ONTARIO COURT OF JUSTICE

Date: June 13, 2016

Court File Nos.: 13-12774, 13-11230, 14-2751

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DRAGO JANKOVIC AND SALVATORE FORMUSA

Before: Justice P. F. Band

Reasons respecting Directed Verdict Applications

Released on: June 13, 2016

COUNSEL

Mr. C. Walsh — counsel for the D.P.P.

Mr. G. Sternberg — counsel for the accused Mr. Jankovic

Mr. P. Cooper — counsel for the accused Mr. Formusa

BAND J.:

I. INTRODUCTION & ISSUES

[1] The accused, Drago Jankovic and Salvatore Formusa applied for directed verdicts of acquittals in October 2015. At the time, I reserved my rulings. The following are my reasons for allowing Mr. Jankovic's application and dismissing Mr. Formusa's.

[2] On August 10, 2013, a shipping container containing tire changing machines arrived at the port of Halifax from Panama. Canadian Border Services Agency ("CBSA") investigators found a total of approximately 50 kg of cocaine secreted inside the metal legs of some of the tire changing machines, which had then been put back together with a false weld.

[3] The RCMP received information about the shipment from the CBSA, and began an investigation. In addition to standard steps, the investigation included surveillance, intercepts of Mr. Formusa's cell phone, search warrants and a "controlled delivery" of the shipment to a warehouse in Vaughan, Ontario. Audio probes had also been inserted into the shipment.

[4] The container arrived at the warehouse on Sunday, August 25, 2013. That afternoon, Salvatore Formusa and Richard Avanes arrived in a Toyota together. They began unloading the container. The forklift they were using ran out of propane. They were arrested as they were walking out of the warehouse, apparently on their way to refill the tank, which Mr. Formusa was holding.

[5] While they had unloaded a number of crates from the container, they had not yet opened any of them.

[6] Drago Jankovic was arrested approximately three weeks later.

[7] Mr. Formusa and Mr. Avanes were charged with the following offences:

• Importation of cocaine
• Possession of cocaine for the purpose of trafficking
• Conspiracy to import cocaine
• Conspiracy to possess cocaine for the purpose of trafficking

[8] Mr. Jankovic was charged with the following offences:

• Importation of cocaine
• Conspiracy to import cocaine
• Conspiracy to possess cocaine for the purpose of trafficking

[9] Mid-trial, Mr. Avanes' matters were resolved in another court and the prosecution against him before me was discontinued.

[10] Throughout the trial and in his submissions on the application, Mr. Cooper stated that the issue is whether Mr. Formusa knew that the shipment contained cocaine. That element is common to all of the offences Mr. Formusa faces. Mr. Cooper submits that the Crown's evidence as to that element is insufficient to allow a reasonable jury, properly instructed, to return a verdict of guilty.

[11] On behalf of Mr. Jankovic, Mr. Sternberg submits that the evidence is insufficient to establish that Mr. Jankovic was a participant in any of the offences or that he knew that a controlled substance was involved.

[12] The parties agree that the case against both accused is circumstantial. There is no direct evidence that they knew the shipment contained a controlled substance.

II. RELEVANT RULINGS TO DATE

[13] During the course of the trial, I made three evidentiary rulings that are relevant to the directed verdict applications. They concerned the admissibility of the contents of two Blackberry smart phones that were seized from Mr. Avanes following his arrest, CBSA "travel documents" pertaining to a Drago Jankovic, and Mr. Formusa's statements to police.

[14] Among the contents of Mr. Avanes' Blackberries were photographs, contact lists with phone numbers, phone call logs and the substance of SMS text messages and Blackberry "PINs" (an instant messaging system that allows users to send each other typed messages which employs each device's unique PIN). I ruled that they were admissible. My reasons for doing so can be found at [2015] O.J. No. 5618.

[15] The "travel documents" revealed that a Drago Jankovic arrived at Pearson International Airport ("Pearson") on a flight from Amsterdam on the evening of August 23, 2013. I ruled that those documents were admissible, with reasons to follow. Those reasons will be released at the same time as these ones.

[16] I ruled that Mr. Formusa's statements to police had been given voluntarily. My reasons will follow in due course.

III. ADMISSIONS AND AGREEMENTS OF THE PARTIES

[17] Throughout the trial, the parties indicated a number of agreements and concessions. They include:

• The substance found in the shipment is cocaine.
• Its value is estimated at approximately $2,000,000.
• The voices heard on the intercepts and attributed to Mr. Formusa and Mr. Avanes are theirs.
• The Toyota seen at the warehouse on August 25 and other locations is Mr. Avanes'.
• The expertise of Sgt. Scarlett, who gave opinion evidence about fingerprint analysis.
• Evidence obtained through production orders for cell phone records was admissible.

IV. APPLICABLE LEGAL PRINCIPLES

A. The Offences of Conspiracy, Importing and Possession for the Purpose of Trafficking

[18] In R. v. Carter, the Supreme Court explained the offence of conspiracy and provided a three step approach to the co-conspirators' exception to the rule against hearsay ("the hearsay exception").

