Court File and Parties

Court File No.: Central East Region 14-13201 Date: 2015-02-04 Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Isan Murley and Isan Jupiter

Before: Justice M. Felix

Heard on:

• September 2, 2014
• November 3, 4, 5, 2014
• December 8, 9, 10, 11, 12, 15, 23, 2014

Oral Judgment: January 21, 2015

Reasons for Judgment released: February 4, 2015

Counsel:

• A. Weiler and C. Otter — Counsel for the Public Prosecution Service of Canada
• S. Pennypacker — Counsel for the defendant Isan Murley
• G. Grill and E. Bingham — Counsel for the defendant Isan Jupiter

Reasons for Judgment

Introduction

[1] Isan Murley [MURLEY] and Isan Jupiter [JUPITER] are charged with a number of drug-related offences arising out of a police project targeting drug trafficking in the Region of Durham known as "Project Wanipitee". A number of individuals have been charged with offences. This trial concerns two individuals MURLEY and JUPITER. A co-accused Thomas GWIZD [GWIZD] on the Information was not present at the commencement of the trial and as a result the trial proceeded without him.

[2] The evidence at trial consisted of intercepted communications, surveillance evidence, and the seizure of drugs and instruments used to traffic in drugs.

Theory of the Crown - Overview

[3] The trial focused on five central allegations in 2013:

1. Trafficking of cocaine on May 29th;
2. Trafficking of cocaine between June 18th and June 20th;
3. A seizure of drugs at 2575 Danforth Avenue in Toronto on June 27;
4. A seizure of drugs at 95 Baldwin Avenue in Whitby on June 27th; and
5. The arrest of JUPITER and MURLEY and resultant seizure of drugs related to a traffic stop in Bracebridge, Ontario on June 26th.

[4] With respect to the first two allegations of trafficking, the federal prosecutor alleges a broad conspiracy or joint enterprise on the part of Tyler CAIRNS [CAIRNS] and others to traffic cocaine in Durham Region. The core of this ongoing joint enterprise led by CAIRNS was the fact that he relied on several different members of the joint enterprise to supply him with cocaine that he then resold. The Crown theory is that MURLEY is one such supplier. The prosecution relies on the co-conspirator's exception to the hearsay rule ["co-conspirator's exception"] to admit the declarations of other members of the joint enterprise against MURLEY. In addition, the prosecution seeks the admission of intercepted communications alleged to originate with MURLEY.

[5] With respect to the third allegation, the federal prosecutor alleges that JUPITER possessed illegal drugs in an apartment at 2575 Danforth for the purpose of trafficking.

[6] With respect to the fourth allegation, the federal prosecutor alleges that MURLEY possessed marihuana for the purpose of trafficking at 95 Baldwin Avenue.

[7] With respect to the fifth allegation, the federal prosecutor alleges that MURLEY, JUPITER and GWIZD possessed cocaine for the purpose of trafficking in a motor vehicle.

Procedure

[8] The federal prosecutor sought to admit expert opinion evidence from Staff Sergeant Cyril Gillis in this case. At first MURLEY and JUPITER contested this generally on the basis that the witness was biased, lacked objectivity, and that some of his proposed evidence did not require expertise. A voir dire was held. Towards the end of the voir dire the challenge was abandoned and the areas of controversy were isolated in a copy of the expert's report. Notwithstanding this concession, the Court has a responsibility to continually evaluate the parameters of the expert opinion to ensure that it does not stray into impermissible or irrelevant inferences (R v Sekhon, 2014 SCC 15, [2014] 1 SCR 272 (QL) at para 76).

[9] The federal prosecutor sought to rely upon the co-conspirators exception to admit intercepted communications and other evidence concerning a broader conspiracy in Durham Region. Although MURLEY is not charged with a discrete count of conspiracy, the admission of the intercepted communications was sought to assist with establishing that he trafficked in narcotics. The Court determined that the federal prosecutor would call the crown's case (at a minimum) so that the Court could determine the issue of conspiracy and the admission of intercepted communications on the basis of all of the prosecution evidence at trial. The purpose of this approach was to prevent any delay occasioned by an interim ruling on the evidentiary issue and to ensure that any ruling was placed in the context of all of the evidence at trial (R v Chang, [2003] O.J. No 1076(Q.L.) at para 57 (OntCA)). At the close of the crown's case the defence did not call any evidence. As a result, submissions concerning the expert opinion evidence, the co-conspirator's exception to the hearsay rule, and the trial were heard at the same time.

Organization of this Decision

[10] I will first analyse the test set out in R v Carter, [1982] 1 S.C.R. 938(QL) including a resolution of the issue of identification of MURLEY on the intercepted communications. I will then resolve the five central allegations re-stated here for ease of reference as:

1. Trafficking of cocaine on May 29 2013;
2. Trafficking of cocaine on June 27 2013;
3. a seizure of drugs at an apartment at 2575 Danforth Avenue in Toronto;
4. a seizure of drugs at 95 Baldwin Avenue in Whitby; and
5. arrest and seizure of drugs related to a traffic stop in Bracebridge, Ontario on June 26, 2013.

Co-Conspirator's Exception to the Hearsay Rule

Conspiracy

[11] The Ontario Court of Appeal provided an excellent summary of the law of conspiracy in R v H.(A.), [2005] O.J. No 3777 (QL) at para 46 - 48 (OntCA), leave to appeal to SCC refused, [2005] S.C.C.A. No 526(QL):

46 The appellants' submissions stand on firm legal footing. The actus reus of the crime of conspiracy lies in the formation of an agreement, tacit or express, between two or more individuals, to act together in pursuit of a mutual criminal objective. Co-conspirators share a common goal borne out of a meeting of the minds whereby each agrees to act together with the other to achieve a common goal: G. Williams, Criminal Law: The General Part, 2nd ed. (London: Stevens & Sons, 1961) at 667-68; R. v. Cotroni (1979), 45 C.C.C. (2d) 1 (S.C.C.), at 17-18, 23-24; United States v. Dynar (1997), 115 C.C.C. (3d) 481 (S.C.C.), at 511-12; R. v. McNamara (No. 1) (1981), 56 C.C.C. (2d) 193 (Ont. C.A.), at 452-55, aff'd without reference to this point (1985), 19 C.C.C. (3d) 1 (S.C.C.); P. MacKinnon, "Developments in the Law of Criminal Conspiracy" (1981), 59 Can. Bar Rev. 301 at 308 ; M.R. Goode, Criminal Conspiracy in Canada (Toronto: Carswell Toronto, 1975) at 6-18.

47 It follows from the mutuality of objective requirement of the actus reus that a conspiracy is not established merely by proof of knowledge of the existence of a scheme to commit a crime or by the doing of acts in furtherance of that scheme. Neither knowledge of nor participation in a criminal scheme can be equated with the actus reus of a conspiracy: see R. c. Lamontagne (1999), 142 C.C.C. (3d) 561 (Que. C.A.), at 575-76; R. v. Cotroni, supra, at pp. 17-8. Knowledge and acts in furtherance of a criminal scheme do, however, provide evidence, particularly where they co-exist, from which the existence of an agreement may be inferred.

48 The actus reus of the crime emphasizes the need to establish a meeting of the minds to achieve a mutual criminal objective. This emphasis on the need for a consensus reflects the rationale justifying the existence of a separate inchoate crime of conspiracy. Confederacies bent upon the commission of criminal acts pose a powerful threat to the security of the community. The threat posed by a true agreement to jointly bring about a criminal end justifies a preemptive strike by the criminal law as soon as the agreement exists, even if it is far from fruition. However, absent a true consensus to achieve a mutual criminal objective, the rationale for the crime of conspiracy cannot justify criminalizing joint conduct that falls short of an attempt to commit the substantive crime: see I.H. Dennis, "The Rationale of Criminal Conspiracy" (1977), 93 Law Q. Rev. 39 ; P. Gillies, The Law of Criminal Conspiracy (Sydney, Australia: Law Book Co. Ltd., 1981) at 327.

