399 as "to weigh or balance in the scales or to measure or to ponder and examine the force of evidence to determine whether or not it is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty." This is the sole purpose for which the evidence is to be weighed or scrutinized at the preliminary inquiry.

[146] It is not my function to weigh competing inferences or to choose one over another: R. v. Campbell (1999), 1999 2372 (ON CA), 140 C.C.C. (3d) 164 (Ont. C.A.) at 165 (see also R. v. Martin, 2001 4971 (ON CA), [2001] O.J. No. 4158 (Ont. C.A.); R. v. Tuske, [1978] O.J. No. 1253 (Ont. C.A.); R. v. Manickavasagar, [2004] O.J. No. 600 (Ont. C.A.). Indeed, any doubt as to the inferences to be drawn from the evidence must be resolved, at the preliminary inquiry stage, in the Crown's favour: R. v. Sazant, 2004 SCC 77, [2004] S.C.J. No. 74 (S.C.C.); R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601; R. v. Magno, 2006 21758 (ON CA), [2006] O.J. No. 2590 (Ont. C.A.) at para. 15; R. v. Foster, [2008] O.J. No. 827 (Ont. Sup. Ct. J.); R. v. Coke, [1996] O.J. No. 808 (Sup. Ct. J.).

[147] Consequently, the weighing of the evidence for competing inferences, frailties or contradictions has no place in the Shephard test. Neither can a preliminary hearing judge assess the dubious nature of the Crown's case or the reliability of the evidence or concerns about its weight: Dubois v. the Queen, 1986 60 (SCC), [1986] 1 S.C.R. 366; Mezzo v. the Queen, 1986 16 (SCC), [1986] 1 S.C.R. 802.

[148] The Supreme Court of Canada has recently reformulated the Shephard test in R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.). While the test is the same, the Court explained that the nature of the judge's task varies according to the type of evidence that the Crown tenders, whether the evidence at the preliminary inquiry is direct or circumstantial. Where the Crown has not presented direct evidence as to every element of the offence, the question becomes whether the remaining elements of the offence may "reasonably be inferred" from the circumstantial evidence. McLachlin C.J.C. in Arcuri at p. 31 held that 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."

[149] The Court went on to note that while the judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences the Crown asks the jury to draw, this weighing, however, "is limited". The judge does not ask whether he or she would conclude that the accused is guilty; neither does the judge draw factual inferences nor assesses credibility. The question to be addressed is "whether the evidence, if believed, could reasonably support an inference of guilt": R. v. Arcuri, supra, p. 32.

[150] In a ruling on an application for certiorari, R. v. C.T., [2005] O.J. No. 2772, Justice McCombs of the Ontario Superior Court of Justice described the function of the preliminary hearing judge in dealing with inferences to be drawn from circumstantial evidence in the following manner:

Accordingly, the preliminary inquiry judge must go beyond merely considering whether the circumstantial evidence presented by the Crown supports possible inferences that could establish the elements of the offence; the judge must also consider whether these inferences are reasonable. The inferences must therefore go beyond speculation or conjecture: R. v. Coke, [1996] O.J. No. 808 and R. v. Brissett, [2004] O.J. No. 5525.

[151] Justice Peter Harris in R. v. Osborne, [2007] O.J. No. 5255 at para 17 adds these comments respecting the difference between speculation and reasonable inferences:

Circumstantial inferences are ones which "can be reasonably and logically drawn from a fact or group of facts established by the evidence": R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at 209. Most cases "will involve hiatuses in the evidence which can be filled only by inference": Lameman v. Canada (Attorney General), 2006 ABCA 392, [2006] A.J. No. 1603 (C.A.) at para. 87. "The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess": U.S.A. v. Huynh (2005), 2005 34563 (ON CA), 200 C.C.C. (3d) 305 (Ont. C.A.) at 307. The same point is made in C.P.R. Co. v. Murray, 1931 53 (SCC), [1932] S.C.R. 112 at 117 in adopting the following dicta from Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39 at 45:

The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is reasonable deduction it may have the validity of legal proof.

[152] In the case of R. v. Munoz (2006), 2006 3269 (ON SC), 205 C.C.C. (3d) 70 (Ont. Sup. Ct.), Justice Ducharme explained the preliminary inquiry justice’s approach to circumstantial evidence as follows, at paragraph 21:

This limited weighing means that inferences to be drawn from circumstantial evidence need not be “compelling” or even “easily drawn” in order to be reasonable. R. v. Katwaru (2001), 2001 24112 (ON CA), 153 C.C.C. (3d) 433 (Ont. C.A.) per Moldaver J.A. at p. 444. If there are competing inferences, these are for the trier of fact to resolve….if a reasonable inference in favour of the Crown is available to be drawn, then, regardless of its strength, a judge conducting a preliminary inquiry is required to draw it.”