[19] The essence of the offence of conspiracy is proof of an agreement between the alleged parties to the conspiracy. It is not necessary that the object of the conspiracy be carried out, but only that the parties made an agreement to do it. To convict a defendant of conspiracy, a trier of fact must be satisfied beyond a reasonable doubt that: 1) the alleged conspiracy existed; and 2) that the defendant was a member of it.

[20] Knowledge and acts in furtherance of a criminal scheme do provide evidence, particularly where they co-exist, from which the existence of an agreement may be inferred.

[21] The mens rea that must be proved is the intention to enter into the agreement and to put the common design into effect.

[22] The hearsay exception was restated in R. v. Barrow as follows:

1. The trier of fact must first be satisfied beyond reasonable doubt that the alleged conspiracy in fact existed.

2. If the alleged conspiracy is found to exist then the trier of fact must review all 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.

3. If the trier of fact concludes on a balance of probabilities that the accused is a member of the conspiracy then [the trier] must go on and decide whether the Crown has established such membership beyond reasonable doubt. In this last step only, the trier of fact can apply the hearsay exception and consider evidence of acts and declarations of co-conspirators done in furtherance of the object of the conspiracy as evidence against the accused on the issue of his guilt.

[23] Importing a controlled drug requires that the defendant know that the substance at issue is a controlled drug, and that the defendant bring it, or cause it to be brought, into the country.

[24] Possession of a controlled substance for the purpose of trafficking requires that the defendant know that the substance at issue is a controlled drug, and that the defendant possess the substance for the purpose of trafficking, as defined in s. 2(1) of the Controlled Drugs and Substances Act.

[25] Importing and possession for the purpose of trafficking both require knowledge that the substance at issue is a controlled drug; however, it is not necessary that the defendant know what specific controlled drug it is. As a result, it is also required for conspiracy to commit those offences that the defendant know that the substance at issue is a controlled drug.

B. The Law of Possession

[26] The cocaine was not found in Mr. Jankovic's physical and actual possession. As result, the definition of possession in ss. 4(3) of the Criminal Code is applicable. It reads:

For the purposes of this Act,

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

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

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

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

[27] In R. v. Anderson-Wilson, Justice Hill set out a number of principles relating to the law of possession, including the following:

• Proof of possession requires the Crown to establish the two distinct elements of knowledge and control;

• Control refers to power or authority over the item whether exercised or not;

• In order to prove possession, the prosecution may establish actual or personal possession by an accused or possession as described in s. 4(3)(a)(i)(ii) of the Code;

• In other cases, the Crown may seek to prove constructive or attributed possession as defined in s. 4(3)(b) of the Code;

• In order to constitute joint possession pursuant to s. 4(3)(b) there must be knowledge, consent and a measure of control on the part of the person deemed to be in possession;

• In crimes of unlawful possession, it is "not necessary for the prosecution to prove the required knowledge by direct evidence ... it could be inferred from the surrounding circumstances";

• Frequently then, such cases are proven by circumstantial evidence; and

• Possession cases are fact-driven inquiries.

C. Modes of Participation in a Criminal Offence

[28] As the Supreme Court of Canada explained in R. v. Briscoe, Canadian criminal law does not distinguish between the principal offender and parties to an offence in determining criminal liability. Section 21(1) of the Criminal Code makes perpetrators, aiders and abettors equally liable. It reads:

Every one is a party to an offence who

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

[29] The Court went on to explain party liability as follows [some passages and citations omitted]:

The actus reus of aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence.

While it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one. Broadly speaking, "[t]o aid under s. 21(1) (b) means to assist or help the actor. . . . To abet within the meaning of s. 21(1) (c) includes encouraging, instigating, promoting or procuring the crime to be committed. …."

The aider or abettor must also have the requisite mental state or mens rea. Specifically, in the words of s. 21(1) (b), the person must have rendered the assistance for the purpose of aiding the principal offender to commit the crime.

The mens rea requirement reflected in the word "purpose" under s. 21(1)(b) has two components: intent and knowledge. For the intent component, it was settled in R. v. Hibbert, [1995] 2 S.C.R. 973, that "purpose" in s. 21(1) (b) should be understood as essentially synonymous with "intention". The Crown must prove that the accused intended to assist the principal in the commission of the offence. …

As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed.

[30] There can be more than one perpetrator, or principal, for purposes of s. 21(1) (a).

D. The Test for a Directed Verdict in a Circumstantial Case

[31] The Shephard test, which governs at a preliminary inquiry, also applies to a directed verdict application. The question is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. Where there is any admissible evidence which could, if it were believed, result in a conviction, the preliminary inquiry judge must commit the accused for trial.

[32] In R. v. Charemski, the Supreme Court of Canada elaborated on the meaning of the phrase "sufficient evidence" at para. 35. It means evidence sufficient to sustain a verdict beyond a reasonable doubt. The concept of sufficiency "always relates to the goal or threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case."