Co-Conspirators Exception Where No Discrete Count Alleged

[12] There is no discrete count of conspiracy in this case. This is not required to permit resort to the co-conspirator's exception (R v Koufis, [1941] S.C.R. 481 (QL); R v Y(N.), [2012] O.J. No 5165(QL)(OntCA); Chang, supra, at para 55)

[13] The application of the hearsay exception to this case means that the analysis must consider the common design or joint enterprise alleged rather than framing the analysis with reference to any particular count or counts on the information (R v Sauvé, [2004] O.J. No 248(QL) at paras 111 – 120 (OntCA))

The Carter Test

[14] In Carter, the Supreme Court of Canada set out a three part test for admission of hearsay evidence in conspiracy cases. The test requires the following steps modified slightly to adapt to this case:

1. The Court must be satisfied beyond a reasonable doubt that the conspiracy or joint enterprise in fact existed;

2. If the conspiracy or joint enterprise is found to exist, the Court must review all of the evidence that is directly admissible against the accused and decide on a balance of probabilities whether or not the accused is a member of the conspiracy or joint venture; and,

3. If the Court concludes on a balance of probabilities that the accused is a member of the conspiracy or joint enterprise then the Court must go on and decide whether the Crown has established membership beyond a reasonable doubt. In this last step the Court may apply the hearsay exception and consider evidence of acts and declarations of co-conspirators done in furtherance of the object of the conspiracy or joint enterprise as evidence against the accused on the issue of his guilt.

Step One: Was there a conspiracy or joint enterprise?

[15] The federal prosecutor alleges that there was a broad conspiracy or joint enterprise to distribute cocaine in the Durham Region. The joint enterprise centred on CAIRNS and his ongoing purchases of cocaine on a multi-ounce level from various suppliers. The federal prosecutor alleges that the joint enterprise showed that CAIRNS was involved in ongoing cocaine sales both wholesale and retail with the full knowledge of one of the suppliers – MURLEY.

What evidence may be considered

[16] The Ontario Court of Appeal succinctly outlined the evidence that may be considered at step one in R v Puddicombe, 2013 ONCA 506, [2013] O.J. No 3507(QL) at paras 111-112 (OntCA), leave to SCC refused, [2013] S.C.C.A. No 496:

111 In Carter, at p. 947, the court, in describing step one of the Carter instruction, indicated that the jury must consider "all of the evidence" when deciding whether the Crown had proved the existence of the alleged agreement beyond a reasonable doubt: see also Bogiatzis at paras. 19, 57. "All of the evidence" must refer to evidence properly admissible under the rules of evidence. Those rules begin with the primary command of relevance. Evidence that as a matter of logic and human experience makes the existence of the conspiracy more likely is relevant to prove the existence of the conspiracy unless excluded by some specific rule.

112 Evidence offered to prove the existence of the alleged agreement will not often engage the hearsay rule. Generally, at the step one inquiry, testimony of things said and done by alleged conspirators is tendered not for its truth, but as circumstantial evidence of the existence of the agreement. The admissibility of the evidence depends on whether as a matter of logic and human experience an inference of the existence of the agreement is available from the evidence considered in its totality. Admissibility on the question of the existence of the agreement does not depend on whether the evidence consists of acts and declarations in furtherance of the conspiracy: see David Paciocco & Lee Stuesser, The Law of Evidence, 6th ed. (Toronto, Irwin Law, 2011), at pp. 156-58; R. v. Smith ; R. v. James, 2007 NSCA 19, 216 C.C.C. (3d) 490 at paras. 187-91 , paras. 235-38.

[17] All of the evidence in this trial is available for consideration as to whether in fact a joint enterprise has been proven beyond a reasonable doubt. The acts and declarations of other members of the joint enterprise are receivable as circumstantial evidence of the agreement at this stage.

May 29th Allegation

[18] On May 29th, 2013, COATES ordered 9 ounces of cocaine for $10,000.00 from CAIRNS. CAIRNS communicated with Shaylendra Gocool [GOCOOL] with a view to obtaining product for the purpose of trafficking. GOCOOL could not deliver so CAIRNS went to a second supplier Paul Latchmana [LATCHMANA]. CAIRNS requested that LATCHMANA create the product with 7 ounces of cocaine and 2 ounces of mix. It is clear from the context and content of the communications that CAIRNS was seeking cocaine and mix to produce crack cocaine.

June 18, 2013 Allegation

[19] On June 18, 2013 CAIRNES sought 3 ounces of cocaine from the person alleged to be MURLEY. The person alleged to be MURLEY facilitated the sale of product to CAIRNS. During this conversation, the person alleged to be MURLEY references that there might be some product up the street but the "guys probably sleeping". I am suspicious that this is a reference to the address at 95 Baldwin. But, there is no evidence of cell towers associated with phone number 289-600-9476. It would have been a relatively straightforward exercise for the police to obtain cell tower information in this case with prior judicial authorization. Cell tower information would have shown whether or not the person believed to be MURLEY was located in Durham proximate (i.e. up the street) to 95 Baldwin (e.g. the address on Green street). As such in the absence of evidence my suspicion is not sufficient. Nonetheless, I am satisfied that the person believed to be MURLEY was referencing some location where he has possession and some control over drugs.

[20] During these text messages the person believed to be MURLEY related to CAIRNS that there is no available product (a "3") for a little bit unless they go to Toronto. CAIRNES suggested that they go to Toronto. At approximately 10:04 HRS the person believed to be MURLEY told CAIRNS to pick him up in 20 minutes proximate to Winterberry Drive. Twenty-five minutes later CAIRNES picked up MURLEY a few houses down from a street called Winterberry Drive and they proceeded to 2575 Danforth.

[21] I am satisfied that MURLEY procured and delivered cocaine to CAIRNS. Within 45 minutes of dropping off MURLEY on LuttrelI Avenue CAIRNS travelled back to the region of Durham and sent out a mass text advertising product for sale to 35 different customers. I am satisfied that the purpose of these acts was to obtain product, dilute the product, and re-sell the product thereby realizing a greater sum gain. COATES made it clear to CAIRNES that there was a distribution network downstream relying on the quality that they would "chef".

Conclusion: Joint Enterprise

[22] I find that CAIRNS was involved in the acquisition and re-sale of illegal drugs on these two dates. To be frank, the joint enterprise is not complicated. On May 30th, 2013 CAIRNS received an order for 9 ounces of cocaine from COATES. CAIRNS sought out a supplier. GOCOOL could not deliver. LATCHMANNA could not deliver. MURLEY could.

[23] On June 18th, 2013, MURLEY arranged to sell 3 ounces of product to CAIRNS. CAIRNES sold the product to Kwabena Sarpong-Donkar (aka "Dro") [DONKAR]. When DONKAR complained about quality, the person alleged to be MURLEY made arrangements for restitution.

Buy and Sell Transactions

[24] In my respectful view, a simple buy and sell transaction, in isolation, may not provide evidence of a conspiracy or joint enterprise. This issue was not litigated or argued before me but I would be remiss if I did not address it briefly. I find that something more than a mere transaction is required. An ongoing relationship between a buyer and seller where there is evidence that the parties are aware that product is for re-sale is sufficient.

[25] There was in fact an over-arching joint enterprise lead by CAIRNS to traffic in illegal drugs in the region of Durham. The two examples on May 30th and June 18th are evidence of that over-arching common intention. There are several factors that lead me to this conclusion. First of all, the simple fact of the amount of the cocaine sought and received by CAIRNS was for the purpose of re-sale (i.e. trafficking). Second, separate and apart from the amounts involved it appears clear that CAIRNS was aware that the product he is selling was for re-sale. This imputes the business concept of a "going concern" (i.e., ongoing business relationship). Third, it is apparent on the evidence that these were not "one-off" transactions. No introductions are made amongst the parties. The parties knew each other prior to the events in May and June 2013. Finally, the actions of the person alleged to be MURLEY in response to SANKAR's complaint of poor quality product display that person's concern for the ongoing business relationship.

[26] The actions of CAIRNS and others (including MURLEY) did not constitute a simple buy and sell transaction. In my view, the actions of CAIRNS, in seeking to obtain product for re-sale, ground the common agreement or intention required for conspiracy (see R v Sokoloski, [1977] S.C.J. No 13 (QL); R v Sohrabian, [1993] O.J. No 3094(QL)(OntCA); R v Rowbotham, [1988] O.J. No 271 (QL)(OntCA); R v. Longworth, [1982] O.J. No 3428 (QL)(OntCA)).

