Court File and Parties
Court File No.: (Not provided)
Date: September 16, 2013
Location: London, ON
Ontario Court of Justice
Between:
Her Majesty the Queen
-and-
Robert Walters
Reasons for Decision
Counsel:
- P. Bailey for Crown
- J. Dean for Mr. Walters
Judge: George J.
Facts and Evidence
[1] Robert Walters pleaded not guilty to a charge of conspiring to commit the offence of trafficking in cocaine.
[2] The trial commenced and evidence was completed on August 28th, 2013. Two Crown witnesses testified. No defence was called. I dismissed an application for a non-suit concluding that a reasonable jury, properly instructed, could convict on the evidence presented. It was adjourned for further argument and to allow counsel to research certain issues and reference case law. That was done and I am prepared now to deliver my reasons.
[3] Ottawa Police Constable Kevin Linnet was acting undercover as part of an investigation titled Project Lizard, which targeted drug traffickers in the St. Thomas area. Constable Linnet testified that as a result of prior undercover operations, his experience generally, and based on his drug specific training, he had familiarity with the drug subculture, including the language used by users and dealers alike, and the types of places they frequented.
[4] He testified that he first met Mr. Walters in St. Thomas in the fall of 2012 at a bar called Legends. Over time, they got to know each other better. Constable Linnet testified that he knew Mr. Walters as Bobby and learned that he owned a tattoo shop, which he visited in November of 2012. On that occasion Constable Linnet had a discussion with him about drugs. He testified that he asked Mr. Walters if he knew anyone with "soft" (referring to cocaine) to which Mr. Walters responded "not right now as the stuff available is junk…there is no good quality cocaine in the area".
[5] Their final encounter, which forms the subject matter of this charge, occurred on December 1, 2012 at an establishment called Ken Iguanas bar, also in St. Thomas. Constable Linnet spent a good part of this evening at the bar speaking to several individuals, all of whom were described as targets of this investigation. He did not meet Mr. Walters until about 2 a.m. as they passed each other outside. At this point, Constable Linnet said to Mr. Walters - "hey big dog…see you later". Mr. Walters responded by saying "are you good for the night?". Upon Constable Linnet stating he was fine, Mr. Walters then said "yeah, but are you good for the night?"
[6] The officer was qualified and permitted to give opinion evidence as to what exactly that meant. According to Constable Linnet, one possible meaning, which he believed was the case here, was an inquiry into whether he had enough drugs for the evening. Constable Linnet responding by stating - "unless you can get me some soft".
After advising Mr. Walters he wanted "just a gram", Mr. Walters stated "no problem….I just need to make a call…..it will only take five minutes…….nothing comes through this place without me knowing…I run this place".
[7] Mr. Walters was then observed to pull out his cell phone. Constable Linnet testified he could see him texting something but could not tell what was being written. He testified he could see a contact by the name of Devon pop up on the screen, something which was not vigorously challenged in cross-examination. Constable Linnet advised that he then followed Mr. Walters through the bar and out the back door which entered onto a patio and near a parking lot. As a blue car pulled into the parking lot, Mr. Walters said "that's him - he's here" and proceeded to approach the car. It was not disputed by the defence that the person in the car was Devon Vandendriessche, the alleged co-conspirator.
[8] The evidence establishes that Mr. Walters first approached the car. After a brief attendance at the car, Mr. Walters moved back as Constable Linnet approached, remaining about five to six feet away.
[9] Devon asked Constable Linnet "how much do you want bro". Of significance is the fact he did not ask what he wanted. This, the Crown argues, confirms that that information was communicated beforehand by Mr. Walters. Constable Linnet handed over $100 and was given $20 back. He was then provided two plastic wrapped quantities of cocaine. This exchange was concluded by Constable Linnet saying "cool, thanks bro". He doesn't recall saying anything to Mr. Walters afterwards. He maintained possession of the substance until he could hand it over to another officer later that morning.
[10] The cross-examination of Constable Linnet didn't cast any doubt on his evidence. There was some mild suggestion, through the questioning, that this was done on account of duress and that the officer had intimated to Mr. Walters that he was a member of the Hells Angels. That exploration yielded little.