[33] The test does not change where a case depends on circumstantial evidence. However, in such a case, the judge must engage in a limited weighing of the circumstantial evidence. In R. v. Arcuri, at para. 23, the Chief Justice explained this process as follows [certain citations omitted]:

The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed….The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

[34] At this stage, the inferences sought by the Crown need not be compelling or easily drawn; however, they must be reasonably based on the evidence and they must be reasonable. To do so, they must flow logically from a fact or group of facts established in the evidence. Whether the inference is a reasonable one to draw usually involves an application of "human experience and common sense." However, conjecture and speculation are prohibited.

E. Directed Verdict Applications in the Context of Charges of Conspiracy

[35] In R. v. Rojas, Justice Watt, as he then was, explained how to apply the Shephard test to allegations of conspiracy.

[36] His Honour explained that, at a preliminary inquiry, the judge need only be satisfied that the first two steps of the Carter test are met. That is, whether "there is any evidence upon the basis of which a reasonable jury, properly instructed, could find: (i) that the conspiracy alleged existed, and (ii) that the accused was a member of the conspiracy." In other words, "where there is some evidence of the defendant's membership in the conspiracy, the prosecutor's burden has been met." His Honour added that the preliminary inquiry judge is not to consider evidence that would be rendered admissible by virtue of the co-conspirators' exception to the hearsay rule.

[37] While only evidence directly implicating an accused is to be considered in determining whether he or she was probably a member of the alleged conspiracy, that evidence must not be viewed in isolation. Rather, it should be viewed in light of all the circumstances. It is therefore permissible to consider it in the context of the acts of other alleged members of the conspiracy, which may be hearsay.

V. THE EVIDENCE

[38] The evidence in this case is voluminous. I heard from 29 witnesses and received exhibits containing thousands of pages of information and numerous intercepted communications.

[39] It provides a strong basis upon which a reasonable jury, properly instructed, could infer the existence of an agreement between at least Mr. Formusa and Mr. Avanes – and possibly others – to import the shipment of tools from Panama. Likewise, the evidence shows that Mr. Formusa was in significant control of that shipment until the time he and Mr. Avanes took possession of it, and were arrested.

[40] Mr. Cooper does not appear to dispute this. The question is whether the evidence reasonably permits an inference that Mr. Formusa knew that the shipment contained a controlled substance.

[41] Nonetheless, a relatively thorough review of the evidence is important. It will provide the proper context in which to consider the question of Mr. Formusa's knowledge. It will also permit a contextual review of the evidence that is directly admissible against Mr. Jankovic.

A. The Shipment

[42] In the summer of 2013, Mr. Formusa caused a quantity of tire changing machines to be shipped from Panama to Canada by an international company called ZIM. The exporter is a company called UYUSTOOLS. According to ZIM, Mr. Formusa was the consignee, and his address was 55 Plywood Place, Etobicoke.

[43] In the relevant period, Mr. Formusa lived in a trailer behind 55 Plywood Place, Etobicoke, a cold storage facility where Mr. Formusa worked. Mr. Formusa's driver's license is associated with 2224 Rambo Road, Mississauga, which is his brother's home.

[44] In May 2013, Mr. Formusa caused a numbered company to be created. The articles of incorporation list him as its first director with an address of 2224 Rambo Road. The company's registered office address is 55 Plywood Place. There is no mention of a name under which the company was said to be carrying on business.

[45] In July 2013, Mr. Formusa engaged the services of Willson International ("Willson"), a provider of customs brokerage services, through one of its sales staff, Paul Badger. Mr. Formusa opened the account using the numbered company. The account was set up based on one single invoice. This was not normal. The invoice that Mr. Formusa provided was in Spanish. It had to be translated into English for Customs purposes.

[46] The numbered company had not had a prior importing license or credit history. This meant that Mr. Formusa might have to provide a sum of money up front. He said that would be fine.

[47] The shipment was to be delivered to 55 Plywood Place.

[48] For a number of days after its arrival on August 10, the container was detained in Halifax as CBSA officers removed, analyzed and replaced its contents. CBSA officers explained that to open the wooden crates, one needed only to bend some metal tabs and that this was not difficult.

[49] That CBSA inspection generated fees payable by Mr. Formusa. Willson advised him of this, and sent him the invoice by email on August 14 to supersal57@gmail.com. That email also contained an invoice that Willson had received from Carolina Jiminez, a ZIM employee.

[50] Mr. Formusa told Willson he would take care of it. He also told them that he wanted the container delivered as soon as possible and that he wanted the delivery address changed because the customer was in a rush for the delivery. He said he wanted the shipment sent directly to the customer. By email dated August 17, he requested that the shipment be redirected to 100 Bass Pro Mills in Vaughan. He indicated that the customer was Drago Motors.

[51] Mr. Formusa contacted Willson frequently between August 14 and the date of delivery. Willson employees testified that this is normal when a customer is waiting for a delivery. He also arranged for the shipment to be delivered on August 25, which was a Sunday. Sunday deliveries can lead to additional charges. It is not unusual for Willson's clients to ask for this and accept additional charges.

[52] Unit 34, 100 Bass Pro Mills is a warehouse. It had a sign on it that read Napa Valley Trim. The windows were covered. One could not see in or out.

[53] The shipment was delivered to Unit 34, 100 Bass Pro Mills on Sunday, August 25 by TMT, a trucking company. Conversations between TMT and Mr. Formusa arranging for delivery, up to the morning of, were intercepted.