[27] I am satisfied beyond a reasonable doubt that there was a joint enterprise between CAIRNS, COATES, SANKAR, MURLEY, and others to traffic in cocaine in the region of Durham. This overarching agreement informs the acts and declarations of others involved with his enterprise including acts on the part of MURLEY and declarations allegedly made by MURLEY. For the purpose of the analysis at this stage I relied on MURLEY's acts. With respect to the intercepted communications I referred to the person communicating with CAIRNS as the person "alleged to be MURLEY" (i.e., this person could be anyone including MURLEY). For the analysis at stage one I need not be satisfied as to the identification of all of the members of the joint enterprise. The question as to the proof of MURLEY's involvement depends on whether or not he is identified on the intercepted communications. This will be addressed in step two of the analysis.

Step Two: Having reviewed all the evidence directly admissible against Isan Murley was he a participant in the conspiracy or joint enterprise on a balance of probabilities?

[28] The issue at step one of the Carter analysis is not whether MURLEY is involved in the joint enterprise but whether a joint enterprise existed at all. At step two I must analyse whether or not MURLEY was a probable member of the conspiracy. I will consider all the evidence directly admissible against MURLEY. The direct acts and declarations of MURLEY are to be examined, not in isolation, but in the context of the evidence at trial including the acts and declarations of co-conspirators. A determination as to probable-membership in a conspiracy requires this context (R v Kane, [1981] O.J No 132 (QL) at para 17 (OntCA), aff'd, [1984] S.C.J. No 20 (QL)).

[29] For the reasons that follow, I am satisfied as to the identity of MURLEY in Exhibits 1 and 2 beyond a reasonable doubt. The evidence directly admissible against him shall include the communications found in exhibits 1 and 2 (R v Wang, [2013] B.C.J. No 1407 (QL)(BCCA), leave to appeal to SCC refused, [2013] S.C.C.A. No 368).

Identification of Isan Murley -- Intercepted Communications

[30] The identification of MURLEY on the intercepts both as a person speaking and as the author of certain text messages ("text ID") is a core issue in this trial.

[31] MURLEY submits that the Crown has not proved beyond a reasonable doubt that he is the person communicating on the intercepted communications in exhibits 1 and 2. He submits that the Crown theory is just that – a theory.

[32] The prosecution submits that identification has been established. The sequence of communications and movements establishes the identification of MURLEY. Further, the admission of the acts and declarations of the co-conspirators provides necessary context to understanding what MURLEY'S criminal actions were. I agree.

[33] I would also observe that identifying MURLEY on the intercepted communications is also relevant because his communications may provide evidence of admissions directly admissible against him.

Burden of Proof - Identity

[34] It is important to keep in mind that no direct evidence has been called to prove the voice identification of MURLEY. The evidence I must assess is circumstantial.

[35] There is no discrete count alleging conspiracy in this case. If this were the case, there would be no question that identity would be an essential element requiring proof beyond a reasonable doubt. This makes sense because while the prosecution need not prove individual facts beyond a reasonable doubt, essential elements of an offence must be proven beyond a reasonable doubt.

[36] In this case, the prosecution seeks to establish MURLEY'S participation in a conspiracy so that certain evidence may be received against him. The over-arching conspiracy and the acts and declarations of others would be receivable against him. Identification of MURLEY in this context is significant as the prosecution relies on the co-conspirators exception to impute the acts and declarations of other parties complicit in the joint enterprise to MURLEY. As a result, given the significance of this finding, there can be no quarrel with the Court holding the prosecution to proof beyond a reasonable doubt (R v Masters, [2014] O.J. No 3464(QL)(OntCA)).

May 30, 2013 Identification of Isan Murley: 289-928-6605

[37] An analysis of the identification issue must place the circumstances involving CAIRNS in context on May 30, 2013. I accept that CAIRNS had a 3:00 PM deadline to provide drugs to COATES. It is evident from the communications between CAIRNS and 289-928-6605 overall that CAIRNS was concerned with securing cocaine. CAIRNS was not driving around absent a particular object; His object was to secure product in a timely way for COATES.

[38] CAIRNS went to 76 Baldwin Street, Brooklin, Ontario and at 12:21 HRS sent a text to 289-928-6605 indicating "Here". At 12:26 HRS the person in possession of cellphone 289-928-6605 texted back "Come up the street". Approximately 30 seconds later MURLEY got into CAIRN'S car. I do not accept the submission that the second message was from someone unrelated to MURLEY. I am not troubled by the fact that CAIRNS did not go up the street. I am aware that up the street is 95 Baldwin, a place linked to MURLEY. I do not believe that CAIRNS was texting someone other than MURLEY. If CAIRNS was receiving a text from someone else requesting that he go up the street why did he not in fact go up the street? Why is there no evidence of another person meeting CAIRNS at this time? I find it is because the person he contacted was MURLEY. MURLEY came to the car rather than the car going to him.

[39] CAIRNS drove MURLEY back and forth between two locations proximate in time to MURLEY acquiring a pampers box and another smaller cassette-sized box. I am satisfied that one or both were instruments used to conceal cocaine product. When I examine the photographs of MURLEY on the driveway at 95 Baldwin the second box is clearly visible. It has some dark colouring and orange colouring. One can even make out a small black and white product code.

[40] The first ride involved an unknown male, MURLEY, and two small children being transported to the address on Green Street. If there was a time to transport a pampers box containing diapers it was at that time. When a pampers box contains diapers it generally travels with children – not separately.

[41] In this case CAIRNS and MURLEY took great care to transport the children from 76 Baldwin at 12:26 HRS without the pampers box, only to return to the same location at 13:11 HRS where MURLEY disappeared in the vicinity of 85 Baldwin. While I do not have specific evidence as to the distance between 76 and 95 Baldwin I have reviewed the map of the area and I am prepared to infer that it is a short (walking) distance away. MURLEY then re-appeared at 13:39 HRS leaving the driveway of 95 BALDWIN with the pampers box and the small cassette-sized box. He then put the pampers box and small cassette-sized box in the rear of CAIRNS' vehicle. There are twelve intervening text messages between 13:18 HRS and 13:39 HRS where I find CAIRNS is expressing concern about the production of cocaine and trying to rush the production. It is also significant that CAIRNS remains removed from the premises at 95 Baldwin (even though there is a long driveway with ample room for cars to park) until 13:41HRS when MURLEY comes out with the pampers box and small cassette-sized box and puts the items in the rear seat.

[42] The meeting with CAIRNS was not by happenstance or coincidence. This was not a circumstance where MURLEY innocently happened upon CAIRNS and secured a ride to an address on Green Street. I do not accept the speculative submission that these circumstances are equally consistent with a random meeting between MURLEY and CAIRNS and a spontaneous request for a ride. If that was so, there would be a short ride, a drop off at the Green Street address, and the end of their association for the day. There would be no delivery of the pampers box and smaller cassette-sized box.

[43] MURLEY submits that there are plausible alternative theories that may account for the text messages if one takes a CAIRNS- centric view. The general problem with this submission is that it requires me to speculate about the involvement of others while ignoring evidence of a significant connection between MURLEY and the 95 Baldwin address. One theory submitted was that CAIRNS did not in fact source from MURLEY because he successfully sourced from LATCHMANA. If I was to accept this, I would have to: (1) ignore the fact that there were four attempts by CAIRNS to reach LATCHMANA between 12:10 HRS and 12:48 HRS; and (2) disregard their conversation the following day concerning LATCHMANA's failure to deliver and CAIRNS having to "place the next call". A second theory concerns the absence of text messages about children and this may lead to an inference that CAIRNS was texting a third party. I do not accept this theory because it is not sufficiently based in fact. It is speculative.

[44] Finally, I have observed that there are no text messages or other communications between CAIRNS and 289-928-6605 when CAIRNS and MURLEY are confirmed together by police surveillance. The obvious inference being there is no need for CAIRNS to text 289-928-6605 when the person in possession of that phone is present.

[45] The combination of these factors, placed in the context of the evidence overall, leads me to the firm conclusion that MURLEY was utilizing 289-928-6605 on May 30, 2013.

June 18, 2013 Identification of Isan Murley: 289-600-9476

[46] I have considered a number of factors with respect to identification of MURLEY on June 18, 2013.

[47] On June 18, 2013 CAIRNS telephoned 289-600-9476 seeking 3 ounces of cocaine. He engaged in a text message exchange with 289-600-9476. At 10:04 HRS CAIRNES telephoned 289-600-9476 with the object of picking up the person in possession of 289-600-9476. He intended to pick up this person close to Winterbury (Drive) in 20 minutes so that they could go together to Toronto to obtain product. At 10:30 HRS I find that MURLEY was picked up by CAIRNS proximate to Winterberry Drive.