[153] Further at paragraph 22, Ducharme J. sought to define what constitutes a “reasonable inference”:

However, despite the very circumscribed scope of the preliminary inquiry judge's function with respect to the drawing of inferences, the weighing of the evidence involved, while limited, is of great importance. Any inferences relied upon by the judge to commit the accused must be both: (1) reasonably based on the evidence heard at the preliminary inquiry; and (2) reasonable. Such inferences cannot be based on speculation, no matter how seemingly reasonable. If the committal of an accused depends on an inference or inferences that cannot be reasonably drawn from the evidence – the accused must be discharged as there would be an absence of evidence on an essential element.

[154] The process of inference drawing was described by Doherty J.A. in R. v. Morrissey, supra, at p. 209 as follows:

A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation. As Chipman J.A. put it in R. v. White (1994), 1994 4004 (NS CA), 89 C.C.C. (3d) 336 at p.351, 28 C.R. (4th) 160, 3 M.V.R. (3d) 283 (N.S.C.A.):

These cases establish that there is a distinction between conjecture and speculation on the one hand and rational conclusions from the whole of the evidence on the other.

[155] In paragraphs 26 and 28, Justice Ducharme in Munoz, supra, sets out the approach a preliminary inquiry judge should follow in determining “reasonable inferences” from the proven facts:

26 The first step in inference drawing is that the primary facts, i.e. the facts that are said to provide the basis for the inference, must be established by the evidence. If the primary facts are not established, then any inferences purportedly drawn from them will be the product of impermissible speculation. [Citing Caswell v. Powell Duffryn Associated Collieries Ltd., [1940] A.C. 152 (H.L.) at 169-70 and R, v. Portillo (2003), 2003 5709 (ON CA), 176 C.C.C. (3d) 467 (Ont. C.A.)]

28 The second way in which inference drawing can become impermissible speculation occurs where the proposed inference cannot be reasonably and logically drawn from the established primary facts. This possibility stems precisely from the fact that an inductive conclusion is not necessarily valid. [Citing McLachlin C.J.C in Arcuri, supra, p. 31, see paragraph 146 above]

[156] In the final analysis, if there is sufficient evidence upon which a reasonable and properly instructed jury could convict, the preliminary inquiry judge must commit the accused to stand trial. Guilt or innocence is to be determined at trial: R. v. Sazant, supra, per Major J. at paras. 14-16; R. v. Deschamplain, supra.

6. The Law Respecting Criminal Organizations

[157] Although the sections of the Criminal Code dealing with criminal organizations were overhauled in 2001, there have been relatively few trial and appellate decisions. The leading case in Ontario is that of R. v. Lindsay, 2009 ONCA 532, [2009] O.J. No. 2700 (Ont. C.A.), which upheld the trial decision of Fuerst J. in R. v. Lindsay, 2004 16094 (ON SC), [2004] O.J. No. 845 (constitutionality ruling), [2005] O.J. No. 2870 (trial judgment), which found the legislation to be constitutional. The B.C.C.A. also dealt with the constitutionality of these sections in R. v. Terezakis, 2007 BCCA 384, [2007] B.C.J. No. 1592 (leave to appeal to S.C.C. refused), where the sections were upheld as being constitutional.

[158] A criminal organization is defined in s. 467.1 of the Criminal Code as follows:

"criminal organization" means a group, however organized, that

(a) is composed of three or more persons in or outside Canada; and (b) has as one of its main purposes or main activities the facilitation or commission of one or more serious[^87] offences that, if committed, 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.

It does not include a group of persons that formed randomly for the immediate commission of a single offence.

[159] In R. v. Terezakis, supra, Mackenzie J.A., of the British Columbia Court of Appeal dealt with the definition of "criminal organization" at para. 34. He stated:

The underlying reality is that criminal organizations have no incentive to conform to any formal structure recognized in law, in part because the law will not assist in enforcing illegal obligations or transactions. That requires a flexible definition that is capable of capturing criminal organizations in all their protean forms. The Code provisions are a response to that reality. Nonetheless, the persons who constitute "the group, however organized" cannot be interpreted so broadly as to ensnare those who do not share its criminal objectives.