[54] On August 25, the RCMP observed the container en route to, and arriving at, 100 Bass Pro Mills. From their position, they could not see it being placed into Unit 34 or who signed for it.

[55] Mr. Formusa and Mr. Avanes arrived at 100 Bass Pro Mills together, in Mr. Avanes' car, shortly after 4 p.m. Shortly after 5:00 p.m., Mr. Formusa and Mr. Avanes were arrested as they left Unit 34. Mr. Formusa was carrying the forklift's propane tank.

[56] On the recordings from the audio probes, one can hear broken up snippets of two male voices speaking. There is a lot of noise, including a beeping sound believed to be made by the forklift. A water bottle that was seized from the forklift bears a print that, according to an RCMP expert, belongs to Mr. Formusa.

[57] When police entered Unit 34, they observed that the ZIM container was open and that some of the crates and boxes had been removed from it. None of the crates or boxes had been opened. They also saw tools on the floor, including a screwdriver, bolt cutter, pliers and two hammers.

[58] Police also found evidence of a prior shipment containing similar tire changing machines. One of them was missing a leg.

[59] When police opened one of the crates associated with the prior shipment, they found a Ziploc bag with traces of a white powdery substance in it. It later tested as cocaine. A fingerprint found on the bag was later identified as belonging to Mr. Avanes.

[60] Mr. Formusa is not alleged to have any connection with that prior shipment.

B. Surveillance of Formusa and Avanes

[61] Assisted by information gleaned from the intercepts of Mr. Formusa's cell phone, police conducted surveillance of Mr. Formusa and Mr. Avanes in the days leading up to the controlled delivery. On Saturday, August 24 (the eve of the delivery) they saw the two men sitting at a table at a restaurant called Calce's Fine Foods between 2:53 and 3:00 p.m.

C. Searches of Avanes' Wallet, Car and Apartment and of Formusa's Trailer

(i) Mr. Avanes' Wallet and Car

[62] Incident to arrest, police searched Mr. Avanes' person and his car at 100 Bass Pro Mills. In his wallet, they found a Panama Consulate General card, a torn piece of paper with Willson salesman Paul Badger's name on it, a piece of paper with 100 Bass Pro Mills written on it and a TMT freight receipt that mentioned Drago Motors.

[63] In his car, they found a print out of an email that referred to a ZIM container.

(ii) Mr. Avanes' Apartment – Unit 1403 - 6200 Bathurst Street, North York

[64] There is considerable evidence that Mr. Avanes occupied unit 1403 – 6200 Bathurst Street. Police saw him pulling into the driveway on August 24. His cellphone records are associated with that address. Among the items seized during the ensuing search are a number of passports as well as tax and banking documents in his name.

[65] Particularly relevant to the charges are the following:

• A red notebook containing the email address supersal57@gmail.com
• A UYUSTOOLS invoice from Panama
• Shipping and exporting documents referencing Panama and Canada
• Documents referencing tires (some in Spanish)
• $8,075 in US cash
• A copy of the bill of lading for the shipment found on his laptop
• A folder with the same banking information as that found in Mr. Formusa's trailer and in his credit application with Willson

(iii) Mr. Formusa's Trailer – 55 Plywood Place

[66] Police found a number of documents connecting Mr. Formusa to the importation in his trailer. These included:

• Documents concerning the ZIM container
• Willson documents
• A handwritten note to Willson dated July 23, 2013
• A UYUSTOOLS invoice
• ZIM documents
• An email from Carolina Jiminez concerning shipping charges
• Banking documents relating to the ZIM container

D. "PIN" Messages from Avanes' Blackberries

[67] On August 11, Mr. Avanes' Blackberry sends a PIN message to an unknown person indicating that the sender has learned from a "lui" that "there are 50 girls, not 20." The other person makes reference to a "tall guy" and expresses distrust in "lui." From Mr. Avanes' Blackberry, a message is sent asking that person to "buzz Sal."

[68] A print out of various BBM PIN exchanges between Mr. Avanes' Blackberry and a number of others, in Spanish, between August 6 and August 25 was filed as Exhibit 60. The document includes translations into English. The parties agreed that unless specific mention is made of "Sal", the messages do not involve Mr. Formusa.

[69] The sender from Mr. Avanes' Blackberry has the nickname "Tio". In some of the earlier messages Tio expresses a reluctance to "talk here." "Sal" is referenced, as is a "tall guy." On August 14, Tio sends a message referencing "Panama and the village." On August 15, an unknown person tells Tio "…just here waiting for your instruction on those things I need to take." On August 22, Tio tells an unknown person "but we are almost all good also regarding that other thing." On August 24, a Ricardo Fernandez asks Tio "Sir. What happened?" Tio responds "I'm here waiting for an answer Sir!!!" On August 25, Ricardo Fernandez asks Tio "Hello Sir, what happened?"

[70] On August 25, at approximately 3:23 p.m., Tio sends messages to a Migrana saying "Brother everything is all good" and "Open the bottleee." Migrana asks "what do you mean" and Tio responds "already brother; alreadyyyy" and "They brought me the girls and they are already sleeping in the room." Migrana replies "that's awesome brother."