[48] The two men went to the area of 2575 Danforth. MURLEY was observed entering the front door of 2575 Danforth. At 11:43 HRS CAIRNES sent a text to 289-600-9476 "let's roll". Seven minutes later the person in possession of 289-600-9476 telephoned CAIRNS to advise that he is was on the elevator now. Approximately sixty seconds later MURLEY entered CAIRN'S vehicle observed by surveillance officers. It is clear that 2575 Danforth is a high-rise apartment building. I am prepared to infer there is an elevator in that building.

[49] I have the benefit of evidence from surveillance officers, video, and photographs documenting MURLEY's association with CAIRNS on this date. Once again, it is significant that CAIRNS does not communicate with 289-600-9476 while he is confirmed to be in the presence of MURLEY.

[50] Counsel for MURLEY submits that the mass text advertising product for sale occurred while MURLEY was left behind in Toronto. This is not significant. As outlined above I am satisfied that CAIRNS was engaged with multiple parties to secure product for the purpose of trafficking. That he obtained product from a supplier and waited to return to Durham to send a message is of no moment. There was no requirement that MURLEY accompany him to effect his purpose of trafficking. Although I acknowledge that MURLEY did accompany him on May 30th.

[51] Counsel for MURLEY submits that that it is significant that after the poor quality product issue is disclosed there is no further communication between CAIRNS and the person alleged to be MURLEY that day. This submission fails to consider the direct contact with the person alleged to be MURLEY at 19:56 HRS the same day and two text messages that day. While there is the intervening contact with an associate of MURLEY named Phillip BARDOWELL [BARDOWELL] it is clear that BARDOWELL is not personally responsible. The discussions between CAIRNS and BARDOWELL make reference to a responsible third party and it is clear that BARDOWELL is an intermediary. CAIRNS implicitly accepts this and takes the position that BARDOWELL is responsible because he is partnered with the third party.

Conclusion: Identification of Isan Murley

[52] Having considered all of the evidence outlined above, I am satisfied beyond a reasonable doubt that MURLEY is the person texting and communicating by telephone where indicated in Exhibits 1 and 2.

[53] In addition to the evidence outlined above, I should indicate that the Court has listened to the intercepts and has evaluated this evidence to determine whether identification has been established beyond a reasonable doubt. There were a number of reasons why this was important. First, the Court should be satisfied with the characterization of the calls and the transcription in Exhibits 1 and 2. The Court should not simply accept the police or prosecution's characterization of the evidence. Second, the Court has a responsibility to assess the contested intercepted communications and text messages in the context of the evidence at trial overall rather than in isolation. Third, there is a heightened concern with identification evidence and great care must be taken to ensure that a person is not wrongfully identified. Fourth, were there a Jury in this case, they would be entitled to listen to the calls and assess the identification issue.

[54] I have listened to the calls in relation to Count #2 contained in Exhibit #2 at tabs 1, 6, 8, 18, 22, and 24. I can clearly distinguish between the person identified as CAIRNS and another person he is speaking to in these calls. I am satisfied that the calls at tabs 1, 6, and 8 are the same person. I am satisfied that the calls at tab 18, 22, and 24 are the same person.

[55] The implication of this finding is that MURLEY used two different phones in June and still another phone in May. I am not troubled by this or astonished that multiple phones are being used. I am not certain that I need to rely on expert opinion evidence to tell me that persons engaged in criminal enterprises switch phones. Anyone who has a passing familiarity with modern television drama programs would be aware that those who wish to engage in criminal endeavors often take steps to shield communications by switching phones. In addition, in this case there is evidence of multiple cellphones at 2575 Danforth. JUPITER also has an affinity for several phones it seems as evidenced by documentation found in his dufflebag when he was arrested. This is a common sense inference available on the evidence in the context of this case and I have no trouble drawing it.

[56] I am satisfied that MURLEY was the person utilizing both 289-600-9476 and 249-358-3473 on June 18 and 19, 2013. I am satisfied that MURLEY was the person using 249-358-3473 as well. On June 19th MURLEY says that he is in North Bay. Whether or not this is true I can take judicial notice that area code 249 is connected to north-eastern and central Ontario.

Evidence of Isan Murley's Acts and Declarations

[57] Having found that MURLEY is in fact the person communicating with CAIRNS on May 30, 2013 and June 18, 2013 I must consider MURLEY'S acts and declarations to determine if he is a part of the overall joint enterprise on a balance of probabilities. There are a number of significant factors to consider when determining MURLEY'S criminal liability for trafficking in cocaine. These factors are relevant as evidence of MURLEY'S own acts and declarations under step two of the Carter test, evidence under step three of the Carter test, and as evidence of trafficking.

Isan Murley's Declarations

[58] I will adopt the analysis set out above under the heading "Identification of Isan MURLEY – Intercepted communications". When I consider these declarations in context they are communications directly implicating MURLEY in trafficking on May 30th and June 18th, 2013. I would observe that these declarations alone are sufficient to find that MURLEY is a probable member of the joint enterprise. But I will go on to analyse other important factors.

95 Baldwin: A Drug Production Facility

[59] Another significant factor is MURLEY'S connection to 95 Baldwin and his association with GWIZD. The prosecution theory is that 95 Baldwin is a "stash house" used by MURLEY to produce and store cocaine and marijuana. GWIZD resides at 95 Baldwin and is involved in production of drugs, is a custodian of drugs, or both. The prosecution theory is that GWIZD and MURLEY are involved in a joint enterprise to traffic in drugs.

[60] I am satisfied that the basement of 95 Baldwin was being used as a drug production facility. In coming to that conclusion I have considered the following:

1. The security camera pointing down the basement stairs;
2. The fact that the camera is connected to a display screen in the basement so that those in the basement may observe persons entering the basement;
3. The lock on the small room (closet) in the basement containing illegal items;
4. The presence of a home-made mechanical press (i.e. an instrument fabricated for the producing of drugs as opposed to a commercially available press as described by the expert witness);
5. The grinder, an instrument used for production of drugs, located right on top of the press;
6. The vacuum sealer;
7. The money counter;
8. 2160 grams of marihuana in an open box approximately one or two feet away from the press and grinder; and,
9. The set up in the basement is suggestive of some permanence.

[61] Permanence, reasonably, is related to production for the purpose of trafficking. The expert opinion evidence of Staff Sergeant Gillis informs me that the home-made mechanical press can be used to assist with the production both marijuana and cocaine. Some of the marihuana seized from the basement was vacuum-sealed and in bags ready for distribution. The press could be used to compress marijuana before vacuuming sealing as this cuts down on the odour and may assist with shelf-life of the product.

[62] There is a white residue on the mechanical press and grinder as Detective Constable Johnston observed during his examination in chief. The police conducted a screening test (the "nick test") for cocaine and it was positive. The police did not test these items further to confirm the results of the nick test. While I would have difficulty concluding that the press and grinder were implicated in the production of cocaine based on the "nick test" alone, when I consider all of the evidence in this case and the circumstances, it is a reasonable and available inference that these instruments were used for production of crack cocaine.

Access to the Basement of 95 Baldwin

[63] I am satisfied that GWIZD was a resident of the basement. His identification was found in the basement and the evidence of his mother establishes this fact.

[64] On May 30th, a vehicle associated to GWIZD (Toyota Echo) was on the driveway at 95 Baldwin when MURLEY attended and was communicating with CAIRNS about the production of cocaine. During those messages MURLEY references a difficulty with the "press". I infer that MURLEY was in the basement of the residence proximate, if not within, in that padlocked "closet" with GWIZD. MURLEY was referencing a third party "judging the mix". It is a reasonable inference to draw that the third party was GWIZD.

Conclusion: Carter Test Step Two

[65] There are six reasons why I am satisfied that MURLEY was a part of the joint enterprise:

1. I am satisfied that MURLEY sold 9 ounces of cocaine to CAIRNS on May 30th, 2013 and 3 ounces of cocaine to CAIRNES on June 18th, 2013.

2. I have considered MURLEY'S declarations in Exhibits 1 and 2 including his text messages.

3. The sale of 9 ounces of cocaine on May 30th was for re-sale and MURLEY was aware of this. I am satisfied that MURLEY was aware that CAIRNS was obtaining this product for immediate re-sale.