[160] Justice Mackenzie further held at paragraphs 38 and 39:

It may be that the criminal organization offences were crafted intentionally to avoid the necessity of proving an agreement between conspirators and other technicalities that have encrusted that branch of the criminal law. Nonetheless, I think that the reference to an organized group necessarily implies a purpose or activity that is shared by those who form the group. With respect, I think that it overstrains the wording to extend it to persons who may share an innocent purpose but who are unaware of and do not share the main purpose or activity of facilitation or commission of serious offences. Where a criminal group shelters under the umbrella of a legitimate entity, the criminal organization must be limited to those persons associated by their criminal purpose or activity. The definition is functional in terms of shared purpose or activity and not necessarily co-extensive with any formal structure.

… As I read the definition the persons who compose the group must share a main purpose or activity that involves the facilitation or commission of serious offences. A person who does not share such a purpose or activity is not part of the group.

[161] Chaisson J.A., in R. v. Terezakis, supra, at para. 48 concurred with the result of Mackenzie, J.A. that the legislation was not legislatively flawed; however, he would have applied the definition section more broadly.

In my view, in a prosecution for an offence under ss. 467.11, 467.12 or 467.13, the Crown would be obliged to establish that the accused had knowledge of the criminal main purpose or activity of the group. Although it might be a reasonable inference from simply being part of the group, there is nothing in s. 467.1 that requires the Crown to establish that the accused shares, supports or even agrees with the criminal main purpose or activity.

[162] In a very recent trial into criminal organization charges, R. v. Sharifi, [2011] O.J. No. 3985, (Ont. Sup. Ct.) Maranger J., at paragraphs 31 and 37, in commenting on the above quote from Justice Mackenzie in Terezakis, supra, held:

31 This specific interpretation doesn't take away the fact that the group must nonetheless be organized. To operate as a group, some level of organization is necessary. I take this case to mean that the level of structure does not have to be sophisticated or particularly extensive.

37 The Oxford English dictionary defines the word organization as "a systematic arrangement of elements; a systematic approach to tasks; an organized body of people with a particular purpose, such as business or government department." The fact that the Criminal Code included the word "however", while allowing for a great deal of leeway in terms of the structure or composition of the organization, still requires evidence of the existence of an organization.

[163] In R. v. Atkins, [2010] O.J. No. 2990 (Ont. Ct. J., Harris J.) made the following observation concerning this same definition :

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 added)

[164] The issue, which arises from these cases, is whether the Crown must prove the added element set out by Justice Mackenzie in Terezakis, supra, that “persons who constitute "the group, however organized" cannot be interpreted so broadly as to ensnare those who do not share its criminal objectives”. This was incorporated by Justice Harris in Atkins, supra, where he held that “persons who constitute “the group, however organized”, are only associates of a criminal organization to the extent they share its criminal objectives.”

[165] This is an important issue on the facts of this case, in that, it is the Crown’s position that Mr. MacDonald is the head of a criminal organization which has two completely separate arms; one that facilitates or commits the serious criminal offence of trafficking in firearms and the other that facilitates or commits the serious criminal offence of trafficking in controlled substances. It is the Crown’s position that someone who supplies controlled substances to Mr. MacDonald or his criminal organization is caught by the definition set out in section 467.1. It is further the Crown’s position, by implication, that individuals associated with a separate criminal organization, which illegally import firearms and ammunition from the United States and who then supply those firearms and ammunition to Mr. MacDonald, would be part of Mr. MacDonald’s criminal organization and caught by the definition, as would any individuals to whom Mr. MacDonald, in turn, sold those same firearms and ammunition to. I will deal with this issue subsequently, in the analysis section of my reasons, as to whether there are reasonable inferences available on the evidence led at this preliminary inquiry that a criminal organization, as submitted by the Crown, existed.

[166] The added element as set out by Justice Mackenzie was not adopted by the majority in Terezakis, supra, (see paragraph 158), and I have been unable to find any other appellate authority supporting it. Consequently, for the purposes of determining whether there is some evidence supporting the existence of a criminal organization on the evidence called at this preliminary inquiry, it is my view that I need only refer to the language of the definition in section 467.1, as was held by the majority decision in Terezakis, supra. It is not a crime to be a member of a criminal organization. Once it has been established that a criminal organization exists, there must be some evidence that a person, being aware of the existence of a criminal organization, does anything for the purpose of enhancing the criminal organization’s ability to facilitate or commit indictable offences, and then knowingly participates in or contributes to any activity of the criminal organization (offence contrary to section 467.11), or commits an indictable offence for the benefit of, at the direction of or in association with, a criminal organization (offence contrary to section 467.12) or instructing the commission of a criminal offence for a criminal organization (offence contrary to section 467.13).