VI. EVIDENCE THAT JANKOVIC IS ASSOCIATED WITH FORMUSA AND AVANES

[71] Mr. Jankovic is never observed at 100 Bass Pro Mills or otherwise in the company of either Mr. Formusa or Mr. Avanes.

[72] The Crown's evidence of "identity" concerning Mr. Jankovic is circumstantial. It rests on the production orders, which associate a particular phone number with a Drago Jankovic, some intercepted communications, the travel histories concerning a Drago Jankovic and PC Cowan's voice recognition evidence.

[73] On August 23, Mr. Formusa speaks to a male with an Eastern European accent. That male tells him that he just arrived and is at the airport. The CBSA travel history documents show that a Drago Jankovic arrived at Pearson between 9:00 and 10:00 p.m. on that date.

[74] On August 26, a similar sounding male using the number associated with Mr. Jankovic tells a male at a number associated with Mr. Formusa's brother that he has just arrived from Europe "yesterday" and asks where "Sal" is.

[75] On August 29, PC Cowan and Sgt. Johnson attended an address believed to be Mr. Jankovic's. They left a business card asking that he call them. On September 10, Mr. Jankovic was arrested. He was interviewed by Sgt. Johnson for approximately one hour. PC Cowan monitored that interview in real time, from a different room.

[76] Mr. Jankovic was arrested and charged with the offences before the court on September 17. On that date, PC Cowan dealt with him directly for approximately one hour. He declined to give a statement and was released on conditions.

[77] In the days leading up to that date, PC Cowan spoke with a male at the number associated with Mr. Jankovic twice. She called him Mr. Jankovic. They had agreed that he would turn himself in on a particular date. On that date, they spoke and agreed to reschedule for September 17. On September 17, Mr. Jankovic turned himself in just as PC Cowan expected.

[78] PC Cowan estimated that she spent approximately 2.5 hours with Mr. Jankovic over four occasions. She testified that she came to be able to recognize his voice.

[79] She reviewed the intercepted calls during the investigation and again prior to testifying.

[80] She described the voice on the intercepts as a low, slow voice of a European, who could be Serbian, Yugoslavian or Czech.

[81] She described Mr. Jankovic's voice in person as deep, slow and accented.

[82] In my view, seen in its totality and in the context of all the circumstances, this evidence is more than sufficient to permit a reasonable jury, properly instructed, to draw an inference that the voice on the intercepts is that of the accused, Drago Jankovic. Likewise, a jury could reasonably infer that Mr. Jankovic was the person sending text messages from that phone. Therefore, I refer to him by name when discussing the intercepts below.

VII. COMMUNICATIONS BETWEEN FORMUSA, AVANES AND JANKOVIC

[83] The documentary evidence shows that numerous communications – be they text messages or phone calls – took place between numbers associated with Formusa, Avanes and Jankovic during the spring and summer of 2013. A fair reading of the evidence shows that the communications increased in frequency in the month of August. The increase is most pronounced as between Mr. Formusa and Mr. Avanes.

[84] Intercepted calls involving Mr. Formusa's line that took place between August 20 and 25 were presented in evidence. They involve communications with Mr. Avanes, Willson employees, TMT employees, Mr. Avanes, "Marta" (who is believed to be Mr. Avanes' girlfriend), Mr. Jankovic, and others. Mr. Formusa's brother's line was also the subject of an intercept, and two calls involving Mr. Jankovic were presented in evidence.

[85] Between August 20 and 25, over 50 text or voice communications between Mr. Formusa and Mr. Avanes were intercepted. While Mr. Formusa calls Mr. Avanes "Richard" on August 20, for the most part, they refer to each other as "brother." They arrange meetings at the trailer and other locations; they talk about the container; they talk about a "drag", a "drago" and also about a male without referring to him by name. As I discuss these communications below, unless I specify otherwise, I do not distinguish between text or voice communication.

• Wednesday, August 21

[86] Mr. Formusa tells Mr. Jankovic that the container was checked and put "to the back of the line." They agree to talk again and Mr. Jankovic asks Mr. Formusa to text him when he receives an email advising that the container is on the train.

[87] A short time later, Mr. Formusa tells Mr. Avanes "still waiting to leave Halifax."

• Thursday, August 22

[88] Mr. Formusa tells Mr. Avanes "cont on its way eta to. Late tomorrow." He then asks "do you want me to tex drag." Mr. Avanes says "yes let him know too" and Mr. Formusa does so. Mr. Jankovic says "ok see you tomorrow night."

[89] Later, Mr. Formusa speaks with Willson. They advise him of the additional charges to be paid on account of Canada Customs fees and brokerage. He asks them to email him the invoices. Mr. Formusa then tells Mr. Avanes "… must pay Wills asap 2818 for release. Be here at 2 pm." Mr. Avanes asks "how he wants de money cash?" Mr. Formusa says he will pay at a bank "or come to see to send payment wi print info from email."

[90] A short time later, Mr. Avanes tells Mr. Formusa "I'm here at the back" and Mr. Formusa says "ok see you in a sec."