4. I have considered MURLEY'S presence at the time of the sale by CAIRNS to COATES at 110 Lupin Street. I have watched this video several times. At approximately 0:04 on the video CAIRNS passed a small box to COATES. It does not look dissimilar to the box that MURLEY had in his possession at 95 Baldwin. It has some orange colour to it and appears to be approximately the same size.

5. I have considered MURLEY'S presence at the time of (what I am satisfied) was a sale of drugs to an unknown woman in the parking lot of the Whitby Mall at 14:37 HRS. The video clearly shows a drug transaction.

6. I have considered MURLEY'S connection to 95 Baldwin, the purpose of 95 Baldwin, and the involvement of GWIZD.

[66] Based on the evidence in this case I am satisfied that MURLEY was more than a simple supplier of product to CAIRNS. He was aware of the ongoing nature of CAIRNS's business and based on the evidence admissible only against him, his involvement in the joint enterprise has been established on a balance of probabilities.

Step Three: Has the Crown proven Isan Murley was part of the conspiracy or joint enterprise beyond a reasonable doubt.

[67] Having found that a joint enterprise existed, and that MURLEY was probably a participant, the co-conspirator's exception applies. At this last step, the Court may consider the acts and declarations of co-conspirators done in furtherance of the object of the joint venture in determining whether MURLEY was part of the joint venture beyond a reasonable doubt.

[68] I have considered the evidence in this case and it strikes me that MURLEY himself provides the best evidence of his commitment to the joint enterprise in two clear examples.

The May 30th Transaction

[69] The analysis explained above under the headings "Carter – Stage One Analysis" and "Evidence of Murley's Acts and Declarations" clearly indicates MURLEY'S knowledge that his sale to CAIRNS was going to result in an almost immediate re-sale. I find that MURLEY was present for two subsequent re-sales. This provides evidence of MURLEY'S generalized concern for the ongoing joint enterprise to distribute cocaine in the Durham Region.

[70] Even if I am wrong in this analysis there is a more damning example.

Sankar Donkar – The Unsatisfied Customer

[71] The clearest example of MURLEY'S overarching concern for the joint venture relates to MURLEY's efforts to rectify the bad product he provided to CAIRNS that resulted in a complaint by Kwabena Sarpong-Donkar (aka "Dro") [DONKAR]. At 19:10 HRS on June 19th CAIRNS was first advised by DONKAR that the cocaine he receive was of poor quality. CAIRNS then calls BARDOWELL at 19:17, 19:20, 19:41, and 19:43 HRS discussing the issue. It is clear that BARDOWELL is not responsible as a responsible third party is referenced. By 19:56 HRS CAIRNS was addressing the issue directly with MURLEY. When CAIRNS addressed the matter directly with MURLEY there was no longer a third party referenced as in the discussions with BARDOWELL. It is abundantly clear that MURLEY takes steps to organize restitution and remedy for the conflict involving a person in Peterborough. He does this even while apparently out of town with the assistance of BARDOWELL.

[72] This evidence shows a connection between CAIRNS, MURLEY, and BARDOWELL and their mutual interest to ensure that a customer is satisfied. This is the most glaring example of MURLEY's attention to the over-arching joint enterprise. His relationship with CAIRNS is not a one-episode exchange.

Conclusion – Counts 1 and 2, Trafficking

[73] I should begin by briefly addressing the expert opinion report filed in this case. I have relied generally on the report filed as exhibit 3 on the voir dire. This report contains yellow highlighting indicating the areas that MURLEY and JUPITER dispute. I am prepared to accept the evidence contained in the report. I will not engage in an analysis of specific areas of the report wherein I may draw my own common sense inferences. The challenge to the admission of the report was abandoned. With respect to the contested areas I make the following findings:

1. Page 4 -- I need not accept this contested area as it is conceded that the 61.8 grams of cocaine seized from the Toyota Echo is for the purpose of trafficking;

2. Page 5 -- I am prepared to accept the general proposition that at times drug dealers speak in code to avoid detection by the police;

3. Page 9 -- I accept that a Pack, P-Pack, or 9 depending on the context may refer to 9 ounces of cocaine;

4. Page 8 and 9 -- I do not accept the conclusions. I would point out that the expert witness was careful and conservative in this area of opinion. I share his conservative approach; and,

5. Page 10 and 11 -- I need not make a finding with respect to this area of opinion.

[74] I am satisfied that MURLEY was engaged in a joint enterprise with CAIRNS to distribute cocaine in the region of Durham. MURLEY'S role was as a supplier of cocaine to CAIRNS. In addition to his involvement with CAIRNS, MURLEY was involved with other members of the joint venture at times. MURLEY relied on GWIZD for the production and care of product. He also relied on BARDOWELL, as an instrument of resolution in June 2013.

[75] I find that the calls between CAIRNS and MURLEY, in combination with the actions taken by MURLEY, are more than sufficient to satisfy me beyond a reasonable doubt of MURLEY'S guilt for the offence of trafficking alleged in counts 1 and 2 (R v. Neil, 2010 ONCA 281, [2010], O.J. No 1518.(QL)(OntCA)). To be clear, relying simply on the evidence at trial, MURLEY'S declarations, and MURLEY'S acts, I am satisfied beyond a reasonable doubt. I need not resort to the co-conspirator exception. Separate and apart from any argument relying on the co-conspirator's exception, I am satisfied that MURLEY'S text messages and telephone conversations are directly admissible against him as admissions (R v Niemi, [2006] O.J. No 1727 (QL) at para 50 (OntCA)). As explained by Mr. Justice Sopinka in R v Evans, [1993] S.C.J. No 115 (QL) at para 24:

The rationale for admitting admissions has a different basis than other exceptions to the hearsay rule. Indeed, it is open to dispute whether the evidence is hearsay at all. The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party. Its admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements. As stated by Morgan, "[a] party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of oath" (Morgan, "Basic Problems of Evidence" (1963), pp. 265-6, quoted in McCormick on Evidence, ibid., p. 140).

[76] Any reliance on the acts and declarations of others in furtherance of the joint enterprise is relevant and helpful to establish context. With respect to count 1, the conversations between CAIRNS and COATES, CAIRNS and GOCOOL, and CAIRNS and LATCHMANA establish that CAIRNS was sourcing a supplier for product. This provides context to the fact that CAIRNS then relied on MURLEY to deliver. The conversations between CAIRNS and COATES after the trafficking has occurred establish that as between CAIRNS and COATES there was an ongoing relationship and not a one-time transaction. MURLEY was the intervening necessary participant in the joint enterprise. All of the conversations in Exhibit 1 are in furtherance of the joint enterprise.

[77] With respect to Count 2, the integral involvement of MURLEY is clear as outlined earlier in this judgment. The mass advertisement text from CAIRNS and the conversations between CAIRNS and DONKAR provide context to MURLEY'S subsequent involvement to rectify the circumstances. That MURLEY took steps via BARDOWELL and "P" in Peterborough belies his commitment to the ongoing joint enterprise with CAIRNS and others. These actions are in furtherance of the ongoing joint enterprise. Once again all of the conversations in Exhibit 2 are in furtherance of the joint enterprise.

[78] MURLEY will be found guilty of counts 1 and 2.

[79] I will now move on to three other central allegations in this case: the seizure of drugs at 2575 Danforth Avenue in Toronto on June 27; the seizure of drugs at 95 Baldwin Avenue in Whitby on June 27th; and the arrest of JUPITER and MURLEY and resultant seizure of drugs related to a traffic stop in Bracebridge, Ontario on June 26th.

Possession, Constructive Possession, Joint Possession

[80] The law of possession is a significant factor impacting the analysis of the seizure of drugs at 2575 Danforth, 95 Baldwin, and within the Toyota Echo. Counsel have addressed the law of possession extensively in written submissions, memoranda of law, and oral submissions. As a result I will only briefly address the law in this area.

[81] The Ontario Court of Appeal in R v Pham, [2005] O.J. No 5127 (QL) at paras 13-18 (OntCA) set out helpful guidance on the relevant framework:

13 Section 2 of the Controlled Drugs and Substances Act, S.C. 1996 C.19 adopts the definition of "possession" in subsection 4(3) of the Criminal Code. That section reads:

4(3) For the purposes of this Act,

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

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

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

14 Section 4(3) of the Code creates three types of possession:

(i) personal possession as outlined in section 4(3)(a);

(ii) constructive possession as set out in section 4(3)(a)(i) and section 4(3)(a)(ii); and

(iii) joint possession as defined in section 4(3)(b).