[167] In Terezakis, supra, at paragraphs 57-59, Justice Chaisson in dealing with the constitutionality of the legislation made these observations:

57 Constitutional consideration of the legislation must include the role played by the definition section, s. 467.1, and, in this case, its relationship with s. 467.13. The target being criminal organizations and the crimes being activities that support those organizations, the citizen must appreciate that an area of risk of criminal sanction exists.

58 At the core of the risk is knowledge that a main purpose or activity of the group is the facilitation or commission of serious criminal offences. Parliament has said very clearly that if a citizen were in a group of three or more persons that has some organization and the group has as a main purpose or activity the facilitation or commission of serious offences, the citizen is a member of a criminal organization. There is nothing vague about this. Parliament has not made it illegal to be a member of such a group, but Parliament has made it very clear that membership brings the citizen to the threshold of potential criminal sanction.

59 … There is nothing in the language of s. 467 that states membership in the group requires the person to share in or support any particular purpose or activity of the group. To read such a requirement into the section would be to alter the definition to say "three or more persons who share or support . . .".

[168] I find therefore from the cases cited above that in order for me to draw reasonable inferences as to the existence of a criminal organization, the Crown must provide some evidence at this preliminary inquiry that, “the group, however organized”:

• is composed of three or more persons

• has as one of its main purposes or main activities

• the facilitation or commission of one or more serious offences, that if committed

• would likely result in the direct or indirect receipt of a material benefit, including financial benefit, by the group, or any of the persons constituting the group

• it does not include a group of persons that forms randomly for the immediate commission of a single offence

[169] In respect of the phrase “the group, however organized”, I accept the comments made by Justice Maranger in Sharifi, supra, “the fact that the Criminal Code included the word "however", while allowing for a great deal of leeway in terms of the structure or composition of the organization, still requires evidence of the existence of an organization.” In my view, not all criminal organizations will have the characteristics and level of sophistication and extensive organization found in groups like the Hell’s Angels; however, there must be some level of organization.

[170] Pursuant to section 467.1(3), “committing an offence means being a party to it or counselling any person to be a party to it.”

[171] The Crown is not seeking committal on any charges pursuant to section 467.11 and, consequently, I will not set out that section or summarize it. This section deals with persons who “for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence knowingly participates in or contributes to any activity of the criminal organization.”

[172] Section 467.12 creates the offence of “committing an offence for the benefit of, at the direction of or in association with, a criminal organization.” It requires the Crown to prove that the accused:

• committed an indictable offence

• for the benefit of, or at the direction of, or in association with

• a criminal organization

[173] In R. v. Lindsay, supra, at para. 64, (Ont. Sup. Ct.), Justice Fuerst explained that in proving this offence, the Crown must establish that the accused knowingly committed the predicate offence and that he or she intended to do so for the benefit of, at the direction of, or in association with a group he or she knew had the composition of a criminal organization, although the accused need not have known the identities of those in the group. In paragraph 59, Justice Fuerst held that the phrase “in association with” is intended to apply to those persons who commit criminal offences in linkage with a criminal organization, even though they are not formal members of the group. In my view, this would encompass those situations where a member of a criminal organization conspires with his or her supplier, who may be part of a separate criminal organization, to traffic in firearms or controlled substances.

[174] Section 467.13 contains the most serious of the criminal organization offences, “instructing the commission of a criminal offence for a criminal organization”. In order to make out a charge under this section, the Crown must prove that the accused:

• was one of the persons who constituted the criminal organization

• knowingly instructed, directly or indirectly, any persons to commit an offence, and

• that it was for the benefit of, at the direction of, or in association with a criminal organization

[175] This section has a specific requirement that the accused be a member of the criminal organization. At the time the section was introduced in 2001, the Minister of Justice described it as an offence dealing with the “leaders in criminal organizations”.[^88] In R. v. Willis, 2007 605 (ON CJ), [2007] O.J. No. 5691, at para. 69 (Ont. Ct. J.), Justice Pringle made this observation:

Accordingly, the focus of the section is on the instructing member's connection to the criminal organization, and his act of "instructing" someone to carry out a criminal offence for or with the organization. To make out the offence of instruction, the Crown must prove that the accused knew he was part of the group, and was exercising the authority of the group for the group: Terezakis (at paras. 14-15 and 40-42).

See also Terezakis, supra, at paragraph 62.