[91] Mr. Formusa also speaks to Willson, who advises that the container is going to arrive the following day. They agree that delivery will not likely take place until Monday (August 26). He tells them that the "customer's waiting" and that he does not "want to hold them up another day more than we have to…the most important thing is it goes there, OK?"

[92] A short time later, Mr. Formusa asks Mr. Avanes to "come to the trailer."

[93] Later in the day, they agree to have coffee and food together at "Bernardo's" that evening.

• Friday, August 23

[94] In the morning, Willson advises Mr. Formusa that the container will arrive Saturday evening. They agree to have it delivered to 100 Bass Pro Mills on Sunday (August 25). Mr. Formusa confirms that the customer's name is Drago Motors. Willson asks him for the phone number and Mr. Formusa says "I'll get it to you…well, shortly."

[95] Mr. Formusa tells Mr. Jankovic that the "cont is coming to night." He then tells him that it "should be in TO hopefully tonight or first thing in the morning and they will let us know." He also says "shorty is coming down bc he must pay some money for the inspection and customs or they will not release." Mr. Jankovic asks him how much, and Mr. Formusa says he is expecting a fax shortly. Mr. Jankovic asks him to call him when he receives it. They then agree to meet that evening.

[96] Mr. Formusa then texts Mr. Avanes that the delivery will be on Sunday and that "Drag just called wants to see me 8 pm tonight." He explains that "told him not sure when coutn will arrive and you are waiting for invoice from wills for dutie charges and taxes so it can be reliest." Mr. Avanes says "perfect. I will see you before that." A short time later, Mr. Jankovic tells Mr. Formusa "see you around 8 ok?"

[97] At 12:46 p.m., Willson calls Mr. Formusa to inquire about the phone number. He says he will call them in five minutes from the office.

[98] At 1:09 p.m., Mr. Formusa sends the following text to Mr. Avanes: "they asked for a phone number for Drago Motors in Vaughan – should I give B.S. number?"

[99] Mr. Avanes tells him that he will provide him with a number later. Then, he tells him to give Willson his (Mr. Avanes') number.

[100] Mr. Formusa asks if he can meet with Mr. Avanes and Marta to have a talk. He then tells Mr. Avanes again that "drag" wants to meet at 8 p.m. Mr. Avanes and Mr. Formusa agree to meet before 8 p.m.

[101] Between 5:27 and 5:44 p.m., they talk about meeting at "Bernard." At 5:59 p.m., Mr. Formusa contacts "Marta" to ask her to tell Richard to call him. He says he needs a favour. Twice, he calls her "Bella."

[102] At 9:08 p.m., Mr. Avanes asks Mr. Formusa if he is coming, and says "don't eat please."

[103] At 9:25 p.m., Mr. Formusa speaks to Mr. Jankovic, who tells him he has just arrived and is at the airport. Mr. Formusa asks him "want to talk now or you…want to…." Mr. Jankovic asks "why not?" and Mr. Formusa says "ok, no I'm just sayin."

[104] Mr. Formusa tells Mr. Jankovic about the duties owing to Willson. He talks about another male, in the third person, and tells Mr. Jankovic that "he" will "take care of it." He asks Mr. Jankovic to call that male. Mr. Jankovic says "don't worry" and "everything is good, okay?"

[105] At 9:41 p.m., Mr. Formusa tells Mr. Avanes "Hi I just called drago he said just got at air port…". Mr. Avanes asks if Mr. Formusa gave "him" his phone number. Mr. Formusa says "I forgot but he did not ask but I told him taxes and duties were paid by you." They agree to see each other the next morning and Mr. Formusa says he will call "drago" before coming to see Mr. Avanes.

• Saturday, August 24

[106] At approximately 8:29 a.m., Mr. Avanes and Mr. Formusa have a conversation about the male who was at the airport the day before. Mr. Avanes says he wants to talk to him, to "see what is in his fucking head…" and asks Mr. Formusa what the male had told him. Mr. Formusa tells Mr. Avanes about the conversation he had the prior evening, and says "…I gotta you know, play a little stupid right?"

[107] Mr. Avanes says that he told that male's friend about the inspection and that since then, "they're even calling me not even once… what I told them to watch out they're fucking scared now, they're in a fucking wacko." Mr. Avanes says "I have to talk to him. I gonna call him…". He adds "but if he comes to you you don't know nothing much," and Mr. Formusa replies "No, I'm gonna play stupid."

[108] At 9:09 a.m., Mr. Jankovic tells Mr. Formusa he will be coming in half an hour. Mr. Formusa then tells Mr. Avanes that "he just called me he want to come see me in 45 mins." Mr. Avanes responds "Perfect tell him that everything looks ok and I paid the rest what we had to pay so Monday everything will be done." Mr. Avanes then texts Mr. Formusa "pls don't tell him anything about tomorrow."

[109] At 9:58 a.m., Mr. Avanes tells Mr. Formusa "he just called me" and "he says we have to pay that $2,800… so just tell him everything is OK." Mr. Formusa asks if he can show Mr. Jankovic "the thing" and Mr. Avanes tells him "yeah, show him tell him, look this is what I did and we're gonna send it to Willson, and that's it." Mr. Formusa confirms "just show him a copy, right?" and Mr. Avanes says "yeah yeah."