15 In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v. Caldwell (1972), 1972 ALTASCAD 33, 7 C.C.C. (2d) 285 (Alberta Supreme Court, Appellate Division); R. v. Grey (1996), 28 O.R. (3d) 417 (C.A.).

16 In order to constitute joint possession pursuant to section 4(3)(b) of the Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession. See R. v. Terrence, [1983] 1 S.C.R. 357 (S.C.C.); R. v. Williams (1998), 40 O.R. (3d) 301 (C.A.); R. v. Barreau, 9 B.C.A.C. 290, 19 W.A.C. 290 (B.C.C.A.) and Re: Chambers and the Queen (1985), 20 C.C.C. (3d) 440 (Ont. C.A.).

17 The element of knowledge is dealt with by Watt J. in the case of R. v. Sparling, [1988] O.J. No. 107 (Ont. H.C.) at p. 6:

There is no direct evidence of the applicant's knowledge of the presence of narcotics in the residence. It is not essential that there be such evidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination, the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied by the applicant, and; the applicants apparent occupation of the premises may serve to found an inference of the requisite knowledge.

The court of appeal decision in R. v. Sparling, [1988] O.J. No. 1877 upheld the above passage as being sufficient evidence to infer knowledge.

18 The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of the offence of possession. This can be accomplished by direct evidence or may be inferred from circumstantial evidence. In Re: Chambers and the Queen, supra at 448, Martin J.A. noted that the court may draw "appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug."

[82] The Supreme Court of Canada recently addressed the concept of constructive possession in R v Morelli, [2010] 1 S.C.J. No 8 (QL) at para 17:

17 Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "in the actual possession or custody of another person" or "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" (Criminal Code, s. 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person.

[83] In R v Terrence, [1983] S.C.J. No 28 (QL) the Supreme Court of Canada provided the following instructive guidance:

In the course of his reasons for judgment rendered on behalf of the Court of Appeal, Mr. Justice MacKinnon reviewed the relevant cases concerning the ingredients of possession under s. 3(4) (b) of the Criminal Code and concluded that in order to establish "possession" under that section it was necessary that there should be evidence of control on the part of the accused. In the course of these reasons he said:

In my view, on the proven facts the necessary measure of control was not established beyond a reasonable doubt by the Crown, nor do those facts allow for the invocation of s. 21. If, by way of example only, it were established that the appellant had directed Hayes to drive to Kingston, that, in light of all the other proven facts, would in my view satisfy the requirement of some measure of control over the car. If, by way of further example, he had been seen handing the stolen licence plates to Hayes for them to be placed on the motor vehicle that, once again in my view, would be sufficient to warrant the application of s. 21 and to establish constructive possession of the car by the appellant.

Section 21 of the Criminal Code defines the meaning of "parties" to an offence and involves the question of common intention. It will be remembered that in the present case there is no suggestion that the respondent participated in any way in the actual theft of the car by an unknown person which took place some time before he was invited to drive in it and there is nothing to support a finding of common intention in relation to the offence of "possession" with which the respondent is here charged.

[84] Asserting speculative alternative theories is of limited assistance when they are not grounded in the evidence (Pham, at para 22).

[85] I instruct myself and adopt the reasoning in paragraphs 30 of Pham:

30 The trial judge instructed himself on reaching a conviction based on inferences from proven facts. At page 4 of the judgment he states as follows:

If I am to convict on inferences of fact, I must be satisfied beyond a reasonable doubt that guilt is the only reasonable inference to be drawn from all of the proven facts. In assessing inferences for each piece of evidence the reasonable doubt standard is not to be applied each time. I am to consider the inference suggested against any other reasonable inference that can be drawn and attribute weight accordingly. All of the evidence that I determine merits weight is then assessed on the reasonable doubt standard.

This is in keeping with what Lord Wright emphasized in Caswell v. Powell Duffy Associated Collieries Ltd., [1940] A.C. 152, Where at p. 169 he stated:

... that inference must be carefully distinguished from conjecture or speculation and there can be no inferences unless there are objective facts from which to infer other facts which it is sought to establish.

In R. v. Lukianchuk, 2001 BCSC 119, [2001] B.C.J. No. 3000, 2001 B.C.S.C 119, Romilly J. had this to say at page 7 paragraph 19:

In R. v. To, [1992] B.C.J. No. 1700, supra the accused was arrested after placing a plastic bag in a vehicle. The bag contained several videotapes and 4.4 lbs of heroin. The trial judge disbelieved the accused's evidence that he did not know what was in the bag. McEachern C.J.B.C. stated at page 230:

It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility. The criminal law requires a very high degree of proof especially for inferences consistent with guilt, but it does not demand certainty. I do not think it can properly be said that the inferences of knowledge in this case would be unreasonable or unsupported by the evidence.

Seizure: Basement of 95 Baldwin

[86] This Court will not repeat the analysis conducted under the headings "95 Baldwin: A Drug Production Facility", "Access to basement of 95 Baldwin" and "Conclusion Carter Test Step Two" above. The prosecution theory in relation to this count is that given that GWIZD and MURLEY were part of a joint enterprise to traffic in cocaine, MURLEY is implicated in the production of the marijuana found at 95 Baldwin.

[87] In addition to that evidence linking MURLEY to 95 Baldwin there are the following factors:

1. On June 26, 2013 the Toyota Echo is observed by the police leaving 95 Baldwin, going to 2575 Danforth, and then ultimately it is stopped by the OPP. Marijuana is located proximate to MURLEY in a clear container and red bag;

2. The 2610 grams of marihuana was open and clearly visible when the warrant was executed; and,

3. While there is no direct evidence I am prepared to infer that the press in the basement was used to produce the large amount of packaged freeze-dried marijuana. The press, the grinder, and other instruments used to produce marijuana were found only one or two feet away from the seized marihuana.

[88] There is no question in my mind that the basement of 95 Baldwin was used as a drug production facility. I have already found beyond a reasonable doubt that MURLEY used the premises to facilitate trafficking of cocaine on May 30th, 2013 and that he was proximate to the basement "closet" where the press was found.

[89] There is no question that MURLEY and GWIZD had access and some control over the basement premises. The press itself was located in GWIZD residence. His ID is located therein. His mother's evidence makes it clear he resided in the basement.

[90] I have no trouble concluding that drugs were being produced in the basement. I have no trouble coming to a conclusion that GWIZD and MURLEY were jointly involved in drug trafficking based on their association together, their mutual connection to 95 Baldwin, and the circumstances involved in their arrest together in the Toyota Echo on June 26th. If GWIZD were before me today, based on the prosecution's case alone, there would be compelling evidence of his guilt on the evidence that I have heard.

[91] The question becomes whether MURLEY is in joint or constructive possession. I make the following observations:

1. I am prepared to infer that the setup of the basement on May 30th largely matched that observed when the search warrant was executed. I believe that this was a drug production facility and that the instruments required to produce drugs remained there;

2. There is no evidence that the marijuana observed upon execution of the search warrant was present on May 30th, 2013, when I have found that MURLEY would have been in the area of the press when communicating with CAIRNS.

3. The prosecution theory requires me to infer that MURLEY had possession and some control on May 30th, 2013 and or June 26th, 2013.

4. MURLEY was observed accessing 95 Baldwin and in the presence of GWIZD on June 26, 2013. He was observed by Detective Constable Kostansi to have a box with him. He may have even entered the basement area given he was with GWIZD. This inference is strengthened by the fact that at 19:10 HRS MURLEY is first observed and then he and GWIZD leave 95 BALDWIN at 19:53 HRS so he was there for at least 45 minutes.

5. There are no intercepted communications involving GWIZD.

6. There was no capture of text communications involving GWIZD.

7. There is no intercepted communication suggesting that MURLEY was involved in the production and /or trafficking of marijuana.

8. There is no evidence that CAIRNS and MURLEY and other members of the joint enterprise trafficked in marijuana.

9. The marijuana seized from GWIZD car on June 26th was not tested or compared to the marijuana seized at 95 Baldwin. There is no evidence that they have a common source as was submitted by the prosecution.