7. The Law Respecting Conspiracy

[176] In R. v. Root (2008), 2008 ONCA 869, 241 C.C.C. (3d) 125, Justice Watt of the Ontario Court of Appeal described the elements of the offence of a conspiracy in the following manner at paragraphs 66 to 68:

66 For there to be a conspiracy, the prosecutor must prove beyond a reasonable doubt:

i. an intention to agree;

ii. completion of the agreement; and

iii. a common (unlawful) design

…Further, there must exist an intention to put the common (unlawful) design into effect.

67 In conspiracy cases, the important inquiry is not about the acts done in pursuit of the agreement, but whether there was, in fact, a common agreement in the first place to which the acts are referable and to which the alleged conspirators were privy. …

68 It is trite that the roles of individual conspirators may differ widely. The participants need not know each other, nor need they communicate directly with one another. Each need not know the details of the common scheme, though each must be aware of the general nature of the common design and be an adherent to it.…Each conspirator does not have to commit or intend to commit personally the offence the conspirators have agreed to commit.

See also R. v. Carter 1982 35 (SCC), [1982] 1 S.C.R. 938, 67 C.C.C. (2d) 568; R. v. Koufis (1941), 1941 55 (SCC), 76 C.C.C. 161 (S.C.C.).

[177] In deciding a conspiracy charge, it is customary to follow the three-step calculus laid down by the Supreme Court of Canada in R. v. Carter, supra.

a) At stage one, the trier of fact must be satisfied beyond a reasonable doubt that the alleged conspiracy actually existed. If, and only if, so satisfied, the court then proceeds to stage two.

b) At stage two, the court is required to review all the evidence directly admissible against the accused and decide on a balance of probabilities whether or not that accused was a member of the conspiracy. If, and only if, so satisfied, the court may then proceed to stage three.

c) At stage three, having concluded at stage two that the accused was probably a member of the conspiracy, the trier must go on to decide whether the Crown has established his membership beyond a reasonable doubt. At this stage, the trier of fact may consider as evidence against the accused, then under consideration, such acts and declarations of co-conspirators as it finds were done or said, as the case may be, in furtherance of the object of the conspiracy.

See R. v. Bayani. 2011 ONSC 5225, [2011] O.J. No. 4368 (Ont. Sup. Ct.).

[178] The Newfoundland Supreme Court - Court of Appeal in R. v. Buckingham (1998), 1998 18095 (NL CA), 124 C.C.C. (3d) 348, has provided a very helpful analysis of how the "three stage Carter test" might apply to a defendant facing drug conspiracy charges at a Preliminary Inquiry:

36 The preliminary inquiry justice was not obliged to decide the true meaning of the tapes: whether to be accepted literally, at face value and unoffending or, a concealment of the real message, a cover for expediting a transaction by drug traffickers. All that the preliminary inquiry judge had to determine was whether he was satisfied there was sufficient evidence to commit the appellant to trial and that opinion depended largely on whether the Crown's evidence, the twelve tapes as portrayed or interpreted by Constable Greeley, if believed, could result in a finding of the probable membership of the appellant in the conspiracy. On that lesser burden, it can be safely assumed that if the Crown's argument or position respecting the tapes is believed, that is, that the twelve tapes are indeed disguised language of two drug dealers doing business, it would constitute the necessary direct evidence of the appellant's membership in the conspiracy.

37 As I have said, the preliminary inquiry justice did not have to decide if the Crown's witness, Constable Greeley, was correct in his interpretation of the twelve tapes. He did, however, have to form an opinion on whether the twelve tapes, if believed, could reveal the appellant to be a probable member of the conspiracy with his brother Warwick. On that score there can be no room for doubt: if the conversations between the brothers, the appellant John Buckingham and his brother Warwick are found to be, at times, communications about a drug transaction or transactions, it would clearly show the appellant to be, at the very least, a probable member of the conspiracy to traffic. Assuming that to be the case, the preliminary inquiry justice was at liberty to continue the preliminary inquiry and review the five hearsay tapes between Warwick and others as part of the Crown's case to establish the membership of the appellant in the conspiracy. That is what in fact occurred, although the justice may not have fully appreciated and employed the Carter approach. In the end however, that is what happened and the result is the same.

8. The Law Respecting Possession

[179] Possession is defined in section 4(3) of the Criminal Code as follows:

(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.