[110] At 12:54 p.m., Mr. Avanes tells the following to Mr. Formusa:

I just finished with him now. He called me; he says he's coming there… And then he's going to try to tell you to call the place that they can deliver today, tomorrow, but you tell him that you already spoke to them… because of the money order and shit, whatever, it's going to be Monday between nine to one o'clock they gonna deliver.

[111] They agree to meet at "Bernardo's place."

[112] At 12:55 p.m., Mr. Formusa tells Mr. Jankovic to "come to my trailer." Mr. Jankovic says he is almost there.

[113] At 1:55 p.m., Mr. Formusa tells Mr. Avanes that he (Mr. Formusa) is "almost there." Mr. Avanes says he will meet him there.

• Sunday, August 25

[114] At 7:39 on the morning of the delivery, Mr. Formusa speaks to a TMT driver to confirm the address and to tell him that people will be there to unload at 9 o'clock. He then tells Mr. Avanes that the delivery will be arriving around 9 o'clock. Mr. Avanes says he will "be there."

[115] At 10:10 a.m., the TMT driver tells Mr. Formusa that he is approximately 25 minutes away.

[116] At 10:35 a.m., Mr. Formusa tells Mr. Avanes that the driver just called him and should be there any time. Mr. Avanes tells him that "the guys are there. They called me; they said nothing is going on yet." Mr. Avanes tells Mr. Formusa that they will meet after Mr. Formusa is finished at work.

[117] Mr. Formusa and Mr. Jankovic have conversations about meeting as well.

[118] At 11:26 a.m., Mr. Avanes tells Mr. Formusa "they just called me; I told them to just close the doors and come… by one o'clock I'll see you."

[119] At 2:22 p.m., Mr. Formusa tells Mr. Avanes he has just left, and Mr. Avanes says "ok, see you very soon."

• Monday, August 26

[120] Mr. Jankovic asks Mr. Formusa's brother where Mr. Formusa is.

VIII. MR. FORMUSA'S STATEMENTS TO POLICE

[121] Mr. Formusa was interviewed by PC Cowan in two sittings during the evening of August 25. Of particular relevance to the issues before me are the following portions.

• Mr. Formusa first tells PC Cowan that he lives with his brother on Rambo Road and that he had gone from there to 55 Plywood Place in the morning.

• He later tells her that he did not go from Rambo Road. He has not slept there in several months. He has been living at 55 Plywood Place.

• He denies that the person he was with at 100 Bass Pro Mills is a friend of his.

• He knows him as "Richard" and that is all he knows.

• He met him once before.

• He was not at a restaurant with Mr. Avanes the previous night (Saturday, August 24).

• He did not see Mr. Avanes on Friday, August 23.

• He has only spoken to Richard once or twice.

• Police will not find evidence of more calls or text messages on Mr. Formusa's phone history.

• "Marta" is a customer who is not associated with Mr. Avanes.

• Someone asked him to help him unload some stuff and he was going to be paid for doing so.

• He does not know where the container came from.

• He does not know what is in the boxes.

IX. REASONABLE INFERENCES BASED ON THE EVIDENCE RE FORMUSA

A. Agreement between Mr. Formusa, Mr. Avanes (and Possibly Others)

[122] Taken in its totality, the evidence is reasonably capable of supporting the inference that Mr. Formusa, Mr. Avanes (and possibly others) entered into an agreement to import a shipment of tools from Panama. This is not controversial. Nonetheless, I would point to the following particular pieces of evidence.

• Mr. Formusa's direct role in creating a numbered company through which to import the shipment, in retaining Willson and in directing and redirecting the trajectory of the shipment to its final place of delivery.

• The familiarity that existed between Mr. Formusa and Mr. Avanes: they called each other "brother", Mr. Formusa knew "Marta's" phone number and called her "Bella".

• The comingling of shipment and banking-related documents found in the possession of Mr. Formusa and Mr. Avanes.

• The frequent communications between the two of them concerning the container and the additional fees assessed against it.

• The evidence suggesting that Mr. Avanes paid those fees.

• The meetings that were discussed or took place between the two of them at various locations in the period leading up to the delivery.

• Mr. Avanes arranged to have men attend 100 Bass Pro Mills to receive the container.

• They attended 100 Bass Pro Mills together to unload the container.

B. Evidence of Knowledge and Control

[123] The inference that Mr. Avanes knew of the contents of the shipment is almost irresistible, given the evidence of the prior shipment of similar machines and his fingerprint on the Ziploc bag containing traces of cocaine. Also logical and reasonable is the inference that his mention of "50 girls" on August 11 and his celebratory message referring to girls sleeping on August 25 were references to the 50 kg of cocaine.

[124] Likewise, a reasonable jury, properly instructed could draw the inference that Mr. Formusa knew that the shipment contained a controlled substance. Viewed in the context of the evidence as a whole, the most important aspects of the evidence are the following.

• The shipment was ordered before Mr. Formusa's numbered company was incorporated.

• The numbered company was a first time importer.