10. Wigglesworth was found in the residence at the time the warrant was executed. His charges were withdrawn on the first day of trial. I have a statutory declaration from him. He has no evidence to provide that is relevant to the issues in this trial

[92] There is no direct evidence of personal possession of the large amount of marijuana in the basement. In order to fix MURLEY with criminal liability the prosecution must demonstrate based on the circumstantial evidence available that he had knowledge, possession and some measure of control. On these facts there is no evidence of personal, constructive, or joint possession.

[93] The prosecution must demonstrate some measure of control over the drugs, not just the location where the drugs were found. It would seem unlikely that the marihuana was present on May 30th. The expert opinion evidence and common sense observation that those who are involved in the production and trafficking of illegal drugs wish to sell their product rather than stockpile it for lengthy periods of time is relevant. MURLEY was observed by the police at 95 Baldwin on June 26th coming out of the door of the residence with a box. He was in the residence that day. It is true that he was in the company of GWIZD and it might even be true that he attended the basement with GWIZD that day and was in the vicinity of the marijuana. MURLEY'S previous attendances at 95 Baldwin was for the purpose of securing cocaine. While I am satisfied that MURLEY had access to this location, was present, and may have even been in the same room as the press, I am not satisfied beyond a reasonable doubt that the marijuana was there when he was present on May 30th or that he had possession of the marihuana on June 26th.

[94] This is not to suggest that MURLEY has some peculiar specialization or is adverse to the prospect of trafficking in marijuana, it simply means that I do not have evidence or facts from which I may draw a reasonable inference that he was complicit in the possession or production of the marijuana. Because MURLEY and GWIZD are involved in drug trafficking it is entirely possible that they were in fact involved in the marijuana together but I cannot not draw this inference from the available evidence and satisfy myself of his guilt. In this circumstances I am obligated to resolve any doubt in favour of MURLEY. He will be acquitted of count 8.

Seizure: Apartment at 2575 Danforth

[95] The prosecution theory advanced in counts 6 and 7 is that JUPITER possessed the drugs found in the fridge at 2575 Danforth. The prosecution theory is that the drugs found in combination with the following items supports possession for the purpose of trafficking: debt list, plastic packaging, and three digital scales. As the prosecution properly concedes, there is no direct evidence that JUPITER lived or inhabited the particular apartment at 2575 Danforth. The Court must assess the circumstantial evidence linking JUPITER to the particular apartment prior to moving on to the issue of possession, and possession for the purpose of trafficking.

[96] The following relevant circumstantial evidence is probative of JUPITER having some connection to the apartment at 2575 Danforth:

1. Documents and identification of JUPITER found within the apartment;

2. On one occasion JUPITER is observed leaving the front door of 2575 Danforth June 26 9:03 PM with a (what is ultimately seized) black dufflebag with personal toiletries items; and,

3. A scale found in JUPITER'S duffle bag has a scale with cocaine and other substances. – tested by Health Canada and tested positive for cocaine residue.

[97] In a circumstantial case, the Court must consider evidence or the lack of evidence. I have considered the following:

1. The documents found provide some evidence that JUPITER was present in the apartment. But this evidence is weakened by the fact that the location of the seized documents was not specifically noted by the police. In addition, there were other documents in bedroom number two that were not seized or photographed according to the evidence. As such, I have received evidence of a sample of what was present and cannot place the sample in context of all the available documentation.

2. The drugs were well hidden in fake pop cans in the fridge. The drugs were not openly accessible or viewable. They might not be detected by someone who opened the fridge.

3. Siobhan MURLEY is a resident. She is found there at the time of the search warrant and has provided a statutory declaration claiming no knowledge of the drugs in the very small apartment.

4. I do not know who rents, leases, or is empowered to permit entry to the apartment (e.g. evidence from the superintendent from the building).

5. I do not know what relationship exists between Siobhan MURLEY and Isan MURLEY or JUPITER.

6. I do not know whether the keys seized in the apartment grant access to the apartment.

[98] Possession requires that the evidence demonstrate control over the drugs, not simply the location or residence where the drugs are found. I have a doubt on this issue and that doubt has to be resolved in favour of the accused.

[99] Even if I have erred in my analysis with respect to possession, there are two reasons why I would not find that JUPITER possessed for the purpose of trafficking in any event.

[100] First, the expert opinion of Staff Sgt. Gillis was that due to the small quantities he would conservatively default to a conclusion that they were for personal use but for assumptions he relied upon including: (1) The absence of evidence consistent with personal use; (2) That there was one person responsible for trafficking; and (3) That the single drug trafficker possessed all the instruments of drug trafficking including the debt list in the satchel bag.

[101] The first assumption is available on the evidence. The second and third assumptions I do not accept as there are other available inferences grounded in fact. It is unknown who had access or could grant access to the apartment. The facts do not support a singular inference – that there was only one trafficker. It is also possible on the facts to argue that the drugs were personal use.

[102] Finally, although not argued by counsel in this trial, there is important evidence when one reviews the debt list found in the satchel bag in the apartment and the debt list found in the front passenger floor area of the Toyota Echo where MURLEY was sitting when the police stopped the vehicle. Both debt lists contain lists of customer names, quantities of drugs provided, and whether money is owed or not. A review of both exhibits discloses many common names (e.g. Missy, Misty, Pat, Steve) written down in groupings together. While these are common first names, I must rhetorically ask myself what is the preponderance of the probability that several names are written down, grouped more or less together, on two different debt lists, seized from different locations. It is reasonable to draw a conclusion that the two debt lists are linked. It is also reasonable to infer that the satchel bag containing the debt list in the apartment is linked to MURLEY rather than JUPITER. I have not forgotten the police surveillance evidence of MURLEY coming out of 2575 Danforth with a black satchel on another date.

[103] The prosecution needs to establish some control over the actual drugs in the apartment as opposed to simply some control over the apartment (R v Masters, [2014] O.J. No 3463(QL) at paras 23-24 (Ont.CA); R v Bertucci, [2002] O.J. No. 3870 (QL) at para 20 (OntCA)). Notwithstanding the able and detailed submissions of the prosecution on this point, the circumstantial evidence is insufficient (R v Escoffery, [1996] O.J. No. 1106 (QL)(OntCA)). While the actions and possessions of JUPITER are highly suspicious, I find that I have some doubt as to possession and consequently some doubt as to possession for the purpose of trafficking.

[104] Isan JUPITER is acquitted of counts 5 and 6.

Seizure: Traffic Stop in relation to Toyota Echo

[105] MURLEY and JUPITER are alleged to have jointly committed two offences (along with GWIZD) arising out of a traffic stop on June 26, 2013 in Bracebridge, Ontario. The first offence is possession of 61.7 grams of cocaine for the purpose of trafficking (count 3). The second offence is possession of marihuana (count 4). JUPITER admits possession of cannabis resin in an amount exceeding one gram. He will be found guilty of count 5.

[106] The prosecution theory is that the three men were together for a common purpose. The three men were travelling to a location, with a debt list, a scale that tested positive for cocaine, and 61.7 grams of cocaine for the purpose of trafficking.

[107] I have already found that GWIZD and MURLEY were involved in the trafficking of cocaine on May 30th and 95 Baldwin figured significantly in that offence. I have also found that MURLEY participated in a joint enterprise with CAIRNS and others to distribute cocaine in the Durham region. I have concluded that 95 Baldwin was a drug production facility and that MURLEY sourced cocaine from that location to supply CAIRNS. GWIZD was involved as the producer of illegal drugs, being a custodian over illegal drugs, or both.

[108] On June 26, the Toyota Echo vehicle was in the possession of GWIZD. Both GWIZD and MURLEY were together at 95 Baldwin on June 26th. At 19:10 HRS MURLEY is observed on site. MURLEY and GWIZD leave 95 Baldwin at 19:53 HRS. So for at least 45 minutes MURLEY was within the residence and it is a reasonable inference that they had access to GWIZD'S apartment in the basement while they were there together. The Toyota Echo was at 95 Baldwin within the control of GWIZD and MURLEY. GWIZD drove the Toyota Echo that day, it belonged to him, and he had the keys to the vehicle in his possession when stopped by the OPP.