[180] It is now well established in the law of possession that proof of knowledge of the prohibited substance or thing is the mens rea of the offence, and control of the substance or thing is the actus reus. See: R. v. Beaver (1957), 1957 14 (SCC), 118 C.C.C. 129 (S.C.C.); R. v. Terrence (1983), 1983 51 (SCC), 4 C.C.C. (3d) 193 (S.C.C.). Section 4(3) of the Criminal Code provides for three distinct forms of this possession: first, having the substance "in his personal possession"; second, having the substance "in the actual possession or custody of another person" or "where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession" (known as joint possession); and third, having the substance "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" (known as constructive possession).

[181] In R. v. Pham (2005), 2005 44671 (ON CA), 203 C.C.C. (3d) 326 the Ontario Court of Appeal held that to constitute constructive possession, the Crown must prove that the defendant had knowledge that extended beyond mere quiescent knowledge and disclosed some measure of control over the subject-matter. The majority of the Court further held that to constitute joint possession the Crown must prove that the defendant had knowledge, consent and some measure of control over the subject-matter. Consent, as set out in section 4(3)(b), requires more than mere indifference or passive acquiescence. (See R. v. Williams, 1998 2557 (ON CA), [1998] O.J. No. 2246 (Ont. C.A.); R. v. Piaskowski (1979), 1979 2920 (ON CA), 52 C.C.C. (2d) 316 (Ont.C.A.); and R. v. Liu Hai Hung, 1946 118 (ON CA), [1946] O.R. 187 (Ont. C.A.))

[182] It is not necessary for the prosecution to prove the required knowledge by direct evidence. It may be inferred from the surrounding circumstances. Reference may be made to the decisions of the Ontario Court of Appeal in R. v. Aiello, 1978 2374 (ON CA), 38 C.C.C. (2d) 485, R. v. Sparling, [1988] O.J. No. 1877, and R. v. Williams, supra.

9. Analysis of Contested Charges

[183] In dealing with the various charges where committal is contested, I intend to first focus on the substantive charges that are still in issue. I will then deal with the criminal organization charges generally and then deal with the specific allegations of the criminal organization offences respecting each defendant.

(a) Event #1:

Counts 7, 9-18, 20 – Provincial Information – Mr. Barker and Ms. Misangyi

[184] It is Mr. Pearce’s position, on behalf of Mr. Barker, that the evidence falls short and is not capable of supporting the inferences the Crown wishes to draw. The Crown’s case relies heavily on an intercepted communication between Mr. MacDonald and Mr. Barker on November 19, 2009 where Mr. Barker told Mr. MacDonald, “I can like I can give ya five okay.” He called Mr. MacDonald back a couple of hours later and told him, “…what I said before I’ll probably be able to do sumpin better.” It is Mr. Pearce’s position that there is no mention of firearms in these two calls and consequently, it is not a reasonable inference that Mr. Barker had anything to do with the firearms ultimately seized from Mr. Mujuzi.

[185] Ms. Monaco, on behalf of Ms. Misangyi, makes a similar argument that the evidence called at the preliminary inquiry does not support the inferences urged by the Crown that Ms. Misangyi was the individual who transported the firearms from Windsor to Toronto and then provided them to Mr. Currie before they were brought to Bling.

[186] There is no doubt that there are a considerable number of gaps in the evidence led by the Crown in respect of Event #1. Further, many of the inferences urged by Mr. Pearce and Ms. Monaco in their written submissions will be available to be argued, by the defence, before a jury at the trial. The issue at this preliminary inquiry is whether the inferences urged by the Crown are also available on the evidence, and whether the Crown’s inferences are reasonable and not impermissible speculation. As I have indicated previously, if there are competing reasonable inferences available, it is not my function to resolve them.

[187] In my view, the following reasonable inferences are available based on the evidence led by the Crown at this preliminary hearing:

(a) Jason Tompkins had a source of illegal firearms and ammunition in the United States and he was in the business of importing and then selling those firearms to persons in Canada. He was located in Windsor, Ontario; (b) Mr. Barker lived in Windsor and was connected to Tompkins’ business. It is a reasonable inference that Tompkins directed Barker to contact Phillip MacDonald, who they both knew would be interested in purchasing firearms. (This was demonstrated through conversations between Barker and Tompkins where they discussed MacDonald’s H1N1 illness and that it was a good thing MacDonald did not die. Tompkins referred to MacDonald as Barker’s cousin.); (c) Barker contacted MacDonald to see if he was interested in purchasing five “firearms” and later advised him that he could do better; (d) Barker came to Toronto on November 25, 2009, to provide MacDonald with the firearms and receive payment; (e) MacDonald was very interested in when Barker would be arriving in Toronto, as was evidenced by the numerous calls between them on November 25; (f) MacDonald and Barker met at Spy Depot and drove to MacDonald’s store, Bling, where they initially went inside and within a few minutes surveillance officers observed Barker exiting Bling. Barker walked to Danforth and Logan where he met with Katherine Misangyi, had a conversation with her and then they both walked to and entered a red Chevy Cavalier that was parked on Logan. The registered owner had an address in Windsor. (g) Misangyi is related to Tompkins by marriage; her husband, David Faubert, is Tompkins’ half-brother. Misangyi had a conversation with Tompkins on November 24, 2009, where she attempted to set up a meeting between them and at one point in the conversation Tompkins told her, “Don’t say a word”, from which one could infer that Tompkins did not want Misangyi to say anything incriminating on the phone. This conversation occurred the day before both Barker and Misangyi travelled from Windsor to Toronto (I should indicate that it was Ms. Monaco’s position that this comment could not be made out on the intercepted call; however, I have listened to this call on several occasions and I am able to make out the comment as transcribed.); (h) the red Cavalier was not able to be followed by police surveillance and was lost. Barker was observed entering Bling four or five minutes after the police lost sight of the red Cavalier. The red Cavalier was never seen by police again on November 25. There is a reasonable inference available that Barker and Misangyi met up with John Currie and provided him with the firearms and ammunition at a location close to Bling; (i) Another reasonable inference available is that Barker met with Misangyi to provide her the payment for the firearms and ammunition that he had received from MacDonald, either on the drive or when he went inside Bling. MacDonald was observed by police surveillance to enter Bling through the back door carrying something heavy, one or two minutes after Barker returned from meeting Misangyi. Barker’s Taurus was parked behind Bling. MacDonald was observed carrying something heavy behind the counter at Bling with Barker present; (j) Currie, based on the evidence, acted throughout as a “courier” or “driver” for MacDonald. (There were numerous occasions when Currie picked up or delivered items on MacDonald’s instructions.) Currie was last seen leaving Spy Depot at approximately the same time MacDonald and Barker left in Barker’s Taurus to go to Bling; (k) Currie returned to Bling carrying a large hockey bag about 18 minutes after Barker returned to Bling. MacDonald and Barker walked to the back of Bling at the same time Currie entered the back door. In my view, there is a reasonable inference that Currie brought the firearms and ammunition into Bling in the hockey bag given that within a few minutes after Currie’s arrival, MacDonald was texting and calling his purchasers and offering the firearms for sale; (l) at 6:31 p.m., Tompkins texted Misangyi, “Everything’s okay?” She did not respond. Tompkins texted Barker at 6:34 p.m., “Everything’s okay?” Barker responded, “Ya, just working out the details.” At 7:28 p.m., Misangyi texted Tompkins, “Heading home now.” In my view, there is a reasonable inference available that Barker and Misangyi worked for Tompkins and were parties to the offences of possessing, transporting and transferring prohibited and restricted firearms and ammunition; (m) Misangyi arrived back in Windsor around 11:30 p.m. She texted Tompkins phone that she was almost home (11:12 p.m.) and then spoke to David Faubert, who called on Tompkins’ cell phone (11:19 p.m.) and advised him that she would be there in 11 minutes. In my view, this evidence supports the inference that Misangyi transported the firearms and ammunition from Windsor to Toronto and then, after picking up Barker and transferring them to Currie, returned to Windsor, her task being completed; (n) Another reasonable inference that is available is that Misangyi was provided the money by Barker when they met up and she was delivering that money to Tompkins, who was with her husband; (o) Barker remained in Toronto for a further day or two, which could lead to an inference that he was waiting until MacDonald was able to sell the firearms and provide payment to him. On November 26 at 8:41p.m., Barker texted MacDonald and asked “what’s going on”, MacDonald responded, “I’ve got files, tree guy being slow but going to come true.” Barker texted, “So tomorrow” and MacDonald responded, “Ya, one or the other.” In my view, the above inference is available on the evidence;

[188] Therefore, taking into account the totality of the evidence in relation to this event, and based on the above reasonable inferences, all of which can be drawn from the evidence, it will be for a jury to decide which inferences they accept. Mr. Barker and Ms. Misangyi will be committed to stand trial on Counts 7, 9-18 and 20 contained in the Provincial Information.