[11] The only other point of contention was the suggestion that Mr. Walters did not precede Constable Linnet in approaching the car, as this wasn't contained in his notes. Constable Linnet maintained that to be true, which is confirmed by the second Crown witness, Sergeant Perrin who clearly describes, as he was holding an observation point behind the bar, Mr. Walters approaching the car first.
[12] Sergeant Perrin indicated in his evidence that "Mr. Walters approached the car and bent over on the passenger side of the vehicle. He then stood up at which point Constable Linnet went over and spoke to someone inside the vehicle". He obviously didn't know at the time that a drug transaction was taking place and could not possibly have heard what was being said.
Legal Analysis
[13] Section 465 of the Criminal Code of Canada creates the offence of conspiracy. The Crown is attempting to establish that Mr. Walters is a principal conspirator, together with Devon Vandendriessche. The defence argues that the evidence is insufficient as to an agreement and that the Crown has just not proven its case beyond a reasonable doubt.
[14] An agreement is defined in the Canadian Oxford Dictionary, as the act of agreeing; the holding of the same opinion; a mutual understanding; an arrangement between parties as to a course of action.
[15] There is no direct evidence of an agreement. I have no document. Wiretap evidence was not presented. I did not receive copies of the text messages, nor did I hear evidence as to what was said or written as between Vandendriessche and Walters. Having said that, although it would always be compelling, there is no requirement it come in that form.
[16] A proper jury instruction would include reference to the following:
First, a definition of agreement as being the coming together or meeting of minds of two or more people who have a common object or purpose. There needn't be an exchange of promises or consideration in a traditional contractual sense.
Second, to pose the following question: is there evidence that each person intended to achieve this common purpose or goal, and is it established by an expression of words, actions, or both? In this case the object or purpose being to sell cocaine to Officer Linnet.
[17] I can draw inferences in this respect, keeping in mind that to convict, the inference that leads to a finding of guilt must be the only reasonable one. In assessing this, I am mindful of the court's opinion in R. v. Paradis (1934), 61 C.C.C. 184 (S.C.C.) (which was referenced in the Chrisanthopoulos [2003] N.J. No. 34 decision provided by the Crown), which indicates the following:
Conspiracy like all other crimes, may be established from inference from the conduct of the parties. No doubt the agreement between them is the gist of the offence, but only in very rare cases will it be possible to prove it by direct evidence. Ordinarily the evidence must proceed by steps. The actual agreement must be gathered from "several isolated doings" (Kenny, Outlines of Criminal Law, 13 ed., p. 294) having possibly little or no value taken by themselves, but the bearing of which one upon the other must be interpreted; and their cumulative effect, properly estimated in the light of all surrounding circumstances, may raise a presumption of concerted purpose entitling the jury to find the existence of the unlawful agreement.
[18] To defence counsel's submission that there are other possible explanations or inferences, I find the following comments in R. v. Paul, [1977] 1 S.C.R. 181 helpful:
I do not think that the burden resting upon the Crown to establish the guilt of the accused beyond a reasonable doubt includes the added burden of negativing every conjecture to which circumstantial evidence might give rise and which might be consistent with the innocence of the accused.
[19] I ask myself the following question. Does what happened here look like it happened by chance or did it because the participants had agreed to commit it beforehand? After applying common sense, I have no choice but to conclude the latter.
[20] I note that, even though it is not an essential element of the offence, the crime was completed, and it's clear on the evidence it would not have but for the actions of each of Vandendriessche and Walters. This does raise the odd spectre of an unusual proceeding wherein a completed offence had been proven, but not charged. This was not lost on me, but that curious decision on the part of the police does not in and of itself negate the elements of a conspiracy.
Decision
[21] Having regard to all that was said and done by Mr. Walters, and having regard to what I know to be Mr. Vandendriessche's actions, I am convinced beyond a reasonable doubt that the offence of conspiracy was committed. I therefore find Mr. Walters guilty.
Date: September 16, 2013
Justice Jonathon C. George