• Mr. Formusa was in control, albeit indirectly, of the shipment's trajectory.

• The amount of cocaine (50 kg) and its value (approximately $2,000,000) make it unlikely that it was entrusted to him without his knowledge.

• Mr. Formusa showed a reluctance to discuss matters with Mr. Jankovic on the phone.

• He redirected the shipment from his place of residence (the trailer) to a different destination (100 Bass Pro Mills) to which he had no apparent connection days before the delivery.

• He had access to Unit 34, 100 Bass Pro Mills, on August 25.

• He was in actual possession of the container and its contents when he and Mr. Avanes were unloading it.

• They were alone in doing so.

• The crates and boxes were not locked and could be opened with little difficulty.

• While the nature of the substance was never discussed in the intercepted communications between Mr. Avanes and Mr. Formusa, an inference that it was discussed on the way to 100 Bass Pro Mills, in the warehouse or at some time prior is available to a jury in all the circumstances. These include Mr. Avanes' celebratory message, which he sent some 40 minutes prior to their arrival in his car.

• Mr. Formusa's deceitful behaviour is also probative of knowledge. It includes:

  • asking Mr. Avanes whether he should give Willson a "B.S. number" for Drago Motors.
  • Telling Willson that the shipment should be sent directly to the customer (i.e. Drago Motors) at 100 Bass Pro Mills which is not Drago Motors.
  • Misleading Mr. Jankovic as to the arrival of the container in Toronto, the date on which it would finally be delivered and the payment of the additional fees.
  • Lying to PC Cowan about where he lived and had been on the morning of August 25.
  • Lying to PC Cowan about the extent of his association and communications with Mr. Avanes (and "Marta").
  • Lying to PC Cowan about his knowledge of the origins of the shipment.
  • Telling PC Cowan he did not know what the boxes contained.
  • Telling PC Cowan that someone had asked him to help unload the container and would pay him for doing so.

C. Possession for the Purpose of Trafficking

[125] While they did not concede it, Mr. Cooper and Mr. Sternberg did not appear to dispute a reasonable jury, properly instructed, to conclude that a person who possessed 50 kg of cocaine worth $2,000,000 would do so for the purpose of trafficking. This conclusion is both logical and irresistible.

[126] As a result, I find that there is sufficient evidence upon which a reasonable jury, properly instructed, could find that Mr. Formusa entered into a conspiracy to import cocaine and to possess it for the purposes of trafficking with Mr. Avanes and possibly others, and that he was in possession of cocaine for the purpose of trafficking.

X. THE EVIDENCE AGAINST JANKOVIC DOES NOT SATISFY SHEPHARD / ARCURI

[127] As I stated above, the evidence is capable of supporting the inference that Mr. Jankovic was associated with both Mr. Formusa and Mr. Avanes at the relevant times. There is also sufficient evidence to support the inference that Mr. Jankovic was aware of the container's arrival in Halifax, the subsequent delay and its attendant fees.

[128] The Crown rightly acknowledged that Mr. Jankovic appeared to be less involved than his co-accused. But he maintained that there is sufficient evidence to permit an inference that Mr. Jankovic knew of the object of the importation agreement and of its illicit contents. He argued that, when seen in the context of the entire transaction, the evidence shows that Mr. Jankovic knew that it was not a normal or legitimate business transaction. In particular, he focused on the following:

• Mr. Formusa was importing automotive machinery when he was not involved in that industry.

• There appeared to be no real "customer" - the initial destination for delivery was Mr. Formusa's trailer, located at his place of work.

• That place was a cold storage enterprise.

• Mr. Jankovic would have known this because there is evidence that he attended that location.

• When Mr. Formusa told him about the additional fees, Mr. Jankovic asked "how much money uh, we have to pay…" – the use of the second person plural pronoun suggests that Mr. Jankovic considered himself part of the importation rather than merely a customer.

• Mr. Jankovic and Mr. Formusa's meetings took place in the evenings and on weekends - not "normal customer relations."

[129] The Crown argues that the evidence directly admissible against Mr. Jankovic must be viewed in the broader context. In particular, the background of the importation and the evidence of the intercepted communications. While Mr. Formusa and Mr. Avanes talk about Mr. Jankovic, Drago Motors and whether or not to give Willson a "B.S. number for Drago Motors," it must be remembered that Mr. Jankovic was not privy to those communications. Also, there is simply no evidence upon which one could infer that Mr. Jankovic knew that the shipment would be delivered to 100 Bass Pro Mills.

[130] While it may be that the times and days on which Mr. Formusa and Mr. Jankovic arranged to meet belie "normal customer relations," this argument presupposes the primary facts upon which it relies: that there was a customer relationship between them. In my view, the evidence does not permit a reasonable inference that Mr. Jankovic was a customer.

[131] To draw the inferences of knowledge and control sought by the Crown in relation to Mr. Jankovic, a jury would be engage in prohibited speculation and conjecture.

XI. CONCLUSION

[132] Mr. Formusa's application is dismissed with respect to all counts against him.

[133] Mr. Jankovic's application is granted and verdicts of acquittals will be entered on all counts against him.

Released: June 13, 2016

Justice P. F. Band