(b) Event #1:

Counts 7, 9-18, 20 – Provincial Information – Mr. Currie

[189] It is Mr. Elbirt’s position, on behalf of Mr. Currie, that it is speculation that Mr. Currie met with Ms. Misangyi, sometime after 6:01 p.m., to transfer the firearms and ammunition, brought by Ms. Misangyi from Windsor, into a hockey bag, which he then brought to Bling at 6:24 p.m. Mr. Elbirt argues that there was no evidence as to what was contained in the hockey bag. It was never located by police. Mr. Elbirt points to police surveillance evidence that observed Mr. MacDonald, at 6:07 p.m., enter the back door of Bling carrying something heavy. He is then observed carrying something heavy behind the counter.

[190] As I indicated previously, there are a considerable number of gaps in the evidence led by the Crown in respect of Event #1 as it relates to Mr. Barker’s and Ms. Misangyi’s involvement. The same can be said concerning Mr. Currie. The issue at this preliminary inquiry is whether the inferences urged by the Crown are also available on the evidence and whether the Crown’s inferences are reasonable and not speculation. Inferences do not need to be “compelling” or “easily drawn” in order to be reasonable and, if there are competing reasonable inferences available, it is not my function to resolve them.

[191] In my view, the following reasonable inferences are available based on the evidence led by the Crown at this preliminary hearing:

(a) I draw the same reasonable inferences I did previously (See paragraph 186, supra) dealing with the evidence relating to Event #1; (b) Mr. Currie, based on the evidence, acted throughout as a “courier” or “driver” for MacDonald. (There were numerous occasions when Currie picked up or delivered items on MacDonald’s instructions.); (c) On November 25, 2009, at 1:37 p.m., Currie was driving MacDonald in the green Jeep just outside the Spy Depot. MacDonald was speaking to Barker, who was coming from Windsor, while he was with Currie. During the morning and afternoon there were a number of intercepted calls between MacDonald and Barker, where they discussed Barker’s arrival time. In my view, there is a reasonable inference that Currie was aware of the transaction, which was to take place between MacDonald and Barker, and he was providing assistance to MacDonald; (d) When Barker arrived at the Spy Depot, Currie and MacDonald were both inside and the green Jeep was parked outside. Currie left the Spy Depot after MacDonald and Barker left in Barker’s Taurus; however, no surveillance evidence was led as to where Currie went or what did; (e) At 6:07 p.m., MacDonald was observed carrying something heavy into Bling through the back door and was then observed carrying something heavy behind the counter. This was one or two minutes after Barker returned to Bling, after he met Misangyi. This could lead to a reasonable inference that MacDonald had retrieved the firearms and ammunition from Barker’s Taurus, which was at the back of Bling; (f) Currie arrived at Bling at 6:24 p.m., in the Jeep. He retrieved a large hockey bag and brought it into Bling. In my view, there is also a reasonable inference that Currie brought the firearms and ammunition into Bling in the hockey bag given that within a few minutes, after Currie’s arrival, MacDonald was texting and calling his purchasers and offering the firearms for sale; (g) Further, given the timing of Barker leaving Bling, meeting Misangyi and then returning to Bling after being away only four or five minutes, there is a reasonable inference that Barker provided Misangyi with the location to meet Currie for the exchange of the firearms. Misangyi met with Currie, exchanged the firearms and Currie brought them to Bling; (h) On November 26, 2009, at 5:432 p.m., MacDonald was on the phone with Rambo and arranged for Rambo’s guy to come to Bling at 9:30 p.m. There is a reasonable inference that Rambo’s guy was coming to pick up the firearms and ammunition MacDonald had received earlier from his transaction with Barker. At 9:37 p.m., Currie and MacDonald were observed leaving Bling in the Jeep. Rambo called MacDonald at 9:37 p.m., when MacDonald was in the Jeep with Currie, and told MacDonald that his guy was at Bling. MacDonald agreed to return to Bling. At 10:11 p.m., Currie and MacDonald arrived at the back door of Bling and Currie removed a shopping bag from the Jeep, which he handed to MacDonald. The police made these observations on the camera that had been installed at the back door of Bling. MacDonald was observed carrying that bag into Bling; (i) Joseph Mujuzi was observed entering Bling, empty-handed. A short time later he was observed leaving Bling carrying a red/blue Compliments bag with white handles. On the evidence led during the preliminary inquiry, that bag was the same bag that Currie handed to MacDonald after they returned to Bling. In my view, there is a reasonable inference on the totality of the evidence that Currie was a party to the firearms offences involving Barker, Misangyi, Tompkins and MacDonald. There is a reasonable inference that he had knowledge and exercised control over the firearms that were ultimately seized from Joseph Mujuzi after he left Bling.

[192]