[109] I cannot resolve how or when the cocaine was placed under the hood of GWIZD'S car. Certainly MURLEY was observed outside with a box in the early afternoon but there is no direct evidence of his contact with the hood. It could be that when GWIZD later drove the car down Kelvin Avenue in Toronto and they were out of sight of the police for a few minutes the cocaine was secreted then. It could be that GWIZD secured the cocaine under the hood at 95 Baldwin. It could be both. The cocaine under the hood is packaged in separate packages. The police could not keep the Toyota Echo under constant surveillance. There would have been no real reason at the time for the police to closely observe the hood of the Toyota Echo. There is no direct evidence on point.

[110] I have examined the photographs of the positioning of the cocaine under the hood. There is nothing elaborate about the method by which the cocaine was secured to the interior of the engine area. It would not take a significant length of time to raise the hood of the car and secure the plastic bag inside. While I have no evidence from a car mechanic, I believe that it is a common sense inference that the cocaine was not hanging in the position portrayed by the photos for a lengthy period of time. The heat from the car engine and a plastic bag will not co-exist for a length period of time. I believe that this is a temporary storage area designed to escape detection if stopped by the police. In the end, it is also possible that GWIZD, MURLEY or JUPITER placed the cocaine under the hood when the police were not in a position to see.

[111] I find that MURLEY and GWIZD had a common intention to traffic in cocaine. The close association of these two individuals in the production of cocaine is clear beyond a reasonable doubt. The question remains what is the involvement of JUPITER?

[112] I have thoroughly examined and considered the submissions made by the prosecution contained in chart entitled "Jupiter Connection to 249-358-3473" filed as part of written submissions in this case. I accept the circumstantial inferences drawn as it pertains to who had possession of which cellphone.

[113] I have considered as well that JUPITER had a number of cellphone related documents in his dufflebag. These documents are interesting because they display several different phone numbers and relevant registration information for persons such as "bat man", "john smith", "black jack", and "Emily Smart" at various addresses. There would be no innocent purpose to possess such things and a really good reason to possess several cellphones registration information – to facilitate the use of several different cellphones.

[114] A review of the submission chart entitled "Jupiter Connection to 249-358-3473" powerfully organizes and displays the relevance of the phone that I find JUPITER had in his possession. First of all, JUPITER had a saved electronic contact for BARDOWELL and GWIZD in that phone. The sequence of texts and phone contact amongst BARDOWELL, GWIZD, JUPITER, and MURLEY is consistent with JUPITER coordinating contact with GWIZD and MURLEY. It is also interesting to see the intermediary role BARDOWELL plays between MURLEY and JUPITER. This is reminiscent of his role as between CAIRNS and MURLEY in May 2013. These observations satisfy me that the cellphone 249-358-3473 is associated with JUPITER on this date in that he had it in his possession long before the traffic stop.

[115] The sequence of events is consistent with JUPITER coordinating his passage in the vehicle. The text messages to "NEV" make it clear that there are persons awaiting their arrival at their destination and that a motel or hotel room has been secured. There are a number of significant observations to make about the text messages to "NEV". First of all, simply, these communications are between JUPITER and "NEV". There is no evidence of communications between "NEV" and GWIZD or "NEV" and MURLEY. Second of all, these communications commence long before JUPITER is picked up at 9:02 PM from 2575 Danforth. It is clear that JUPITER is the organizing partner. He is the one coordinating with "NEV". He is the one communicating about the room. It is interesting that JUPITER requires identification from "NEV" to rent the room although he has it covered (i.e. he will pay for it). It is also interesting that JUPITER does not disclose the location of the hotel room. At 1:22 PM "NEV" asks where the hotel room will be and indicates an intention to meet there. JUPITER responds that he will let "NEV" know when he is close. Finally, it is still even more interesting that JUPITER indicates that "Ya I usually dnnt even give out the arrival time".

[116] When drawing inferences from facts context is incredibly important. The trip, the individuals involved, and the large amount of cocaine for the purpose of trafficking secreted under the hood of the car is a trip begging an explanation. If I had evidence of some purpose for this trip (e.g., visiting family, an outing, or a special event) perhaps an innocent context would be clear.

[117] When you add this necessary context to the findings I have already made with respect to JUPITER and his involvement in this trip, there is a significant inference to draw that the three individuals had a common intention.

[118] I believe that the objective reasonable person, possessed of all of the evidence in this case, would question why there would be a trip from a drug production facility at 95 Baldwin, to a location where drugs are also found 2575 Danforth, only to travel north to an undisclosed location, to stay at an motel or hotel that the greeting party "NEV" cannot know until they are closer. Finally, people are going to be disappointed that they are late.

[119] In the car, JUPITER had in his duffle bag a scale that tested positive for cocaine and other substances that I find is consistent with the mixing of cocaine with other substances for the purpose of trafficking. MURLEY had a debt list at his feet. This debt list is consistent with the debt list at 2575 Danforth as I have already explained. GWIZD is the driver, the producer, or both. Finally, there is a large amount of cocaine under the hood of the car.

[120] Let me be crystal clear, there is no evidence to suggest JUPITER's involvement prior to this date. There are no intercepted communications related to JUPITER. There is no evidence of him associating with MURLEY related to the trafficking activities on May 30th and June 18th. JUPITER was not connected to the Toyota Echo until approximately 9:00 PM on June 26th, 2013. I acknowledge that JUPITER is not seen at 95 Baldwin and I am not making a finding that he was part of the common purpose with CAIRNS in May 2013. JUPITER was not picked up in this investigation until his involvement with this trip. Nonetheless, I am satisfied beyond a reasonable doubt that JUPITER was a part of the joint enterprise with MURLEY and GWIZD to traffic in cocaine. As a result I find that he also possessed the cocaine under the hood of the car for the purpose of trafficking.

[121] MURLEY and JUPITER will be found guilty of count 3.

[122] With respect to count 4, the possession of marihuana I have a doubt and it must be resolved in favour of both MURLEY and JUPITER. I have already explained why there is a significant connection between GWIZD and the production of marihuana. I have also explained why I do not believe there is sufficient evidence to implicate MURLEY in that production. While MURLEY was a passenger in the car and the marihuana was within sight, the car belongs to GWIZD and I am not satisfied beyond a reasonable doubt that MURLEY possessed the marijuana in law. JUPITER was in the back seat of the car and I do not believe he possessed the marihuana in law.

Reasonable Doubt, Inferences, Circumstantial Evidence

[123] A reasonable doubt is based on reason, common sense, and is logically connected to the evidence or absence of evidence. A predominant feature of the submissions in this case involve circumstantial evidence and inferences. Counsel for MURLEY and JUPITER have suggested alternative available inferences. It is axiomatic that the Crown must prove the essential elements of an offence. I have instructed myself that the prosecution need not prove every fact beyond a reasonable doubt (Cote v The King, [1941] S.C.J. No 49 (QL)) and need not negative every alternative or speculative submission (R v Paul, [1975] S.C.J. No 114(QL)). Where I have drawn an inference, I have sought to source it in available facts, logical conclusions, or reasonable conclusions based on the facts. Where that objective basis is lacking (for example the alleged link between MURLEY and the marijuana in the basement at 95 Baldwin) I have resisted drawing an inference.

[124] In the end, when I consider the entirety of the evidence in this case, if I am to find guilt, I must be satisfied that guilt is the only rational inference to be drawn from the evidence (R v Griffin, 2009 SCC 28, [2009] S.C.J. No. 28(QL)).

[125] I am indebted to all counsel, having had the benefit of their hard work, organization, and extensive detailed focused submissions.

[126] For the benefit of clarity on the record I will restate my decision in summary:

[127] Count 1, Isan Ricardo MURLEY – Guilty

[128] Count 2, Isan Ricardo MURLEY – Guilty

[129] Count 3, Isan Ricardo MURLEY and Isan Danjuma JUPITER – Guilty

[130] Count 4, Isan Ricardo MURLEY and Isan Danjuma JUPITER – Not Guilty

[131] Count 5, Isan Danjuma JUPITER – Guilty

[132] Count 6, Isan Danjuma JUPITER – Not Guilty

[133] Count 7, Isan Danjuma JUPITER – Not Guilty

[134] Count 8, Isan Ricardo MURLEY – Not Guilty, Michael Wigglesworth – Withdrawn

[135] Count 9, Isan Ricardo MURLEY – Not Guilty, Michael Wigglesworth – Withdrawn

Released: February 4, 2015

Signed: Justice Felix